P L D 198 Karachi 393 (PLP)

(h) procedure for cancellations of transfer or sale ; (i) the details of the building or plot require to be mentioned in the advertisement for its sale by the builder or developer ; as the case may be. (j) rates of fees for supplying copies of any documents or informa tion ; (k) terms and conditions of compounding offences ; (l) rates of interest payable under this Ordinance. '

3. The Karachi Building and Town Planning Regulations, 1979, in the case of the authority of Karachi and the bye‑laws of the council concerned in other cases duly published shall until the regulations 't are framed under this section be deemed to be the regulations, not framed; provided that they are not inconsistent with the provisions of this Ordinance and rules framed thereunder.

10. As examination of the impugned regulations shows that the regulations, as suggested by their language, make it incumbent upon the landlord to arrive at agreement with his tenant either in respect of alternate accommodation or mutually agreed compensation before approval in respect B of building plan or reconstruction of building can be accorded by the respon dent No.

1. The regulations also treat any permission if earlier granted by the respondent No. 1, suspended with immediate effect, where no such agreement, as above said, has been executed.

11. A similar examination of the provisions of the Buildings Control Ordinance also shows that the Ordinance, has been designed to provide for planning, construction, control and demolition of buildings and disposal of buildings and plots in the province of Sind. Section 4 of the Ordinance provides for appointment by notification of any body corporate or council, or any Government department or functionary or any organisation to act as authority under the said Ordinance to carry out the purpose of such legislation. Mention may also be made again of section 21‑A which empowers the respondent No.1 to make regulations for the purpose of giving effect to the provisions of the Ordinance.

12. Now, turning to Mr. Sadiq's argument once again, subsection (I of section 21‑A of the Buildings Control Ordinance, empowers the authority under the said Ordinance to frame regulations, not inconsistent with the provisions of the said Ordinance anti the rules made thereunder to cam out the purpose of the said Ordinance. Subsection (2) of section 21‑A then refers to the plenary power enjoyed by such authority, which however, is subject to the restrictions imposed by the said subsection as indicated above. Therefore, according to the above provisions, although such regulations can relate to any of the matters specified in subsection (2) of section 21‑A but they cannot relate to matters which are alien to the purpose of the said Ordinance or are inconsistent with its provisions and such intention of the Legislature can clearly be spelt out from the language used in section 21‑A of the Buildings Control Ordinance. The learned counsel for the respondents have although very frankly conceded that the impugned regulations have the effect of regulating relationship between the landlord and the tenant, but, have at the same time contended that the provisions of the Buildings Control ,Ordinance and the Rented Premises Ordinance are inter‑related. Reference in this respect has been made to section 14 of the former and section 12 of the latter Ordinance. However, section 12 of the Rented Premises Ordinance or section 14 of the Buildings Control Ordi nance nowhere can be found inter‑related. Although the provisions of the two Ordinances referred to by the counsel show that a tenant in occupation of a rented building may under the said provisions be authorised to carry out repairs to such building but the subject‑matter of the two provisions is entirely different.

13. The learned counsel for the respondents have however, sought support from the case reported as 'Messrs Pak Army Furnishing Store v. Sj ed Ali Akber Rizvi and 3 others (P L D 1985 Kar. 201). In this case, which was a first Rent Appeal the vires of these very regulations was challenged before the learned Single Judge of this Court, and the observations made in the said judgment at pages 210 and 211 of the report are reproduced as follows :‑ "Mr. Sadiq, the learned counsel for the respondent contended that the plan has been suspended under an administrative instruction, and that the regulations framed by the Authority cannot be made applic able to the respondent's case, firstly because the Sind Building Control Ordinance, 1979 hereinafter referred as Sind Building Control Ordinance does not govern the relationship of landlord and tenant, and secondly, the regulation relied upon by the appellant is not with retrospective effect. The Regulation has been framed by the Sind Building Control Authority under the powers conferred by section 21‑A of the S. B. C. Ordinance, 1979 as amended in 1982. It empowers the Authority to frame Regulations not inconsistent with the provisions or the Ordinance for carrying out the purposes of the regulations, Regulations may be framed inter alia for the manner of approval and grant of no objection certificate to builders or developers The authority has been expowered to grant approval of building plans and no objection certificate for construction. Grant of such certificate and approval to be regulated by Rules and Regula tions which are framed for effective enforcement of the S. B. C. Ordinance. The authority can therefore, impose conditions while granting permission for demolition of the building:, and erection of a new building. It cannot overlook the rights of the tenants who occupy the premises and have valuable interest in it. The tenancy right is a valuable right and unless otherwise provided by law it cannot be lost merely because the landlord wants to demolish the building and erect a new building. Therefore, if for re‑erection of a new building the Authority imposes reasonable conditions which are not in conflict with the Sind Building Control Ordinance the same would be valid and proper. Conscious of the jurisdiction under which I am dealing with the matter, I would refrain from commenting whether the Regulation is ultra vices or invalid. Suffice to say that for the purpose of limited investigation which can be made in this appeal, the Regulation is not patently void or illegal."

