P L D 1969 Karachi 306 (PLP)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(3)(6), second proviso‑Proviso to be read subject to principal provisions contained in S. 13(3)(a), (b)‑Question of bona fide personal requirement got to be satisfied before tenant's ownership of residential building in same area is determined. Notwithstanding its seemingly independent and repugnant character the 2nd proviso to section 13(3)(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 has nonetheless to be read subject to the principal provisions contained in section 13(3)(a) and (b) and as such the question of a bona fide personal requirement has got to be satisfied as an essential pre requisite, before the question of the tenant's ownership of a residential building in the same urban area is determined. Such an interpretation would not only harmonise the two inconsistent provisions but would also be in consonance with the object of the Rent Restriction Ordinance. East & West Steamship Co. v. Pakistan P L D 1958 S C_ (Pak.) 41 fol. (b) Interpretation of statutes ‑Proviso‑To be read as being subordinate to main provisions notwithstanding fact that it may contain independent and .substantial provisions. Maxwell's Interpretation of Statutes, 11th Edn , p. 154 and Craies on Statute Law ref. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(3) (b), second ,'proviso ‑ Person owning even an unauthorised construction could be deemed to be owner of a residential building in same urban area in terms of provisions contained in second proviso to S. 13(3)(6).[Obiter]. This tenant's second appeal is directed against the order of the Additional District Judge, Karachi dated 29‑9‑67 whereby accepting the respondent‑landlord's appeal against the order of the Rent Controller he directed the eviction of the appellant under the 2nd proviso to section 13(3)(6) of the Rent Restriction Ordinance. The brief facts giving rise to the case are that on 2‑12‑1966 the respondent‑landlord filed an application against the appellant seeking his ejectment on the three‑fold ground of default in payment of rent, bona fide personal requirement and impairing of the value and utility of the building. During the pendency of this application on 2‑2‑1967 the respondent landlord filed yet another application invoking the 2nd proviso to clause (b) of subsection (3) of section 13 of the Urban Rent Restriction Ordinance which reads as follows :‑ "Provided further that if the application is in respect or a residential building the Controller shall direct the tenant within four weeks of the application, to put the landlord in possession of the building it; after a summary inquiry, he is satisfied that the tenant, his wife or any of his dependent children owns a residential building within the same urban area or owned such a building within sixty days preceding the commencement of the West Pakistan Urban Rent Restriction (Amendment) Act, 1963."

2. From the evidence adduced by the parties before the learned Rent Controller it stood clearly established that a residential building No. A/viii‑26‑S‑9 in Agra Taj Colony Karachi was constructed by the appellant and that the Karachi ;Municipal Committee had adopted two resolutions in regard to the regularization of all unauthorized constructions in Agra Taj Colony, Karachi to which category the aforesaid residential building also belonged. Nonetheless, however, the learned Rent Controller came to the conclusion that it still remained an unauthorized construction and the mere existence of resolutions for regularization of such constructions could not be equated with the ownership of a residential building so as to satisfy the legal requirement contained in the second proviso to section 13(3)(6) of the Ordinance. Consequently the application was rejected. On appeal, however, the learned Additional District Judge reversed the finding on this issue and took the view that the ownership of a residential building as defined in the Rent Restriction Ordinance did not essentially presume the ownership of the land on which construction was raised. It was held that to the circumstances explained earlier, the appellant could be deemed to be an owner of a residential building within the same urban area in terms of the provisions contained in the 2nd proviso to section 13(3)(6). In this view of the matter the appeal was accepted giving rise to the present S. A. O.

3. It is contended before me by the learned counsel for the appellant that the normal function of a proviso is to except and detract something from the main provision and not to demolish it altogether and as such the second proviso to section 13(3)(6) cannot be deemed to enact an independent provision repugnant to the one contained in section 13(3)(a) and (b). It is argued that if the provision contained in this proviso were deemed to be an independent provision such a construction would have the effect of frustrating the very object of the Rent Restriction Ordinance namely to safeguard the legitimate interests of tenants against arbitrary evictions.

4. As against this relying on Maxwell's Interpretation of Statutes, 11th Edition, page 154, it is contended by the learned counsel for the respondent that where the proviso is so inconsis tent with or repugnant to the earlier provision that the two cannot stand together. The earlier provision should be deemed to have been repelled on the principle of repeal by implication.

