1986 PLP 2121 (CLC)

Mr. Haider Raza Naqvi has contended that the disputed premises is a commercial premises, but as the approved plan is for constructing a residential premises, ejectment application is liable to be dismissed. In support of his contention the learned counsel has relied upon a judgment in F.R.A. 716/80 which relates to a shop in the building`in which the disputed godown is situated. The relevant portion of the judgment is reproduced as follows:‑ "In my view the ejectment application of the respondents was liable to be dismissed as instead of getting plan approved for a commercial building or at least obtaining approval of a plan which had provision for construction of shop also, the respondent got a plan approved for construction of a residential building. First Rent Appeal No. 716/80, is therefore, allowed, the impugned order, dated 3‑8‑1980 is set aside and the ejectment application filed by the respondents is dismissed. The learned counsel for the appellant has entirely relied on this judgment and did not raise any other plea. At this stage it is pertinent to point out that when this matter came up for hearing, statement of Asghar Ali one of the respondents was recorded on 6‑5‑1985 in which he stated that the entire building will be constructed for residential purpose according to the approved plan. He also stated that on the ground floor he will construct residential premises. However, in F.R.A. 716/80 filed by another tenant referred above, after taking instructions from the respondents their Advocate had made statement that after demolition of the existing building it will be used for commercial purpose and will be rented out as commercial premises. In cross‑examination his attention was invited to this statement of the respondents counsel and he stated that he had not given instructions to the Advocate, but his son was in contact with him. He did not deny the suggestion that no such instruction was given to the Advocate. Therefore, it seems that the statement made by the learned counsel for the respondent in F.R.A 716/80 was made on the instructions of the son of the respondent why had been duly authorised to be in contact with the advocate surely for the purpose of giving him instructions whenever necessary. Now the question for consideration is, whether in such circumstances the ejectment application should be dismissed. Mr. Badrudduja the learned co,insel for the respondents has contended that as law does not impose a bar on the change of user merely because the respondent has got plan approved for construction of residential building in place of commercial premises the ejectment application cannot be dismissed. The learned counsel for the respondent has referred to Abdul Hadi and 2 others v. Ali Hyder and others (PLD 1983 SC 342) where it was observed:‑ "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 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." This is a complete answer to the plea raised by the learned counsel for the appellant. The learned counsel for the respondent has contended that as the premises is being constructed for residential purpose, the appellant will not be entitled to the benefit of section 15(4) and in any case, his entitlement should be decided by the Controller at the relevant time i.e. before the completion of the new building and its occupation by any other person. In this regard it would be pertinent to refer to section 15(3) and (4) of Sind Rented Premises Ordinance, 1979 which reads as follow: ‑ (3) Where the landlord who has obtained the possession of the premises for the purpose of reconstruction of the building or erection of a new building, shall demolish the existing building within six months of the taking over of the possession of the premises, and in case the landlord fails to demolish the building as aforesaid, the tenant shall be entitled to be put into possession of the premises and for the purpose he may apply to the Controller for an order in that behalf. (4) Where the landlord constructs the building as aforesaid the tenant who was evicted from the old building may before the completion of 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 Control ler shall make an order accordingly in respect of the area applied for or such smaller 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." The provisions of the Sind Rented Premises Ordinance. 1979 intend to regulate the relationship between the landlord and tenant and to protect their interest in respect of the rented premises within the urban area. With this object the grounds for ejectment have been specified under section 15 and no person can be ejected except as provided by this Ordinance. In order to safeguard the rights of the tenants section 15(3) imposes a condition on the landlord who has obtained the possession of the premises for the purpose of reconstruction or erection of new building to demolish the existing building within six months from taking over the possession of the premises and commence the erection within 2 years of taking over the premises. If the landlord fails to demolish the building within the prescribed period a right is given to the tenant to be inducted in possession of the premises. Therefore, if the landlord after obtaining possession does not comply with the condition laid down by section 15(3) on application being made by the aggrieved tenant, order for restitution of possession can be made. A further right is given to the tenant who has been evicted, to apply for possession of such area in the new building not exceeding the area which was in his occupation. It may be mentioned here section 13(5) and (5‑B) of West Pakistan Urban Rent Restriction Ordinance, 1959 provided the same protection in the same terms as is presently provided under section 15(3) and (4) of Sind Rented Premises Ordinance, 1979, quoted above. However, subsection (4) of section 15 was for the first time added by Sind Rented Premises Ordinance (Amendment) Ordinance, 1984 gazetted on 30th July, 1984. In this context it may also be mentioned that section 15‑A was also substituted by introducing penal provision for use of the premises other than the personal use for which the ejectment has been obtained. The purpose of mentioning these provisions is to show that the legislature has taken care from time to time to protect the interest of the tenants who are ejected on the ground of reconstruction of building or personal bona fide requirement of the landlord. The protection afforded to the tenant in case where the existing building is to be demolished and a new building is to be reconstructed is that the tenant