1988Q7 (PLP)

This appeal is directed against the order of Civil Judge‑cum?-Controller, Quetta dated 26‑4‑1987 whereby the eviction application filed by landlord appellant was dismissed. Facts giving rise to this appeal are that an eviction application dated 26‑11‑1979 was moved before Civil Judge‑cum‑Controller, Quetta in respect of demised premises bearing Municipal No.4‑35/21‑A situated at. Gurdit Singh :toad, Quetta on the grounds of sub‑letting, non‑payment of rent due from respondent No. l for a period commencing from 1‑11‑1978 to 30‑9‑1979 and also on the ground that the said premises was required by landlord for construction. The monthly rent of the premises was Rs.1,

000. The respondents contested the aforesaid application and filed written statement on 15‑9‑1983. Learned Rent Controller framed the following issues on 9‑12‑1980:‑ (1)Whether this application is not maintainable in view of legal objections B & C of written statement? (2)?????? Whether the application is bad for misjoinder of respondents Nos. 2 and 3, if so to what effect? (3)?????? Whether the respondent No.1 has sublet the premises to the respondents Nos.2 and 3, if so to what effect? (4)?????? Whether the respondents No.l has defaulted in payment of rent from 1‑11‑1978 to 30‑9‑1979? (5)?????? Whether premises are required by the applicant bona fide and in good faith for reconstruction? (6)??? Relief? In support of the aforesaid issues five witnesses were produced by appellant as well as his own statement was recorded, whereas the respondents produced three witnesses and statements of respondents Syed Asif Ali and Syed Muhammad? Shabbir were also recorded. The learned Controller,, however, dismissed the application filed by landlord, hence this appeal. Heard the learned counsel for the parties. It is vehemently contended by Mr. Muhammad Nawaz Ahmed the learned counsel for appellant that the landlord established fully his case against the respondents for eviction but the overwhelming evidence has not been properly appreciated by the Controller. He referred to documentary evidence that the demised premises consists of an open plot as well as house (Makan) as per Ex.A/3 and Ex.A/4. It was further contended that the landlord obtained necessary permission (Ex.A/2) for construction of a building alongwith a plan of double storey building (Ex.A/1) to be constructed on the aforesaid premises. It was further canvassed that the Rent Controller failed to legally assess the evidence on the point of subletting because the fact that respondent No.l could not be served on the address of Quetta but service could only be effected at his Karachi address fully indicates that he was permanently settled there and it was thus proved that he had sublet the premises in question. On the other hand Mr. Muhammad Arshad Chaudhary urged strenuously that premises in question was an open plot and not a building hence the provisions of Ordinance VI of 1959 were, not attracted. It was further argued in alternative that even if it is covered under section 13(2)(vi) no question of reconstruction arises because it was a commercial plot rented out to the respondent No.l, which cannot be converted into a residential building. Furthermore, landlord has failed to show his willingness that after reconstruction over the plot, tenants would be re‑adjusted as required under section 13 (5‑B) of the Ordinance. The moot question which follows is whether section 13(5‑B) is applicable in case premises is vacated for construction of a 'rented land'. Lengthy arguments were addressed by the counsel of the ,parties on the point. Mr. Muhammad Nawaz Ahmad vehemently urged that Ex.A/3 and Ex.A/4 fully endorse his contention as these documents prove that the rented premises consists of a house and open plot: It was, therefore, urged that the landlord is entitled under law to erect a building over rented land for which necessary building permit was obtained through Ex.A/2 and site plan was approved vide Ex.A/1. Reliance was placed on an authority of Hon'ble Supreme Court in the case of Abdul Hadi alias Abdul Hadi Hasan and 2 others v. Syed Ali Haider and others as reported in P L J 1983 S C