5. It is next contended that on the question of ownership of a residential building the view taken by the learned Additional District Judge was perfectly correct and sound and as such all the legal requirements of the second proviso to section 13(3)(6) having been fully satisfied, the impugned judgment is unexceptionable.

6. The case involves the determination of a legal question of some nicety. In fact the decision of the case would hinge on a finding on two legal questions firstly whether the proviso in question should be deemed to have enacted an independent and substantial provision or whether in the alternative it should be read as being subject to the Main provision contained in section 13(3)(a) and (b) of the Act, or to put it differently whether before giving a finding on the second application filed by the respondent under the proviso to section 13(3)(6) it was necessary to have given a positive finding on the question of the bona fide personal requirement of the respondent. The second question which falls for determination however is whether in the circum stances explained above the structure owned by the appellant amounts to be ownership of a residential building in terms of the second proviso.

7. Apparently it would seem as if the provision contained in the second proviso amounts to an independent and substantial provision, contrary of course to the not mat function of a proviso which is added to the main provision so as to create an exception to it. There appear to be three reasons which indicate the existence of a parallel and independent provision. Firstly unlike the main provision not only the application has to be disposed of within four weeks of filing the same but in the event of a finding in the affirmative the landlord has also to be put in possession of the building within this period. On the contrary no such statutory time‑limit has been imposed on the disposal of the main application. Secondly, there has been a departure from the normal procedure in this case which has been substituted by a summary procedure. The third pointer to the same direction is the relevancy of the ownership of a residential building by the wife or any of the dependent children of the tenant in addition to his personal ownership. If, however, on the above considera tions the proviso may be deemed to have enacted a substantive provision such an interpretation would obviously be in conflict with the object of this piece of legislation namely, the protection of the tenants against arbitrary evictions. In fact on this view of the matter a tenant would be liable to eviction if it is established today that in the month of January 1963, he, his wife, or any of the dependent had owned a residential building, as clearly provided in the latter portion of the proviso, the precise expression used being, "owned such a building within sixty days preceding the commencement of the West Pakistan Urban Rent Restriction (Amendment) Act, 1963". It may be observed that the amendment whereby this second proviso was added came into force on 18‑4‑1963. Having considered all the pros and cons of the matter, I am inclined to think that notwithstanding its seemingly independent and repugnant character of the proviso has nonetheless to .be read subject to the principal provision contained in section 13(3)(a) and (b) and as such the question of a bona fide personal requirement has got to be satisfied as an essential pre‑requisite, before the question of the tenant's ownership of residential building in the same ' urban area is determined. Such an interpretation in my view would not only harmonise the two inconsistent provisions but would also be in consonance with the object of the Rent Restric tion Ordinance. The position is not devoid of authorities either. Both in Maxwell's Interpretation of Statutes as also in Craies on Statute Law the following observation from Kent's Commentaries has been quoted with approval :‑ "The true principle undoubtedly is, that the sound interpreta tion and meaning of the Statute on a view of the enacting clause, saving clause, and proviso, taken and construed together, are to prevail. If the principal object of the Act can be accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy." This view also found favour with our own Supreme Court in East & West Steamship Company v. Pakistan (P L D 1958 S C (Pak) 41). Applying the same principle to the facts of the instant case, I am of the view that notwithstanding the apparent independence of the provision contained in the second proviso it has nonetheless to be read as being subordinate to the main provisions for reason stated earlier.

8. Admittedly in this case no finding on the question o the personal requirement of the landlord in good faith has been given by the Courts below and as such even if it is assumed that in the circumstances of the case the unauthorised structure raised by the appellant on a plot belonging to the K. M. C. with a prospect of regularization of possession can be treated as being C equivalent to his ownership of a residential building in terms of the relevant legal provisions, no order of ejectment could be made against him. Although prima facie I am inclined to agree with the view taken by the Additional District Judge in this regard, yet this may not be deemed to be a conclusive finding which even otherwise is not necessary for the disposal of the appeal in view of the preceding discussion.

9. The upshot of the discussion, therefore, is that the appeal must succeed. Accordingly, I set aside the order of the learned Additional District Judge and remand the case to the learned Rent Controller with a direction that he should proceed with the main application. There shall be no order as to costs. A. E./K. B. A. Appeal accepted.