can apply to the Controller for the possession of such area in the new building which does not exceed the area of the old building of which he was in occupation. On such application being made the Controller can make order taking into consideration the location and type of new building and the need of the tenant. This provision as well as the earlier provision in the West Pakistan Urban Rent Restriction Ordinance, do not specifically impose a bar that if a commercial building is demolished and residential building is constructed or vice versa then, the tenants who were occupying the premises and have been evicted will be debarred from filing application for obtaining possession for the same, similar or lesser area. It is also pertinent that the legislature has used the word "area" and not the word "shop", "room", "premises", or "house". Therefore, by using the word "area" the nature of the premises has not been classified or restricted. The tenant can apply for an area but it is within the discretion of the Controller to decide what area should be given to him, and this discretion will be exercised by taking into consideration the location, the type and nature of the new building and the need of the tenant. It, therefore, cannot be ruled 6t that a tenant who has been evicted from a commercial building cannot apply for an area in a newly‑erected residential building and vice versa. It is possible that he may be needing the premises for his own residence. Therefore, how can he be shut out from making a claim. The object of the legislature is to protect the interest of tenants and not to deprive them of their rights which they are entitled under the law. It is pertinent to note that before granting relief under section 15(4) the Controller has to take into consideration the location and type of the building and the need of the tenant. By providing these considerations the legislature seems to be mindful of the fact that the nature and use of the building may be different from the old building, It is thus clear that even in such changed condition the needs of the' tenant has also to be taken into consideration. If the need of the tenant is such that it can reasonably be accommodated and satisfied in the new building, the tenants claim cannot be ruled out of consideration. The case of a tenant evicted on ground of reconstruction is completely different from the one who has been evicted on the ground of personal bona fide use and occupation or on the ground of default, or on the grounds of causing damage and impairing the utility of the premises and similar other grounds. In the case of reconstruction, the landlord always reconstructs the building for the purpose of improving it. If in the ejectment application he has pleaded and succeeded in establishing that he will not rent out the premises and will use it for his person al use then the tenant may not be entitled to the benefit of re‑occupying the same area but once the object of the landlord is to reconstruct and rent out the premises, the tenant would have a right of applying to the Controller for similar, same or reduced area in the newly‑constructed premises which he had been occupying in the old building. To deprive the tenants of the benefits of section 15(4) on the ground' of changed nature and user of the new building is likely to create great hardship and will open floodgate of serious malpractices. In the present case this building is situated in a predominantly commercial area. I have examined the approved plan of the respondent and strikingly the ground floor plan has been made in such a way that it can conveniently be used for commercial purpose without disturbing the plan in the least. This clearly supports the statement of the learned counsel for the respondent in F.R.A. 716!80 and I am convinced that the ground floor of the new building will be let out for commercial purpose. This ground floor of the new building will hardly change its character. Mr. Badrudduja has referred to PLD 1983 SC 342 where the provision of section 13(2)(vi) and (5‑B) of the West Pakistan Urban Rent Restriction Ordinance 1959 were under consideration and it was held as follows:‑ "The reading of both the provisions in harmony would yield the result that sub‑section (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 these 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. " The learned counsel relying on this authority contended that the appellant is not entitled to the benefits of section 15(4) as the plan has been passed for a residential building. The rule laid down by the Supreme Court is binding on all the Courts. As I have come to conclusion that the ground floor of the newly‑constructed building will be used for commercial purpose, on the principles laid down in Hadi Ali's case, in my view. the appellant will be entitled to the benefits of section 15(4). Mr. Badrudduja the learned counsel for respondent contended that the appellant is not entitled to the benefits of section 15(4) because this provision was added by amendment in the year 1984, and it was not in existence when the ejectment application was filed, or the impugned order was passed. According to the learned counsel, the provision is not with retrospective effect. Section 15(4) confers a right on such a tenant who was evicted from the old building, to apply to the Controller seeking direction that he be put in possession of an area as provided by law. This right has been conferred on all such tenants who have been evicted from the old building on ground of reconstruction irrespective of the fact whether such eviction was ordered before the addition of section 15(4) or after it. One of the conditions for entitlement of tenant for applying for an area in the new premises is that he was evicted from the old building. The words "the tenant who was evicted from the old building" make section 15(4) applicable to such tenant who was evicted even before the addition of provision in the Sind Rented Premises Ordinance. The appeal is dismissed with the observation that the appellant will be entitled to invoke the provisions of section 15(4) in the manner provided by it Mr. Badrudduja states that one of the shops in the building occupied by a tenant is subject‑matter of Supreme Court Appeal No.K‑8/ 84 and till such time it is disposed of, the respondent cannot demolish or erect a new building. In the circumstances, I direct that the respondent shall vacate and hand over vacant possession of the disputed premises to the appellant within one month from the date of the disposal of Appeal No.K‑8/84 by the Supreme Court. H. B. T. Order accordingly.