342. The Hon'ble Supreme Court while dilating upon the issues embodied the following principle:‑ "We observe that clause (vi) of subsection (2) of section 13 of the Ordinance also does not impose any restrictions or limitations as to what type of a new building may be built on the site of the old building, after reconstruction. We also note that there is no law which prevents a non‑residential building from being converted, after reconstruction, into a residential one. Consequently, if the contention raised by the petitioners was accepted and sub‑section (5‑B) of section 13 was held to debar a landlord from making reconstruction, ?whereby shops could not be demolished and a residential building constructed on the. site, this would amount to imposing a ?????????? limitation which does not exist in law. ?????????? The reading of both the provisions in harmony would yield the result that subsection (5‑B) of section 13 comes into play ??? only where the old building consisting of shops even after reconstruction retains the character of shops and also in those cases where the old building is a residential building and new building on reconstruction is again built as a residential ?????????? building. This subsection would not apply in cases where a non‑residential building is, after reconstruction, converted into a residential building." Similarly Chaudhary Arshad relied on the case of Zoaib v. Akbar Ali as reported in 1983 S C M R

391. The ratio of the observations in the aforesaid case was that while reconstruction of a building, a landlord should take into consideration the rights of tenants as envisaged in section 13(5‑B). It was further observed that it is not required of a landlord under law to reconstruct new building so as to provide affected tenant exactly the same type of building. However, landlord is required to take into consideration rights conferred upon tenants so that new construction ,is capable of accommodating tenants. Another argument advanced by Ch. Arshad was that commercial plots or rented land, cannot .be converted into a residential building as in the case in hand. I have thoroughly considered the aforesaid two authorities of the honourable Supreme Court on the point. In my humble opinion both the authorities are not relevant inasmuch as they are distinguishable on facts. The distinguishing feature being that in both the aforesaid cases the landlord wanted reconstruction of the 'old building' whereas the demised premises is not a 'building' but a 'rented land' in this case. The area upon which the alleged house is constructed is not ,proved to have been given to the tenants. However, the respondent No.l admits that a plot was obtained by them upon which they constructed a Foundry Workshop and with the permission of the landlord they also raised some construction like sheds, stores, rooms alongwith boundary wall. The fact remains that originally the landlord leased out a rented land and not a building. This makes the dispute pore controversial. In both the cited cases there were old buildings which the landlords wanted for reconstruction but here in this case it was a 'rented land' which ;vas leased out to the tenants. The main question for determination therefore is whether section 13(5‑B) of Ordinance would provide same protection to a tenant in case of erection of building on a rented land as that which is provided to a tenant who is occupying an old building which is required for reconstruction. For determination of the above question it would be expedient to read section 13(2)(vi) with section (5‑B) of the Ordinance. Both the aforesaid sections are hereby reproduced:‑ "13(1) ..................... (2)??????? (i)???????. ( ii )???????. (a)????????. (b)????????. (iii)???????? (iv)???????? (v)???????? (vi)?????The building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building or the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated." (5‑B) Where, in pursuance of an order under clause (vi) of subsection (2), a landlord has obtained possession of a building (in this subsection referred to as the old building), and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation, and the Controller shall make an order accordingly in respect of the area applied for or such similar area, as, considering the location and type of the new building? and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality." ? It becomes crystal clear from bare perusal of section 13(2)(vi) that the legislature empowered the landlord to get possession of a rented land if it is reasonably and in good faith required by him for 'erection of a building'. Similarly it is laid down therein that the landlord is entitled to possession if he requires in good faith an old building to be demolished and replaced by a new building. Thus, reconstruction of old building and erection of a building on rented land are not synonymous. Particularly so when these are read with subsection (5‑B). From perusal of subsection (5‑B) two factors become evidently clear viz. firstly that .the word 'building' finds mention in subsection (5‑B) but 'rented land' has nowhere been mentioned, secondly, the word reconstruction though not expressly used but it is implied because if a landlord constructs a new building then the tenant would be entitled to get possession of the new building after such construction, meaning thereby that tenant becomes entitled to repossession if instead of an old building a new building is reconstructed. It implies that subsection (5‑B) pertains to a new building. The new building can A be constructed only when there exists an old building. But erection of a building is different as it will not be a new building but a building. The word rented land was thus intentionally omitted by, legislature in section 13(5‑B). A tenant, therefore, who is in occupation of a rented land is not protected or shall not be entitled to get 'B possession after construction or erection of a building on rented land. However, he is so entitled in case he is in occupation of building which is required for reconstruction as envisaged in section, 13(5‑B). The conclusions of the aforesaid discussion may be summed up as under i.e.:‑ "that subsection (5‑B) protects the rights of tenants who were in occupation of an existing building to get possession of the same if it is vacated for reconstruction but a tenant of a rented land is not so entitled if a building is erected on an open plot or rented land'." In this case it has not been proved that any building was occupied by tenants. According to tenants they were leased out an open plot for commercial purposes where they constructed a Foundry workshop etc. In such circumstances the question that subsection 5‑B will come into play and impose a limitation on‑the rights of landlord to hand over possession to tenants after constructing building is not tenable. In cases where the question of erection of a building arises on a rented land, subsection 5‑B provides no protection to the tenants because the word rented land appears to have been intentionally omitted by the legislature. It protects the rights of only those tenants who are already occupying a building rented out to them by landlords. It is only then that the landlord is under a statutory obligation to accommodate tenant in the new building. The conclusion thus would be that under section 13(2)(vi) a landlord‑ has got the right to erect a building on a rented land provided it is required bona fide and in good faith. But the landlord cannot be refused possession ,solely on the ground that he must hand over possession to the tenants of the t? rented land after erection of a building as is the case where the landlord requires an old building to be reconstructed in which case he is bound under law to give possession to tenants, in the new, building as contemplated in section 13(5‑B). Thus the conclusions drawn by the learned Controller that the landlord cannot be given possession of the rented land since he has failed to show his willingness that after reconstruction he will put the tenants in possession are not sustainable. The next question raised by Mr. Arshad Chaudhary seas that the disputed area was leased out for commercial purposes, therefore, the landlord is debarred to construct a residential building on the same. It may be observed in the first instance that the landlord wants to construct 11 shops as observed by the Controller. He also intends to build a residence for his personal use on the first floor of the proposed building. However, even if he would have constructed residence alone there was no bar under law as observed by the Hon'ble Supreme Court in case of Abdul Hadi as reported in P L D 1983 S C

