1986 PLP 889 (CLC)

Reliance was also placed on Zoab and 5 others v. Akbar Hussain 1983 S C M R

391. It was an appeal filed against the judgment of the Sind High Court reported in 1981 C L C

592. In this case the tenant had vacated a shop on the front side on an agreed arrangement that he will be put in possession of shop in the new building. A reasonable premises was available in which tenant could have been fairly and justly accommodated but the landlord maneaourred in such a way as to gain advantage for himself. Therefore, the High Court did not allow the landlord to occupy the front portion and give the back portion to the tenant who was a shopkeeper. The Supreme Court upheld the judgment and it was observed as follows:‑ "There can be no cavil against the dicta laid down in the case of Abdul Bari; Abdul Manan and Ghulam Nabi cited by the learned counsel, that the landlord is in no way required by law to reconstruct the new building so as to provide the evicted tenant exactly the same type of building or accommodation as occupied by him earlier or in any way to keep his needs into consideration. However, as pointed out in Ghulam Haider's case, the landlord is required to take into consideration the rights conferred by subsection (5‑B) of section 13 of the Ordinance on the tenant so that the new construction is capable of accommodating, dating the tenant. Subject to this restriction the landlord is free in the matter of nature and type of construction for purposes of the new building. On the other hand Mr. A.A. Fazeel the learned counsel for the respondent has cited several authorities of the High Court and Supreme Court to show that the need of the tenant need not be taken into consideration while constructing the new building. In this regard reliance was placed on Abdul Manan v. Haji Karam Ali and others P L D 1971 Quetta 1 where it was held that 'once it is held that the landlord is entitled to rebuild his property the tenant cannot question the nature of the reconstruction of the building on the ground that it would not suit his requirement'. The learned counsel for the respondent referred to Abdul Bari v. Khadim Hussain P L D 1978 S C 78 where it was held: ‑ "The question, however, is whether the law prevents a non residential building from being reconstructed into a residential one. Mr. Noori's contention is that if this is permitted then the provisions contained in subsection (5‑B) of section 13 of the Ordinance would be rendered nugatory, as in that case the tenant of a non‑residential building could not, obviously, ask to be put into possession of the new building owing to the change in its character. The learned counsel, therefore, thinks that the provisions contained in clause (vi) of subsection (2) of section 13 should be construed as being subject to subsection (5‑B) thereof. We regret we cannot subscribe to this line of reasoning, as we find that clause (vi) of subsection (2) of section 13 of the Ordinance does not, by itself, impose any restriction or limitation as to the nature and purpose of the new building which is to be reconstructed in place of the old building. If this clause is to be read as being subject to the provisions of subsection (5‑B) of the same section in the sense that the nature and character of the building cannot be changed by reconstruction, then the result would be to prevent future development of property even though its environment and the requirements of the community at large, may have changed. Such an interpretation would be altogether unreasonable and against the public interest, and should be avoided unless the words of the statute are so clear and unambiguous as to make it inevitable. This does not appear to be the case here. We consider, there, that the ground of reconstruction mentioned in clase (vi) of subsection (i) of section 13 does not limit the same to reconstruction of a building of the same type and character and for the same purpose, namely, residential or non residential as the case may be. However, the provisions of subsection (5‑B) would come into play if the reconstructed building is of the same type and character and suitable for the same use as was the old building. In other words, the provisions contained in clause (vi) of subsection (2) of this section are subject to subsection (5‑B) thereof only to this limited extent, and to the extent of preventing a conversion, by reconstruction, of one type of building into another. In Ghulam Nabi v. Mushtaq Ahmed P L D 1980 S C 206 it was held as follows: ‑ Now, there is ambiguity about the words 'reasonable' and 'bona fide' and if, for example, the effect of the reconstruction is substantially to develop and improve a property, the landlord's requirement is bona fide and reasonable, as held in B.D. Pulumji v. Sir Dinshaw Manekji Petit 22 Bom. L R 880, in Hasan Ali v. Ahmad Khan P L D 1960 Kar. 23 and in Maula Dad v . Sardar Khan P L D 1972 Quetta

