1991 PLP 1994 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑All these appeals raise a common question of law and it is whether section 11 of the Balochistan Rent Restriction Ordinance (hereinafter referred to as the Ordinance), controls the landlord's request for demolition of the building and its reconstruction where conversion of residential property into non‑residential property is involved.

2. The respondents are the landlords of extensive property measuring over 18,939 sq. ft. of which a part is even now residential having various tenements and the other part is non‑residential having a restaurant and hotel. The landlords sought the eviction of the tenants of the residential as well as the non‑residential portions of the property on the ground which on facts has been disclosed as hereunder:‑‑ "That the three new houses are to be constructed in good faith for their own bona fide use and occupation as presently they are residing in a rented house and so far as the Maternity Home is concerned, the same would also be run by the applicants for the purposes of their businesses. The applicant No.6 Parveen Bokhari is a Lady Doctor, Arifa is also a Lady Doctor and applicant Akbar Shah is a student of Final Year M.B.B.S. in Bolan Medical College Quetta. Hence the new building of Maternity Home would be required by the applicants in good faith for their own bona fide occupation."

3. The proceedings were contested and a large number of issues were framed. The Rent Controller directed the eviction by recording a finding in favour of the landlords with regard to their need of the house for reconstruction and also the need for their personal bona fide use and occupation. The orders of the Rent Controller were affirmed in appeals by the High Court. Hence these appeals by the tenants.

4. On the factual plane, the contention with regard to the leave granting order is that the property was residential to extent of 1/2 and non‑residential to the extent of the remainder. Even after demolition and reconstruction it is only non‑residential portion which is to be converted into a non‑residential portion like maternity home and the residential portion is to be reconstructed into three bungalows for their own occupation. Hence, the question of law does not in fact arise in the form in which it has been recorded in the leave granting order.

5. We have under consideration a composite property comprising both residential as well as non‑residential portions. The same character would remain even after reconstruction though the residential units will get demolished and reduced from eleven to three. Nevertheless, the character of the building as such will not change. Besides, on an examination of section 11 of the Ordinance with the law on the subject namely, Abdul Hadi alias Abdul Hadi Hasan and 2 others v. Syed Ali Haider and others P L D 1983 SC 342 and Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others P L D 1985 SC 242, we find that section 11 of the Ordinance relates to an existing building and its use and not to a building which is to be reconstructed after demolition of the old building. The latter would be governed by its own zoning bye‑laws of the local authority, the Rent Controller playing no part in the sanctioning of the plan or the utilization of the property after such reconstruction.

6. The learned counsel for the appellants urged that they want to raise certain additional legal grounds which are not a part of the leave granting order. We have ascertained from them the grounds which they want to additionally take. Their first contention was that as the reconstruction plea was coupled with the need of the landlords also, the failure of the personal need would also entail the failure of the ground of demolition and of reconstruction. For this reliance was placed on Abdullah Baloch v. Adam Ali P L D 1961 SC 28 and Abdul Bari v. Khadim Hussain P L D 1978 SC

78. The other ground taken was that the facts of the case show the mala fides of the respondents in taking up these pleas.

7. So far as the first additional ground is concerned, we find that there has been a misconception in the minds of the learned counsel for the parties as well as of the Rent Controller with regard to the sort of need that was pleaded. The need that was pleaded has been reproduced in this judgment. It was not the statutory need which would have justified the Rent Controller to pass immediately an order of eviction of the tenants. This need was a prospective need after the property had been reconstructed and it was relevant not for the purposes of establishing immediate need but for showing the bona fides of the type of construction that was sought to be raised and how the reconstructed building was sought to be utilized. This is clear from the fact that mention of a son who had just taken admission in the Medical College was made and it is alleged that he got deranged and has now died. Similarly, Dr. Arifa has been mentioned whose need could not be made the ground for seeking eviction of the tenant in view of her relationship. The likelihood of that sort of need being not established as stated in the pleadings would not disentitle the respondents to demolish and reconstruct the property. Some of them being doctors and even as owners of the property could establish a clinic for extending the medical facilities in the locality to which they belonged. Therefore, this argument that if the need fails, the plea of demolition and reconstruction also fails is based on misconception.

8. The property is extensive and the respondents have the necessary means to reconstruct it. To say that some of them are gainfully employed abroad or have no intention to come to Quetta immediately will be no ground for defeating their need for reconstruction after demolition of the property. If they are earning abroad, they may like to improve their property to utilize it in a more economical manner and to allocate a part of it for their own professional advancements. It is not for the tenants to stand in the way of professionally qualified people in utilizing their own property after reconstructing it.

9. In the circumstances, we find no merit in the appeals which are hereby dismissed. AA./F‑220/S Appeals dismissed.