342. The relevant observations are as under: ‑ "It is true that under section 13(5‑B), the tenant is entitled in case where the landlord has obtained the possession of a building on the ground of reconstruction to the possession of the area in the new building comparable to the one he was occupying in the old building and that he will be unable to exercise this option if the shops are converted into a residential building through reconstruction which makes no provisions for any shop. But this does not imply that because of this, the provisions of subsection (5‑B) of section 13 are rendered nugatory. It is cardinal rule of interpretation that all parts of an enactment are to be read together and all parts thereof given due effect and that effort must be made to harmonise the seemingly inconsistent provisions". It is now to be seen whether landlord's requirement is bona fide and in good faith or not? From reviewing the evidence I conclude that the landlord has proved his bona fides as he has obtained a: building permit as required under law and has got approved the site`, plan by Quetta Municipal Corporation of the building to be erected over the rented land. It may father be pointed out that the landlord produced Muhammad Naseem Qadri the Municipal Engineer who admitted Exh.A/1 and A/2 and his signatures thereon. In cross‑examination his statement as far as the issuance of building permit or approval of site plan are concerned went unchallenged. This has further been affirmed by the landlord M. A. Aziz in his statement. I am, therefore. of the firm opinion that the requirement of landlord has been proves: to be in good faith and bona fide. The learned Controller while deciding issue No.5 has rejected the plea of bona fide and good faith of landlord on the ground that as the landlord failed to show his willingness that after reconstruction he will put the tenant in possession of new building, therefore, he concluded that the requirement is not bona fide, as such conclusions are not tenable as discussed hereinabove. The remaining issues need not be considered as I am of the view that the landlord has proved his bona fide requirement and good faith in obtaining the possession of the rented land. I, therefore, set aside the order of the Controller dated 26‑4‑1987 and accept this appeal. The respondents/ tenants are hereby ordered to hand over the vacant possession of rented plot to the landlord. However, since the tenants have already raised a Foundry Workshop, the removal of which may take sometime, I, therefore, allow four months time to the tenants to hand over vacant possession of disputed land to the landlord. I pass no order as to costs. H.B.T./301/Q????????????????????????????????????????????????????????????????????????????????? Appeal accepted.