P L D 1956 (W (PLP)

LARI, J.

‑The plaintiff has filed this suit for recovery of possession of a portion of Flat No. 1 on top floor, in Allahwala Building standing on plot No. 37, Preedy Quarters, Bunder Road, Karachi. The plaintiff's case as revealed in the plaint is that he was a tenant of the entire Flat No. 1, he proceeded to Delhi temporarily along with his family in September, 1948, to celebrate the marriage of his son, returned by air to Karachi on 20th October, 1948, while his family members followed him and returned to Karachi on 13th November, 1948, on 8th November, 1948, the entire flat was allotted to the defendant by the Rent Controller and he was actually ejected on 15th November, 1948. The plaintiff approached the Collector of Karachi who referred the matter to Mr. S. A. Mir, Special Officer Refugee

Rehabilitation and Rent Control Branch, Karachi. Mr. Mir cancelled the allotment in favour of the defendant and ordered immediate restoration of possession over the entire flat No.1 on 17th February 1949. The plaintiff, however, got possession only of a portion of the flat while the portion in dispute remained in possession of the defendant. All subsequent efforts to get possession of the portion in dispute failed and then he filed this suit. The defendant filed a written statement in which he alleged that he was in possession of the disputed portion of the flat by virtue of an order passed by Mr. Hashim Raza the then Administrator of Karachi on 18th April, 1949, that the Administrator was final authority and the order of Mr. Mir could not operate in the face of the order of Mr. Hashim Raza. The following issues were framed (1) Was the plaintiff ejected from the premises in suit in pursuance of an order of allotment illegal ab‑initio as alleged by the plaintiff in his plaint? If so what is its effect? (2) What is the legal effect of the order referred to Special Officer, Refugee‑Rehabilitation and Rent Control Branch, Karachi, and by the Chief Judge, Small Causes Court, Karachi? (3) What is the legal effect of the Order referred to in paras. 5 and 13 of the written statement of the defendant and passed on 18th April, 1949, by the Administrator of Karachi? (4) Is the defendant in wrongful possession of the premises in suit ? If so what is its effect? (5) Whether the suit is barred by the Rent Restriction Acts. (6) Whether the defendant is entitled to special costs. The plaintiff examined himself and one Aziz‑ur‑Rehman P. W. 1 is a formal witness and had been asked to produce certain documents which he did. The plaintiff Lakhmichand Malik P. W. 2 stated that the flat had been in his tenancy since 1940 ; he went to Delhi on 20th September 1948, to celebrate the marriage of his son which he took place on 10th October, 1948 ; he had given information to the Rent Controller, the landlord, Banks and Post Office that .he was going only temporarily; he returned on 20th October, 1948, while his son, son's wife and his own wife returned on 13th November, 1948, and that he came to know of the allotment on 14th November, 1948. The witness further stated that his application was allowed by Mr. Mir, on 17th February, 1949, but he could not get possession in pursuance of that order, but got possession of half the flat in pursuance of the order of Mr. Hashim Raza dated 18th April, 1949. In cross‑examination the witness stated that he was given two rooms, one kitchen, one bath room and one latrine and his family consisted of four members comprising himself, his wife, his son and son's wife. The witness further admitted that the defendant had been allotted two rooms one store room and one latrine and the family of the defendant consisted of 12 members. He further admitted that portion of the flat allotted to him was larger than the one allotted to the defendant. The flat had two entrances and under the orders of Mr. Hashim Raza he came into possession of the front entrance while the defendant got the back entrance. The plaintiff filed several documents which would be noticed at their proper places. The defendant examined himself. He stated that the plaintiff had vacated the premises when original allotment was made in his favour and that before the plaintiff left the premises he had met the plaintiff who had demanded Rs. 3,000 as pugri. The witness further deposed that he was paying rent to the landlord in respect of his share while the plaintiff paid rent in respect of his share. The witness admitted in cross‑examination that the plaintiff was present when he got possession but alleged that no one else was there. The defendant also filed documents which would be noticed later. The issues do not correctly represent the points taken by both sides at the bar and I may for convenience sake enumerate the points which require decision in the case :‑ (1) Was the flat vacated at the time allotment proceed ings in respect of it were initiated for the purposes of Sind Rent Restriction Act X of 1947 ? (2) If the reply be in the negative, were all allotment proceedings null and void (3) Was the order passed by Mr. Mir on 17th February, 1949, cancelling the allotment order dated 8th November, 1948, legal and binding ? (4) Was the Administrator Mr. Hashim Raza competent to pass the order that he did on 18th April, 1949 allotting the disputed portion of the flat to the defendant ? (5) Are the allotment orders made on 8th November, 1948 and 18th April, 1949 valid and subsisting ? (6) Whether the suit is barred by the Rent Restriction Act Decision with. reasons thereof. Point No. 1.