14. As appears from the judgment in this case, conscious of his jurisdictional limits. the learned Single Judge has observed that the Sind Buildings Control Authority can impose conditions on the landlord while granting sanction to building plan unless such conditions are found patently in conflict with law or are found to be unauthorised. The learned Judge. it seems has further observed that such authority cannot overlook the rights of the tenants who. occupy the premises and have a valuable interest therein. However, at the conclusion, the learned Judge has refrained from commenting whether the regulations are ultra mires. We may say, with great respect, that no doubt the Buildings Control Authority can, by framing regulations, impose conditions on the landlord in respect of grant of sanction fore approval or renewal of a building plan, but if any conditions are imposed which are outside the scope of or which transgress the limits circumscribed by the statute then such conditions would be ultra wires. Among the cases cited by Mr. S. M. Sadiq, the first was that of Haji Hashlrat Ullah and 9 others v Karachi Municipal Corporation and 3 others (P L D 1971 Kar. 514) In this case, while examining the wires of the West Pakistan Municipal Committee Property Rules, 1962 this Court has held as follows :‑ "Rule (8) confers powers upon the Chairman for the disposal of property but he has to seek previous sanction from the Commissioner in case otherwise than covered by clauses (a) and (b). The power of rejection of the proposal by the Commissioner is derived from section 111 of the Ordinance and, therefore, the condition precedent cannot be avoided. Even. otherwise, the rules are framed under a statute and, therefore, are subordinate to it. Rules cannot override or abridge the provisions of the Statute nor can have wider scope. It is settled position of law that if the rules deviate from Statute and confer excessive powers they are repugnant to the Statute and are void to the extent of repugnancy. Thus it follows that the provisions of Statute must prevail against anything contained in the Rules and therefore, the rules cannot be allowed a determinative effect." The next case, which was decided by the Supreme Court, is reported as Sultan Mawjee and 3 others v. Federation of Pakistan Chamber of Commerce and Industries, Karachi and 3 others (P L D 1982 S C 174). It was observed therein "The Legislature must have conferred the regulatory power, with the intention that it should be determined by construing the Ordinance as a whole used to promote the policy and objects of the Ordinance, which must be determined by construing the Ordinance as a whole. It is needless to emphasise that, in construing a provision of a statute by which such powers are vested, in a statutory, function aries the powers are vested to be exercised in the interest and it cannot be argued that such powers are to be exercised in the discre tion of the donee of such powers, without reference to the context of the policy and objects of the legislation. It is by now well‑established that the Legislature does not confer plenary power of such wide amplitude, as is contended for, as that may fall within the mischief of the doctrine of excessive delegation of legislative power to the Executive branch of the Government, except perhaps in the case of emergency legislation. Such wide statutory descretion, is order to avoid the charge of abuse or excess of authority must not be used, to seek promotion of purposes alien to the letter or spirit of the legislation that gives power to act." Reliance was also placed by Mr. S. M. Sadiq on Province of East Pakistan and another v. Nur Ahmed and another (PLD1964SC451) another case decided by the Supreme Court wherein also similar views were expressed.