39. On the other hand, if the Legislature had intended to relate the reconstruction of a building to the tenant's requirements, as submitted by learned counsel it would have enacted accordingly, but it has not. On the contrary, subsection (5‑B) which was also inserted in section 13 by West Pakistan Ordinance XXI of 1965, reads:‑ (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... and the Controller shall make an order accordingly in respect of the area applied for or such smaller area, as, considering the location and types 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. This subsection only confers a right on a tenant to a lease of they demised premises after their reconstruction and as the Controller is empowered to lease to the tenant in the new building a smaller area than the premises originally demised to him, this express provision is inconsistent with the proposition that a landlord can reconstruct his property only in accordance with the needs of his tenant. Secondly, the option conferred on the tenant by this subsection continues until the completion of the new building and its occupation by another person. In view of the long delays, this can only be many years after the landlord's reconstruction plan has been approved by the local Municipality, therefore, the plea that the landlord's rebuilding plan must conform to his tenant's requirements would lead to absurdity Thirdly, whilst a landlord cannot evict his tenant except on the grounds prescribed in the said Ordinance, a tenant is free to vacate the demised premises after giving the contractual or statutory notice. As a tenant can terminate his lease unilaterally, it would be extremely unjust and unreasonable if the landlord's right to rebuild and develop his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the Legislature. In Abdul Hadi and 2 others v. Ali Haider and others P L D 1983 S C 342 it was observed: ....Section 13(2) (vi) of the Rent Restriction Ordinance enables a landlord to seek eviction of his tenant if the building occupied by him is required for reconstruction and the landlord has obtained the necessary sanction for its from the local authority competent to sanction the reconstruction. 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 a 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. We observe that clause (vi) of subsection (2) of section 13 of the Ordinance also does not impose any restrictions or limitations as to that 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 subsection (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. From the aforestated authorities the consensus seems to be that while reconstructing a new building it is not necessary for the landlord to keep in view the needs of the tenant. But as observed in Ghulam Haider's and Zoab's case in view of section 13(5‑B) the new building should be capable of accommodating the tenants. If the nature and purpose of building is completely changed the tenant cannot object to it. But if its nature is not changed the tenants should be accommodated fairly and justly. In the present case the respondent has established that the premises is not in good condition, he has obtained sanction from the relevant authorities for reconstruction of the premises and has sufficient fund to construct the building. In these circumstances the requirement of the respondents seem to be bona fide and reasonable and merely because they are constructing the building with a gate from which heavy trucks cannot pass, it does not mean that their claim lacks bona fide. The question that the respondent has not established the fund available at his command is not of much importance as it was held in PLD 1979 Lah. 799 that it is not necessary to prove that funds are available. It has been argued on behalf of the appellant that the sanction for the building plan has been suspended by the Building Control Authority and, therefore, there is no valid plan according to which the construction can be raised. This argument is based on the fact that during the pendency of the proceeding the Building Control Authority by Notification dated 7‑4‑1981 suspended the building plan and construction was to start only on the conditions mentioned therein. This question came up for consideration before me in a case of Messrs Pak Army Furnishing Stores v . Ali Akbar Rizvi and 3 others P L D 1985 Kar. 201 where it was held that suspension does not amount to cancellation of the plan and on that basis ejectment application based on ground of reconstruction cannot be dismissed. In these circumstances the ejectment was allowed on following conditions:‑ " .....In the present case as all permissions have been suspended the respondent even after taking over possession cannot demolish the building and start reconstruction either at the disputed place or other part of the building. Therefore, two months time is granted to the appellant to vacate the disputed premises. However, if the no‑objection certificate and approval of building plan is not revalidated or suspension is not withdrawn within this period of two months, the appellant shall not be ejected till such time the respondent obtains a valid building plan from the authority. In an event after ejectment the appellant shall be entitled to the rights and protections provided to a tenant under section 15(3) and (4) of the Sind Rented Premises Ordinance, 1979." Mr. A.A. Fazeel has clearly stated that in such circumstances if similar order is passed he will have no objection. However, according to Mr. Khalid M. Ishaque the suspension of Notification should have been taken into consideration by the Controller while granting ejectment. Mr. Fazeel contended that once the building plan has been sanctioned its expiry or suspension due to technical reason cannot be a bar for granting ejectment. Reliance has been placed on 1980 S C M R 516, 1981 S C 80, 1980 S C M R 483 and 1980 C L C

915. I agree with the contention of the learned counsel, as the grant of sanction for the building plan does not give a cause of action as held in 1980 S C M R

516. In the facts and circumstances of the case due to suspension of the building plan the relief of ejectment cannot be refused. The next question arises whether the appellant is entitled to the benefit of section 13(5‑B). According to Mr. A.A. Fazeel this case is to be governed by Sind Rented Premises Ordinance' 1979 in which Ordinance till the final decision of ejectment there was no provision like subsection (5‑B) and such provision was added in the year 1984. I do not agree with the contention of the learned counsel because the case was filed under the repealed Sind Urban Rent Restriction Ordinance, 1959 and the rights conferred on the appellant at the time of filing the ejectment case will be available to him. Reference can be made to 1981 S C M R

782. It may further be added that in view of Hasan Ali v . Fancy Foundation P L D 1975 S C 1, the right to file an application for reoccupation in the new building will arise only when the building has been constructed. Therefore, section 15(4) of Sind Rented Premises Ordinance, 1979 will also be applicable when the building is reconstructed and the tenant makes an application for reoccupation. In this regard the observation of the learned Controller that the appellant is not entitled to the benefit of section 13(5‑B) is unwarranted and not correct. The appeal partly succeeds to the extent that the appellant is entitled to make an application for reinstatement in the new building. In the present case, as building plan has been suspended, the respondent even after taking over possession cannot demolish the building and start reconstruction either at the disputed place or other part of the building. Therefore, two months time is granted to the appellant to vacate the disputed premises. However, if the approval of building plan is not revalidated or suspension is not withdrawn within this period of two months, the appellant shall not be ejected till such 'time the respondent obtains a valid building plan from the relevant Authority, or suspension is withdrawn. In any event after ejectment the appellant shall be entitled to the rights and protections provided to a tenant under law for reinstatement in the newly‑constructed building. The appeal is partly allowed. A.A. Appeal Partly allowed