‑Was the flat vacant at the time allotment proceedings in respect of it were initiated for the purposes of Sind Rent Restriction Act X of 1947 ? It is well settled that Rent Controller has jurisdiction to allot a premises when he receives information that any residential premises are vacant or about to become vacant. Section 15 (1) of Sind Rent Restriction Act X of 1947, runs thus:

"15 (1) When the Controller receives intimation under section' 13 or section 14 or otherwise receives information that any residential premises are vacant, he may direct the landlord to let the premises when they become vacant or, if the premises are vacant, the vacant premises to a person or persons specified in such direction." Sub‑clause 4 of the same section however says "For the purpose of this section so much of any residential premises as is, in the opinion of the Controller, occupied in excess of the reasonable needs of the tenant shall be deemed to be vacant." The result is that a premises is deemed to be vacant either when no tenant is in actual possession or the accommodation in possession of the tenant is in excess of his reasonable requirements. It has to be seen, therefore, whether the plaintiff was in actual possession of the flat and if so whether the accommo dation in his possession was in excess of his reasonable requirements ? The original allotment was made on 8th November, 1948 and the plaintiff's case is that he was present in Karachi though his family members were away in Delhi. On this point we have got only the statement of the plaintiff. The defendant alleged that the plaintiff was absent although he admits that on 14th November, 1948 the plaintiff was present in Karachi. It, however, appears from the documents filed in the case that before the plaintiff left for India in September, 1948, he had given intimation to all concerned that he was going only temporarily to India. The plaintiff has also filed invitation Card Exh. 7/1. The plaintiff had got notices published in the Dawn dated 11th and 12th September, 1948, that he was proceeding temporarily. The evidence on this point is not contradicted by the defendant. There can be no doubt then that when the plaintiff and his family left for India in September, 1948, the plaintiff gave out that he was going only temporarily. It may be that the plaintiff returned alone in November, 1948. On the basis of evidence it would be more reasonable to hold that it has not been proved that the plaintiff had vacated the premises on or before 8th November, 1948. Most probably the plaintiff and his family had gone away leaving a Chaukidar to look after the premises in their absence. But there can be no doubt that the flat was in excess of the requirements of the plaintiff. The plaintiff's family consisted of himself, his wife, his son and son's wife. In a town like Karachi such a family does not require four rooms, three bath rooms, and two kitchens. I have therefore come to the conclusion that the plaintiff was in possession of excess accommodation and to that extent the premises must be deemed to be vacant. Point No. 2.‑If the reply be in the negative were all allotment proceedings null and void ? I have held under the foregoing issue that there was vacancy within the meaning of section 15 of the Sind Rent Restriction Act and consequently allotment proceedings could be initiated. It may be noted here that the Administrator actually divided the flat into two portions on the basis of reasonable requirements of the plaintiff and the defendant. Point No. 3.‑Was the order passed by Mr. Mir on 17th February, 1949, cancelling the allotment order dated 8th November, 1948, legal and binding ? The sheet anchor of the plaintiffs is the order passed by Mr. Mir on 17th February, 1949. This order is Exh. 5/18. Mr. Mir passed this order by virtue of Notification marked Exh. 5/4. It runs thus :‑ "In exercise of the powers conferred upon him by section 20 (2) of the Sind Rent Restriction Act, 1947, as amended by section 5 of the Sind Rent Restriction (Amendment) Act, 1948, XXVI of 1948 read with Government of Pakistan, Ministry of Interior (Home Division) Notification No. 1/2A/48‑Kar., dated 23rd July 1948, the Administrator of Karachi is pleased to order that the powers conferred on him by subsection (1) of section 20 of the Sind Rent Restriction Act, 1947, shall be exercised by Mr. S. M. Mir, Bar‑at‑Law, retired District judge, until further orders". Section 