15. Accordingly, although every effort should be made to construe a rule, a regulation or a bye‑law as intra vires but still a regulation or a bye‑law may be ultra vires in the sense that it deals with a subject not within the scope of the power conferred upon the delegated legislative authority, or because while dealing with such subject, it exceed the prescribed limits within which the authority may be exercised. The moot question, in the instant case however, is whether the impugned regulations deal with subject falling within the scope of the Buildings Control Ordinance and advance the object of the said Ordinance? No. doubt, it falls within the functions of the respondent No. 1 to impose by regulations, conditions for grant of permission for reconstruction of buildings, but again the question would be, what object they are seeking to achieve and are they dealing with subjects which the said respondent is empowered under the Buildings Control Ordinance to regulate? We are however, of the view that the impugned regulations cannot stand such test as they deal with a subject which is outside the scope of powers conferred upon the respondent No. I since they are in fact purporting to regulate relationship between the landlord and the tenant in the garb of powers conferred upon the respondent No. 1 under the said Ordinance. In such a case, the Court has the duty to decide, whether the delegatee, has acted within its powers. If the exercise of powers exceeds the limits of discretion vesting. in the delegate, then it will be open to challenge.

16. The next argument pressed by Mr. S. M. Sadiq has been that the impugned regulations are ultra vires for the reason of their being unreasonable. This requires examination of the regulations once again, although from a different angle. The argument proceeded on promise that the impugned regulations fail to provide for any mechanism for resolving differences which may arise between the landlord and the tenant, while giving effect to the regulations.

17. The law, relating to reasonableness of a rule, or a bye‑law is now well‑settled. Maxwell on the Interpretation of Statutes, tenth edi tion, at pages 301 and 302 says:‑ "In determining the validity of bye‑laws made by public representative bodies under statutory powers, their consideration is approached from a standpoint different from that adopted towards bye‑laws of railways or other companies, of which carry on business for their own profit, although incidentally for the advantage of the public. Courts of justice are slow to condemn municipal bye‑laws as invalid, on the supposed ground of unreasonableness, and support them if possible by a `benevolent' interpretation, crediting those who have to administer them with an intention to do so in a reasonable manner, and with being the best judges whether a particular bye‑law is required in their district or not. But, on the other hand, if a bye‑law necessa rily involves that which is reasonable, it is the duty of the Court to declare it to be invalid." Reference 'in this. respect may also be made to Craies on Statute law, wherein it has been said:‑ " There are five main grounds on which the bye‑laws may be treated as ultra vires:‑ (a) That they are not made, sanctioned end published in the manner prescribed by tire statute which authorised the making of them. (b) That they are repugnant to the laws of England. (c) That they are repugnant to the statute tinder which they, are made. (d) That they are uncertain. (e) That they are unreasonable." Reliance has also been placed by Mr. S. M. Sadiq on Saleh Muhammad v. Traffic Manager Port Trust Karachi (P L D 1962 (W. P.) Kar. 349 ) wherein, the same principle was enunciated while relying on the above quotations. 18 However, in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Phupesh Kurmarseth, etc., etc. (A I R 1984 S C 1543) the Indian Supreme Court while relying on the English case of Kruse v. Johnson ((1898) 2 Q B 91) laid down the following dictum: "

