1984 PLP 1083 (CLC)

(1) Whether the applicants require reasonably and in good faith the shops in question for demolition and reconstruction. (2) Relief. The parties led evidence and after analysing the evidence the Rent Controller decided the Issue No. 1 in favour of the respondent/landlord and consequently directed the tenants/appellants to put the landlord in possession of the shop and for which two months time was given. The reasons which weighed with the learned Controller for reaching his conclusion may be reproduced in his own words :

The perusal of the revised plan for reconstruction of the shops reveals that it is approved only for addition and alteration. The proposed alteration as made in the map shows that the applicants intend the demolition of the intermediary wall of Shop No. 4-5/8 and Shop No. 4-5/7 and intend to use the place as drawing room. The rooms of the house in occupation of the applicants are only two. In my view that the applicants feeling conges tion have proposed this alteration in their accommodation otherwise the condition of the shop in question is not in dispute, It is not necessary that the landlord requires the premises only in case it is in dilapidated condition and he is free to use his accom modation according to his requirement. The Rent Restriction Ordinance does not impose such condition for reconstruction purpose. It is only the sanction from the proper authority. In view of my above observations, assessments and the evidence I decide the issue in affirmative."

5. On behalf of the appellants Mr. Sakhi Sultan, Advocate has advanced the arguments and Mr. Aziz Ahmad has only adopted them while Mr. Azizullah Memon has put the case of the landlords. The following grounds have been canvassed on behalf of the appellants :

(a) That though the landlords has said in the eviction application that they want to demolish and reconstruct it but in his examina tion in Court Major Muhammad Naseem one of the landlords for the first time took a different stand that he wanted to con vert it into residential house. This stand was not pleaded in the application. The trial Court has thus made out a case for the landlords beyond the pleading. (b) That there being no power-of-attorney in favour of late Muhammad Naseem by the other landlords his statement has thus no evidentiary value. (c) That the plan produced and relied upon by the landlords is only for removal of the wall existing between the two shops which does not amount to demolition of the building and reconstruction and this is not a permissible ground for eviction. (d) That there is no evidence on record to support the bona fide requirement of the landlords and the landlords do not reason ably and in good faith require the premises for their personal use i.e the residence. (e) That the shops in occupation of the appellants/tenants were let out for purpose of business and trade and are located on main road in commercial area. The eviction application for using the premises for residential purpose is not maintainable in law. (f ) That in view of the provisions contained in clause (5-A) of sub section (3) of section 13 of the Urban Rent Restriction Ordi nance, 1959, the tenants are entitled to a lease of the demised premises after reconstruction, which right of the tenants/appel lants has been denied by the Rent Controller. Thus, the impugned order offends the provision of law and is illegal.

6. The application as constituted and the evidence (if it can be so said) appear to be a combination of two grounds. One is a ground of reconstruction and another is the ground for personal use for residence. Section 13(3) allows a landlord to apply to the Rent Controller for an order directing the tenant to put the landlord in possession :

(i) In the case of residential building, if he requires it in good faith for his own occupation or for the occupation of any of his children and if he is not occupying another residential building suitable for his needs at the time in the same urban area in which such building is situated, and (ii) In the case of non-residential building, if he requires in good faith for his own use and for his male children and he or his child is not occupying in same urban area any such building or rented land suitable for the purpose of his business. It is, therefore, clear from these provisions that the landlord can acquire non-residential building, if he requires it for his own use or for the use for his male children and he or his child are not occupying any non residential building for the purpose of his business which may be said to be for his needs. The expression residential building and non-residential building are defined in section 2 clauses (d) and (g). A non-residential building means a building being used for the purpose of business or trade. A residential building on the other hand means a building which is not a non residential building.

7. Before examining the respective contentions of the learned counsel for the parties it is necessary to examine the evidence of the land lords. On behalf of the landlords one Muhammad Naseem Qadri Municipal Engineer of the Quetta Municipality has been examined who has deposed that the building map was approved and the building permit in persuance thereof was issued to the respondents/landlords. The map produced in Court is only for the removal of existing wall between the two shops, Major Muhammad Naseem who was one of the applicant (landlords) was examined on 3rd June, 1979. The examination-in-chief of Major Muhammad Naseem which states the case of the landlords is reproduced :

Major Muhammad Naseem died on 24th April, 1980 and thereafter his legal representatives, respondents 4 to 10 were brought on record, On the objection raised on behalf of the present appellants/tenants that no power of attorney in favour of Major Muhammad Naseem was on record the learned Controller on 31st August, 1981 ordered the landlords to file the same but no such power in favour of late Major Naseem was filed. An order to that effect was passed on 21st November, 1980 which reads as follows:- Again on 23rd December, 1981 the order was recorded which reads; Neither the remaining landlords appeared in the witness-box nor any witness on their behalf. Thus, the evidence of the landlords consists only of the statement of Muhammad Naseem Qadri the Municipal Engineer and late Major Naseem. As would appear from the statement of Major Muhammad Naseem he was at that time residing at Khuda-i- Dad Road and had not expressed any desire to shift from that place and to come to the house at Abdul Sattar Road. The legal heirs of the deceased landlord also did not express any such desire. None of the remaining landlords similarly said anything about their requirement. It may be mentioned that two of the landlords namely Ferooz Begum and Rahana are ladies and while Muhammad Azeem is one of the sons of late Sheikh Siraj Din, the predecessor-in-interest of the present landlords. Muhammad Azeem too did not express any desire to any business or trade in the shops in question. It is also not on record if he is even married and has any family of his own and for whose residential require ment the property in question was being claimed and for which purpose the shops in occupation of the tenants/appellants were proposed to be amalgamated by removing the wall between. There is thus no evidence on record at all which may by any stretch of imagination justify the observation of the learned Controller that the landlords by demolishing the shops intend to use the place as a Drawing Room or that the appli cants feeling congestion have proposed this alteration in their accom modation. It can be safely said that it was not proper on the part of the Controller to assume the role of a gratuitous adviser and the finding can not be supported on the evidence on record and practically there is no evidence on record on which the landlords can reasonably base their bona fide requirement and in the absence of material on record there was no justification in the finding or belief that the requirement was based on good reason and was made in good faith. The finding of the learned Rent Controller is, therefore, based on conjectural hypothesis and is no finding at all in eyes of law.