20 of the Sind Rent Restriction Act was substi tuted by Central Act XXVI of 1948 which runs thus :‑ "(1) The Provincial Government may on an application to be made within seven days of any order made by the Controller under this Act call for the relevant record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the pro ceedings, if any, in which the order was made, and may pass such order thereon as it deems fit and may stay the order of eviction under section 15 cf the Act pending the hearing and disposal of the matter". (2) The Provincial Government may by general or special order direct that the powers conferred on it by subsection (1) shall, subject to such conditions as may be specified in the order, be exercisable by a person not below the rank of judge, Small Cause Court." The Central Act XXVI of 1948, which introduced the above section came into force on 10th January, 1949. Before this amending Act section 20 stood thus :‑ "The Provincial Government may within fifteen days of any order made by the Collector in appeal under section 19 call for the record of such appeal for the purpose of satisfying itself as to the legality or propriety of any decision or order made thereon, and as to the regularity of the proceedings held therein. If in any case, it shall appear to the Provincial Govern ment that any decision on such appeal should be modified, annulled or reversed, it may pass such order thereon as it deems fit". It would be seen that prior to 10th January, 1949, the Provincial Government had no authority to delegate its power of deciding revision to a third person. This power was conferred on the Provincial Government on 10th January, 1949, by the Amending Act XXVI of 1948. The question is, could the Administrator on 21st January, 1949, delegate his powers under section 20 to Mr. S. M. Mir. The Admi nistrator is not the Provincial Government. He got the powers of the Provincial Government by virtue of Notification No. 1/2A/48‑Kar. dated 23rd July, 1948. This Notification is to be found in P L D 1949 Central Acts and Notifications page

433. It runs thus .‑ "No. l /2A/48‑Kar.‑In pursuance of Article 5 of the Pakistan (Establishment of the Federal Capital) Order, 1948, the Governor‑General is pleased to direct that, subject to such general or special instructions as may from time to time be given to him by the Central Government, the Administrator shall, with effect from the 23rd July 1948, and ‑ except as provided below, have, in respect of Karachi all the powers and duties conferred or imposed on the Government of Sind under any enactment, notifi cation, order, rule or bye‑law referred to in Article 6 of the said Order". Article 6 of Pakistan (Establishment of the Federal Capital) Order, 1948, may be reproduced at this stage. It runs thus :‑ "Unless and until other provision is duly made, all enactments and laws, and all notifications, orders, schemes, rules, forms or bye‑laws issued, made or prescribed there under, which immediately before the date appointed under article 3 are in force in, or prescribed for, any of the areas comprised in Karachi shall continue to be in force and shall have effect in Karachi". The date appointed under Article 3 was 23rd July, 1948. The cumulative effect of the notification and Article 6 of the Pakistan, (Establishment of the Federal Capital), Order of 1948 is that the administrator had all the powers which were exercisable by the Sind Government on 23rd July, 1948. On 23rd July, 1948, the Provincial Government had no jurisdiction to delegate its revisional power to a third person. Such a power came to existence in January, 1949. The Admi nistrator, therefore, could not have those powers which were conferred on a Provincial Government subsequent to 23rd July, 1948. Inescapable conclusion is that on 21st January, 1949 the Administrator had not the powers which authorised a Provincial Government to delegate its revisional powers under section 20 (2) of the Sind Rent Restriction Act[ as amended in its application to Karachi. The Administrator had the duty to decide the revision himself. Delegation of powers was, therefore, illegal and Mr. Mir had no authority to set aside the allotment order. His order dated 17th February, 1949 is, therefore, null and void. The decision of Mr. Mir is invalid for another reason. Section 20 (2) provided that the powers of revision could be exercised by a person not below the rank of judge Small Cause Court. Mr. Mir did not hold any position in the judiciary of Pakistan. He happened to be, at the time of Notification, a retired District Judge. A retired District judge cannot be said to be a person holding the rank of a Judge. He had ceased to be a judge by that time, and was an officer on Special duty on the Administration side. For the above reasons, I have come to the conclusion that the order dated 17th February, 1949 of Mr. Mir Exh. 5/18 is null and void and had not the effect of cancelling the allotment made in favour of the plaintiff (sic) on 8th November 1948. Point .71 (o. 4.