21. The legal position is now well‑established that even a bye‑law cannot be struck down by the Court on the ground of unreason ableness merely because the Court thinks that it goes further than "is necessary" or that it does not incorporate certain provisions which. in the opinion of the Court, would have been fair and wholesome. The Court cannot say that a bye‑law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court oil the ground of unreasonableness. The responsible representative body entrusted with the power to make bye‑laws must ordinarily be presumed to know that what is necessary, reasonable, just and fair. In this connection we may usefully extract the following quoted observations of Lord Russell of Killowen in Kruse v. Johnson (1898) 2 Q B. 91: (1979) 1 S C R 721 (733): (A I R 1975 S C 1935 at 1942). "When the Court is called upon to consider the bye‑laws of public representative bodies clothed with the ample authority which I have described, accompanied by checks and safeguards which I have mentioned. I think the consideration of such bye‑laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be as has been said, 'benevolently inter preted and credit ought to be given to those who have to administer them that they will be reasonably administered. "The learned Chief Justice said further that there may be Cases in which it would be the duty of the Court to condemn bye‑laws made under such authority as these were made (by a country council) as invalid because unreasonable. But unreasonable in what sense? if, for instance. they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith ; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra Tires. But it is in this and this sense only, as conceive, that the question of reasonableness or unreasonableness can properly be regarded. A dye‑law is not unreasonable merely because particular Judges may think that it goes further than is prudent or necessary or convenient or because it is not accompanied by an exception which come Judges may think ought to be there. We tray also refer with advantage to the well‑known decision of the Privy Council in Sattery . Naylor (1888) 13 A. C. 446, where it has been laid down that when considering whether a bye‑law is reasonable or not, the Court would need a strong case to be made against it and would decline to determine whether it would have been wider or mere prudent to make the bye‑law to be unreasonable because considera tions which the Court would itself have regarded in framing such a bye‑law have been overlooked or rejected by its framers." 19. 'The question is, are these regulations so manifestly, partial or unjust impractical or do they disclose bad faith? While framing the regula tions, intention of the respondent No. 1 clearly seems to be to safeguard the rights and interest of the tenant whom the landlord may seek to eject on the ground of reconstructions of building. Although it is true that the regulations fail to provide for mechanism for arriving at the agreement contemplated by such regulations but would the regulations be unreasonable on that account? It cannot be denied that by failing to provide such mechanism these regulations provide a lever in the hands of the tenant to coerce the landlord to agree to his terms howsoever unreasonable they may be. Although we are sure, that if any mechanism for execution of agreement between the landlord and the tenant or resolution of their disputes has been provided in the regulations the same would have been f more favourable to the tenant. However, if any such mechanism had been provided by these regulations, the position obtaining now might not have been the same. Nevertheless, it cannot be denied that these regulations are restrictive in nature vis‑a‑vis the rights of the landlord and permit the tenant to exercise under influence over the landlord to agree to hi terms and obtain unfair advantage. Moreover, the respondent No. 1 while framing these regulations seems to have completely abdicated its authority in favour of the tenant by making the granting of sanction or approval of building plan purely dependent upon signing of agreement between the landlord and the tenant which otherwise, according to the provisions of the Buildings Control Ordinance, is within the discretionary powers of the respondent No. i. The regulations, therefore, appear to be unfair, impractical and contrary to the general policy of law and are. therefore‑ unreasonable.

20. Lastly. it has been contended by Mr. Sadiq that the impugned regulations have the effect o: repealing by implication the provisions contained in subsection (4) of section 15 of the Sind Rented Premises Ordi nance subsection (4) of section 15 which was added to the said Ordinance, by section 4 of the Sind Rented Premises (Amendment) Ordinance, 1984 promulgated on 30th July, 1984 provides as follows:‑ "Subsection (4). Where the landlord constructs the building as afore said 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 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 payment of rent to be determined by him on the basis of rent of similar accommodation in the locality."

21. It is now well‑settled that when two provisions of statute cannon stand together, the former is repealed by the latter. However, implied) repeal of the provisions of one statute by another cannot be readily inferred unless the two provisions are so inconsistent that effect cannot be given to them at the same time. In order to appreciate the contention of Mr. Sadiq it would be necessary to examine the impugned regulations and subsection (4) of section 15 of the Sind Rented Premises Ordinance together by placing them in juxtaposition.

