P L D 1975 Supreme Court 54 (PLP)

MUHAMMAD GUL, J.‑These 31 appeals by special leave call in question the vires of section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (West Pakistan Ordinance VI of 1959) and Provincial Government Notification No. Jud.

1. II (14)/61 dated 19‑11‑1961 issued under the said section to exempt the properties owned by Anjuman Himayat-i‑Islam, Lahore, from the application of the Ordinance. Anjuman Himayat‑i‑Islam is a premier educational and charitable institution in the Punjab and is registered under the Societies Registration .Act, 1860. It owns extensive immovable property, residential and non‑residential in Lahore and elsewhere. The appellant in each case is a tenant in a commercial tenement belonging to the Anjuman and situate at Brandreth Road, Lahore, on the basis of monthly tease. As a sequel to the aforesaid notification, the Anjuman issued 11oilce to each appellant to terminate his tenancy, and on his refusal to vacate the premises filed civil suit on the 30th April 1966, against each of them for eviction. The suits were resisted by the appellants on the ground that the tenancies created in their favour were protected under the West Pakistan Ordinance VI of 1959 and that section 3 of the Ordinance and the notifica tion issued thereunder were ultra vires. Certain other objections were also taken which however, are not material for the purpose of this judgment. The learned trial Court by a consolidated judgment dated 11‑2‑1970 decreed the respondent's suits on the findings that section 3 and the noti fication issued thereunder were valid. The above judgment was upheld on 1st appeal, by the Additional District Judge vide judgment-dated 15‑9‑1970 and in second appeal by a learned Single Judge of the Lahore High Court, on 24‑3‑1972. Certificate of fitness for appeal under clause 10 of the Letters Patent having been refused, leave was granted by this Court in each case, to examine the vires of section 3 of the Ordinance and the notification dated 19‑11‑1961, issued thereunder. The vires of section 3 of the Ordinance was questioned on the ground that it gave uncontrolled and unguided power to the executive to nullify the beneficial Provisions of the Ordinance which was essentially a piece of social legislation enacted to alleviate the hardship created by the acute shortage of residential and commercial accommodation in cities. Section 3 of the Ordinance and notification read as under:‑ "Government may direct by a notification published in the Gazette that all or any of the provisions of this Ordinance shall not apply to any particular building or rented land or any class of building or rented land." 'In exercise of the powers conferred by section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of Wes: Pakistan is pleased to direct that the provision of the said Ordinance shall not apply to the properties owned by the Anjuman Himayat‑i- Islam, Lahore." Mr. A. K. Brohi, learned counsel for the appellants however, frankly conceded at the outset that in view of the judgment of this Court in Fast & West Steamship Company v. Pakistan (P L D 1958 S C (Pak.) 41) and Province of East Pakistan v. Sirajul Haq Patwari (P L D 1966 S C 854), it is not possible for him to attack the vires of the section on the ground of excessive delegation of power to the executive without indicating any guideline for its exercise. Learned counsel however, argued that since the power reserved under the section is power of exemption, it must be construed strictly so that the scope of exemption is not enlarged. On that premise, learned counsel argued that the exemption allowed in favour of the properties belonging to the respondent Anjuman apparently to enable it to Increase rent to square up its annual budget was antithesis of the plain object of the Ordinance, which according to its preamble was "to restrict the increase of rent" of residential and commercial premises within urban areas and thereby to curb the cupidity of the landlord. It was stressed by learned counsel that the provisions of the Ordinance cannot be used as a means to enrich the Anjuman and the fact that Anjuman was a charitable and educational institution was wholly irrelevant. Therefore, according to learned counsel, the notification must be struck down on that score. Mr. Brohi further argued that section 3 of the Ordinance envisages exemption "of any particular building . . . . or any class of building" from the applica tion of the Ordinance. But according to him a building can be classified only with reference to its inherent character, or attribute and not with reference to its ownership. On that premise, the notification, according to learned counsel was not within the ambit of section

3. The first limb of the argument overlooks the fact that the Ordinance makes serious inroads in the full enjoyment of ownership in immovable property situate in urban areas. This includes owner's right to give his property on agreed rent, for a specified period and to terminate the lease in accordance with its terms and tenor as provided in the Transfer of Property Act, 1913. This has been universally accepted as a necessary, concomitant of ownership in property. Therefore, the whole object of the impugned notification is to restore the normal rights of ownership to the respondent Anjuman by doing away with the encumbrances created by) the Ordinance against the full enjoyment of its property by the Anjuman'. It is important to bear in mind, that these encumbrances in favour of the tenants are creation of the statute, which the statute itself abolishes or gives the executive the power to abolish in certain cases. On that view of the matter, therefore, the effect of the notification is not to deprive the appellants of any right inhering in them with reference to the property, but only to restore what is otherwise a normal incident of ownership under section 107 of the Transfer of Property Act, 1882. As to the second part of the argument, subsection (3) of section 1 of the Ordinance furnishes a complete answer. It exempts altogether the evacuee property from the application of the Ordinance. The evacuee character of the property is determined with reference to its ownership by person who under the relevant law is an evacuee as distinguished from any inherent character of the property itself. Similarly, section 3 of the Canton ment Rent Restriction Act, 1963 (Act XI of 1963) exempts from its purview, besides the evacuee property as defined in Act XII of 1957: . . . . . . . . . any property owned by the Central Government, any Provincial Government, Railway, Port‑trust, or Cantonment Board or any property owned, managed or controlled by any local authority under the administrative control of the Central Government or of any Provincial Government." This statute is in pari materia with the Ordinance under which the impugned notification has been issued. This is a clear legislative edict in favour of classification of property with reference to its ownership. That properties have been classified with reference to their ownership and granted exemption under Common Law for the relevant purpose is also clearly brought out in monograph 1468 of Halsbury's Laws of England, 3rd Edition, Volume XXIII, which reads:‑ "A tenancy is not protected where the landlord is the Crown or a local Authority, a , Development Corporation, a Housing Association . . . . . . . . . . . . or a Housing Trust . . . . . . . . . . . . It, therefore, becomes, manifest that ownership of a property, by a particular person or an authority can be valid basis for its classification for'' the relevant purpose. For the foregoing reason; all the 31 appeals must fail and are dismissed with one set of costs. S. A. H. Appeals dismissed.