‑Was the Administrator Mr. Hasham Raza competent to pass the order that he did on 18th April, 1949, allotting the disputed portion of the flat to the defendant ? Under the unamended section 20 as it stood in the Original Act X of 1947 the Provincial Government was the final authority and could modify, annul, reverse or pass such orders as it deemed fit in regard to allotments, and this power of the Provincial Government had been conferred on the Administrator by the Notification No. 1/2A/48‑Kar., dated 23rd July, 1948, quoted above. It was argued that the Administrator having delegated his power to Mr. Mir could not exercise the revisional powers himself. I have already held that delegation was illegal and the order of Mr. .Mir was null and void. The revision in law had not been decided by Mr. Mir and it was open to the administrator to pass such orders as he thought fit. Even if I had held that delegation was proper I would have been inclined to hold that in case of executive orders and the allotment is an executive order, it was open to the Administrator to review the order passed by Mr. Mir. However, this aspect need not be considered in this case as delegation being illegal, the powers of revision could not be exercised by Mr. Mir and revisional powers in regard to the allotment in question was first exercised by Mr. Hashim Raza the Administrator on 18th April, 1949. I am, therefore, bound to hold that the Administrator was fully competent to pass the order of allotment dated 18th April, 1949 by which he allotted the premises in question to the defendant. Point No. 5.‑Are the allotment orders made on 8th November, 1948, and 18th April, 1949, valid and sub sisting ? This is most crucial point in the case. It has been argued by the learned counsel for the plaintiff that Sind Rent Restriction Act X of 1947 came to an end on 27th March, 1948 and any order purporting to have been made under the original Sind Rent Restriction Act or amended Sind Rent Restriction Act was inoperative. It is true that Sind Rent Restriction Act X of 1947 died its natural death on the midnight of 27th March, 1948, vide Mufti Masroor Ahmed v. R. M. Mithani (P L D 1953 Sind 20). It was, however, argued that all acts done or purporting to be done under the Sind Rent Restriction Act X of 1947 were validated by Ordinance I of 1953. The counsel for the plaintiff replies that the Ordinance itself was repealed by Act VIII of 1953. I have, therefore, to determine what is the effect of Ordinance I of 1953 and Act VIII of 1953 on the allotments purporting to be made under Sind Rent Restriction Act after 27th March, 1948, as was the position in this case. It has already been noted that' the original allotment order made on 8th November, 1948 was modified by allotment order dated 18th April, 1949. Karachi Rent Restriction Ordinance I of 1953 was gazetted on 24th February, 1953. I may here quote the relevant sections Section 1 (3).‑It shall come into force at once and shall be deemed to be taken effect on the 28th day of March 1948. Section 2 (5).‑Act means Sind .Rent Restriction Act, 1947. Section 29.‑Every person from, time to time appointed or deemed to have been appointed as Controller under the Act shall be deemed to have been so appointed under and for the purposes of this Ordinance. Section 32.‑Any order or rule made under the Act or purporting to be made hereunder after the 27th day of March 1948, shall, in so far as it is not inconsistent with the provisions of this Ordinance, shall be deemed to have been made under the provisions of this Ordinance and shall have effect accordingly. Section 15 of the Rent Restriction Act X of 1947 which empowered the Controller to allot premises and section 19 of the Act conferring revisional powers on the Provincial Government and making it final authority were reproduced in sections 15 and 19 of the Ordinance. The effect of the sections 1 (3), 2 (5), 29 and 32 read with provisions of section 15 and 19 of the Ordinance is that all allotments purporting to be made under Sind Rent Restriction Act X of 1947 were validated and became legal. This Ordinance was admittedly repealed by Karachi Rent Restriction Act, 1953. Section 29 of the Act is to that effect. The question is, does the repeal of the Ordinance take away the effect of the Ordinance. Reference was made by the plaintiff to the case M. M. Isphahani Ltd. v. Haji Muhammad Sultan (P L D 1955 Sind 78). My brother Muhammad Bakhsh, J. observed :‑ "The learned advocate for the defendant has relied on Ordinance I of 1953 and argued that in this Ordinance the power of allotment was there and therefore this order was saved. But this Ordinance was repealed by the Act of 1953 and the effect of repeal is as if the Ordinance never existed on the statute Book. I regret I cannot endorse the above observation. It seems that provisions of section 6 of the General Clauses Act were not brought to the notice of my brother Muhammad Bakhsh, J. Section 