22. An examination of the impugned regulations and the provisions of subsection (4) shows that while the former are designed to take effect before filing of an ejectment application, the latter apply after such proceedings have borne fruit and the tenant has been ejected. A question therefore, arises. are the two provisions so inconsistent that effect cannot be given to both of them? According to Mr. Sadiq, answer to such question is in the affirmative as in the opinion of the learned counsel. the impugned regulations are opposed to the general law of landlord and the tenant, Reference in this respect has been made to Abdul Hadi alias Abdul Hadi Hussain and 2 others v. Syed Ali Haider and others (P L D 1983 S C 342) wherein it was below. "We are unable to agree. 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 landlord has obtained the necessary sanction for it 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 recons truction 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." While referring to the above observations and similar observation made by the Supreme Court in Zoab and S others v. Akhtar Ali (1983 S C M R 391) the learn ed counsel has argued that .the impugned regulations impose restrictions on the right of the landlord to plan the new building according to his choice which is not contemplated by the Rented Premises Ordinance, and as such the same are repugnant to the said Ordinance, Reliance was placed by Mr. Sadiq on Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another (PLD1964SC673); wherein at page 779 of the report it was observed; "A great deal of argument has been advanced as to the tests to be employed for determining in what circumstances a repeal by implication take place. One of the tests suggested is that such repeal can only be implied where it is clearly not possible for both laws to be obeyed. This may be‑ a good test in most cases, but it does not in my view, apply in all cases. It may be possible in some cases for both laws to be obeyed and yet there may be such repugnancy between the two as would entitle the Courts to hold that there has been an implied repeal. If the inconsistency covers the whole field of legislation, the test suggested may well be sufficient, for, the mere existence of two sets of contrary provisions would naturally exclude one. But where the inconsistency does not cover the whole field as in the present case, it may be necessary to examine and contrast the provisions of the two statutes in more detail in order to discover, as was pointed out by Issacs, J. in the case of Ciyde Engineering Company Ltd. v. Cowburn 37 C L R 466, 'if one enactment makes or acts upon as lawful that which the other makes unlawful, or if one enactment makes unlawful that which the other makes or acts upon as lawful.' If so the two must be held to that extent to be inconsistent even though 'it may be quite possible to obey both simply by not doing what is declared 'by either to be unlawful. 'No doubt the Courts should not be too astute in discovering such inconsistency, for, such inconsistency is not to be readily inferred but where the co‑existence of the two sets of provisions would palpably be destructive of the object for which the later statute was passed, the earlier must be deemed to have been, impliedly repealed to the extent of the inconsistency. Repeal by implication is merely the consequence of contradictory or inconsistent legislation to which the Courts must give effect if the inconsistency cannot reason ably be reconciled." While dealing with the question, Bindra in his book known as Bindra's Interpretation of Statutes, 7th Edition, at pages 833 and 834 says : "A rule or regulation must not be inconsistent with the Act and a bye‑law should not be repugnant to the law or the rule. If it can stand with the Act a regulation may prescribe only anything the act requires or permits to be prescribed (the word 'permitted' meaning expressly or impliedly allowed') but also anything necessary or convenient to be prescribed for giving effect to the Act. Where the words of an enactment are clear, the rules made thereunder must, if possible, be reconciled with it, and where that cannot be done, must give away to the enactment. A bye‑law ii not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law does not say is lawful if it expressly or by necessary implication professes to alter the general law of the land ..if adds something inconsistent with the provisions of a statute creating the same offence, but if adds something not inconsistent, that‑is not sufficient to make, the bye‑law had as repugnant. A bye‑law being repugnant to general taw simply because of two lawful courses it adopts one and rejects the other, and on that which it adopts it imposes special conditions; or limitations or even penalties, repugnancy implies a conflict between two provisions neither of which can be given effect to without infringing the other. There can be no such conflict between .a bye‑law and the general law if' the bye‑law operates in a particular sphere selected by it even though to the exclusion of another, so long as it confines itself within the broader limits of the general law and does not involve any violation of its fundamental principles or policy _ and is capable of being construed as supplementing the general law. When the purpose of a power includes both prohibiting and regulation, it authorizes a bye‑law which prohibits conditionally, although the conditions may properly be described as regulatory. Although the principle enunciated in the judgment of Supreme Court applies to statutes, but the above quotation 'from Bindra makes it abundantly clear' that `a rule or a regulation or a bye‑law, as long as it confines itself within the broader limits of the general law, may not be repugnant thereto, but if any such situation arises then the Court must denounce the same at once ac inconsistent.

23. Now, looking at the regulations, the same only provide for execution of an agreement by the landlord and the tenant before any sanction for reconstruction of building may be accorded by the respondent No.

1. But if any breach of such agreement is committee by the landlord, the tenant can still have resort to the provisions of section 15(4) of the Rented Premises Ordinance. Therefore, where does the questions of any repugnancy' arise between the provisions of the impugned regulations and subsection (4) of section 15 of the Rented Premises Ordinance. Moreover, nothing can be spelt out from :he regulations to show that the same restrict the choice of the landlord in planning the new building as the regulations do not only provide for agreement in respect of the alternate accommodation but the same even provide for compensation to the tenants. It is, therefore, follows that when the landlord is unable to provide accommoda tion to the tenant after reconstruction of the building, compensation can be the other alternative. We, therefore, find it hard to agree with Mr. Sadiq that the regulations stand impliedly repealed by section 15(4) of the Rented Premises Ordinance.

24. However, as we have already said that the impugned regulations are in excess of powers vesting in respondent No. I and are unreasonable this petition is, therefore, allowed and the regulations dated 12-4‑1984 are declared as ultra vises the powers of the respondent No. 1 and of no legal effect and any further action taken thereunder by the respondent No.1 is also declared to be equally illegal and void.

25. In view of the circumstances of the case, the parties are left to bear their own costs. A. A. Petition accepted.