8. It is not the desire of the landlord to rebuild but his bona fide need for reconstruction that is the determining factor, the Judge of which has to be the Court. The term reasonable possesses an objective element. Reconstruction or re-erection imply and contemplate the replacement by demolition of the old premises and erection of a building in its place. It has been held in 1972 S C M R 437 that the question whether or not the premises is needed by the landlords for bona fide requirement is purely of question of fact, although the intention behind the move is purely subjective, which can only be inferred from the circumstances, which must be alleged and proved by the landlord by producing evidence in manifestation of that intention. From the judgment of the Supreme Court in Abdullah Baluch's case (PLD1961SC28), it can be safely inferred as a proposi tion of law that where the landlord linked up the requirement and recons truction of the premises with his own personal requirement i.e. resi dence and such requirement was found to be neither reasonable nor made in good faith. It must re-act upon the allegation of reasonable and bona fide requirement for reconstruction. The mere reconstruction, would not be a valid ground for ejectment.

9. From the provision of subsection (3) of section 13 as quoted above there can be no two opinion that under the Act it is permissible for the landlord to seek the ejectment of the tenant if the need of the land lord is of the same category to which particular accommodation belongs. Therefore, the landlord cannot obtain eviction of his tenant from a non-residential building, unless be wants it for the purpose of his business. The shops rented out to the appellants are being used exclusively for non-residential purpose, it is covered by the definition of non-residential building and cannot be directed to be vacated for the use by the landlord for residential purpose. This view finds support from a judgment of Karachi Bench in Jamil Ahmad v. Sultana Jehan Begum (PLD1974Kar.319) where it has been pointed out by Agha Ali Hyder, J. (as his Lordship then was) that notwithstanding good faith a non-residential building cannot be directed to be given in possession of the landlord, for residential purpose of his own. The same view was taken by Lahore High Court in Muhammad Bashir v. Sultan Mahmood Khan (P L D 1975 Lah. 254). Both these judgments were referred with approval by my learned brother Mr. Justice Abdul Qadir J. in an unreported judgment F. A. O. 32 of 1983 (Abdul Hannan v. Muhammad Ramzan) decided on 15th October, 1983. To the same strain is the judgment of Karachi Bench in Sabir Hassan v. Munir Mathu (P L D 1983 Kar. 414).

10. Mr. Memon the learned counsel for the landlords/respondents has made an attempt to meet out these objections by placing reliance on Abdul Bari's case (P L D 1978 S C 78). In this case their Lordships were considering question whether plea of reasonable and bona fide requirement for reconstruction of building and its requirement for personal use of landlord embodied in different subsections of section 13 are mutually destructive of each other but have in unequivocal terms observed at page 84; We consider, therefore, that the ground of reconstruction mentioned in clause (vi) of subsection (2) 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 sub section (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."

11. The contention/reply of Mr. Memon thus loses sight of the provision of subsection (5-B) of section 13 of the Ordinance, 1959 which was introduced later and reads :

"(5-B) Where, in pursuance of an order under clause (vi) of subsec tion (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 smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just, and on pay ment of rent to be determined by him on the basis of rent of similar accommodation in the locality."

12. As rightly pointed out by Mr. Sakhi Sultan the learned counsel of the appellants that even if it is assumed that the application for ejectment on ground reconstruction makes oat a bona fide requirement it is not binding on the Court since it has been arrived at without taking into consideration the provisions of subsection (5-B) of section 13 and subsection (3)(2) of section 13 of Ordinance. One of the conditions for requirement is that it should be required reasonably and in good faith. This provision is to be read in the light of the rights conferred by sub section (5-B) of section

13. That subsection provides that where, in pursuance of an order. under clause (vi) of subsection (2) a landlord had obtained possession of a building and constructs any 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 old building for which he was in occupation and the Controller shall make an order accordingly. Under subsection (5-B) it is mandatory for the Rent Con troller to pass an order of delivery of possession according to formula laid down therein. It is an impossibility to comply with this subsec tion in the present case because the object of the landlord is to totally oust the tenant from the property. Reference to subsection (5-B) becomes relevant for the purpose of interpreting the provision of subsection (2)(vi) of section 13 which provides that the ejectment can only be for bona fide reconstruction. In my humble opinion a reconstruction the object of which is to override provision of subsection (5-B) cannot be deemed to be bona fide. This view also finds support from a judgment of Lahore High Court reported in P L D 1976 Lah. 1095. The Supreme Court in Zhob and others v. Akbar Ali (1983 S C M R 391) also recognised the right of the tenants as con tained in section 13(5-B) of the Ordinance. 1959, and reiterated its earlier view in Ghulam Haider's case (1979 S C M R 396). From these authoritative pronouncements of the Supreme Court and the plain words used in sub section (5-B) of section 13 of the Ordinance there is no doubt left in my mind that the provision of clause (5-B) is not without any purpose I accordingly hold that the eviction applications are not maintainable. For the above reasons there is no alternative but to allow these appeals and set aside the order of the Rent Controller, dated 30th June, 1982 and dismiss the eviction applications. I would order accordingly. The parties are however left to bear their own costs. M. Y. H. Appeal allowed.