6 of the General Clauses Act X of 1897 runs thus :‑ "Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not‑ (a) revive anything not in force or existing at the time of which the repeal takes effect ; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or (c) affect right, privilege obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or (e) affect any investigation. legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed". The provisions of sub‑clauses (b), (c) and (e) are too clear and explicit to need any comment. I may point out that by virtue of section 30 an Ordinance under section 42 of the Government of India Act, 1935 is deemed to be included in the expression Central Act. Two points could be raised though they were not raised in this case. One is that the Ordinance was temporary and its effect was intended to be for a limited period. There are cases which have some bearing on the point. But in view of the provisions of section 30 of the General Clauses Act, the objection would have no force as the provisions of section 6 clearly contemp lated that the effect of repeal in case of ordinance would be the me as in case of an ordinary Act. The second objection may be that section 6 of the General Clauses Act applies to repeal simplicitor. If a repeal is accompanied by re‑enactment then section 6 of the General Clauses Act will have no application. To this effect is the decision of Allahbad High Court in case (Firm) Danmal Parshotam Dass v. (Firm) Babu Ram Chhote Lal, (A I R 1936 All. 3) and in case Benares Bank Ltd. v. Shri Sri Ptakasha Bhagwan Das and others (A I R 1946 All. 269). These cases no doubt laid down that where a repeal is accompanied by re‑enactment then the provisions of section 6 would not apply. There are authorities to the contrary as well. In Statutory Construction by Crawford at page 657 the following passage occurs "The authorities are divided as to the effect of simul taneous repeals and re‑enactments. Some adhere to the view that the rights and liabilities accruing under the repealed Act are destroyed, since the statute from which they sprung has actually terminated . . . .Others, and they seem to be in the majority, refuse to accept this view of the situation, and consequently maintain that all rights and liabilities which have accrued under the original statute are preserved and may be enforced". The aforesaid two decisions of Allahabad High Court were dissented from by a Full Bench in case P. R. Krishin Rao v. Municipal Sales Tax Officer (A I R 1954 Trav. Coch 518). Assuming that the view expressed in 1936 All. 3 is correct the present is not a case of repeal and simultaneous re‑enactment. Sind Rent Restriction Act X of 1947 was a composite legislation. It dealt with two subjects, allotment of premises and determination of fair rent. The Karachi Rent Restriction Act VIII of 1953 on the other hand had nothing to do with allotments, but mainly concerned itself with determination of fair rent and consequential proceedings. The position, therefore, is that the Karachi Rent Restric tion Act did not enact the provisions of Karachi Rent Ordinance I of 1953 regarding allotment. The entire Ordinance was repealed but enactments therein regarding allotments were not repeated in the Karachi Rent Restriction Act. Therefore, so far as legislation with regard to allotment is concerned Ordinance was repealed without simultaneous re‑enactment. In regard to allotments, therefore, there was pure and simple repeal and even according to the dictum of Sir Shah Suleman the provisions of section, 6 General Clauses Act would apply to such a repeal. I have given anxious consideration to the points involved and have come to the conclusion that allotment orders purporting to be made under Sind Rent Restriction Act after 27th March 1948, were validated by Ordinance I of 1953 and its repeal by Karachi Rent Restriction Act of 1953 has not affected the validity of these orders. The net result would be that the order of Administrator dated 18th April 1949, allotting the premises in dispute to the defendant subsists and is valid. Point No. 6.‑Whether the suit is barred by the Rent Restriction Act ? Section 22 of Rent Restriction Act (X of 1947) ran thus

"An order made by the Provincial Government under section 20 and, subject to the provisions of that section, an order of the Controller or the Collector shall be final and shall not be called in question in any Court". I have already held that the order of Administrator dated 18th April 1949 was made under section 20 of the Rent Restriction Act and is valid. Once it is held that the order passed by the Administrator was valid, became final, it cannot be questioned in any Court. The defendant was in possession by virtue of the allotment order made by the Administrator under section 201 of the Sind Rent Restriction Act and the plaintiff is not entitled to question‑ the validity thereof. The result is that the suit fails and is dismissed with costs. A. H. Suit dismissed.