1986 PLP 992 (MLD)

‑‑‑Ss.15 & 21‑‑Sind Building Control Ordinance (V of 1979), S.6‑‑ Ejectment of tenant‑‑Reconstruction of premises‑‑Sanction for‑‑Landlord, held, had fulfilled requirement of law by producing on record necessary sanction for reconstruction without any rebuttal thereof. Umer Draz v. Mst. Fatima 1986 C L C 103 ref. (c) Sind Rented Premises Ordinance (XVII of 1979) ‑‑‑Ss.15 & 21‑‑Sind Building Control Ordinance (V of 1979), S.6‑ Ejectment of tenant‑‑Reconstruction of premises‑‑Premises in occupation of tenant was situated in building within strip of open space according to approved plan‑‑Such approved plan being related to reconstruction of whole building, no construction, held, could be raised without demolishing premises in occupation of tenant‑‑Ejectment could not be refused on ground of tenanted premises being within open space of approved plan. Nasim Farooqui for Appellant. Zafar Alam Khan for Respondent. Date of hearing: 4th March 1986. I propose to dispose of the above‑noted, two rent appeals by this order as both these appeals relate to the same property and the ejectment was granted by the Rent Controller in both the cases on the ground of reconstruction of the premises in favour of respondent/ landlady. Mr. Naseem Farooqi, learned counsel for the appellants has challenged the order of Rent Controller in both the cases on the ground that the evidence on record was not sufficient to establish the bona fide requirement for reconstruction of the premises. It is also contended by the learned counsel that there was no valid sanction available on record before the Rent Controller at the time he granted the order of ejectment against the appellant. Alternatively it is contended that the respondent having failed to produce approval of the plan and a no objection certificate in accordance with section 6 of Ordinance 5 of 1979 no ejectment order could be granted in her favour by the Rent Controller. Additionally, it 'is contended that according to approved plan on record a 22‑ft. wide space was to be left open un-constructed and the premises of the appellants being situated on that very portion of land, there was absolutely no ground for grant of ejectment application as the respondent failed to prove that she could not construct the remaining premises according to approved plan without demolition of the premises of the appellants. After hearing the learned counsel for the parties at length, I am of the view that no case is made out for interference with the order of Rent Controller. The rent‑cases against the appellants were instituted by the respondent on 19‑1'1.‑1978 under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. In the ejectment application the respondent alleged that 'she had obtained necessary sanction from the K . M. C . on 27‑5‑1977. It was also alleged in the application that the sanction granted to the respondent expired on 25‑7‑1978 but it was renewed for another period of one year. It is, therefore; quite clear that on the date. of institution of. ejectment applications against the appellant the respondent had in her possession both the approved plan as well as sanction for reconstruction. No doubt the sanction which was valid on the date of filing of rent application expired during the proceeding of the case but the respondent in her evidence before the Rent Controller produced a letter, dated 30th September, 1979 issued by the Building Control Authority of the K.D.A. whereby approval of the sanction of the building plan, dated 27‑7‑1977 was extended for a further period of one‑ year with effect from 30th September, 1979. This document was produced by the respondent along with his affidavit of evidence, dated 3rd March, 1980 and genuineness of this document was never challenged in the cross‑examination which took place on 28‑3‑1980. It is, therefore, quite clear that both at the time the ejectment applications were instituted by the respondent in Court as well as at the time she was examined in the Court there was a valid sanction in favour of the respondent for reconstruction of the premises. In the case of Rashid Brothers v. Muhammad Anwar 1981 S C . h1 R 782 it is held that if during the Pendency of the ejectment application validity of the approved plan hasp expired then on that basis the application cannot be rejected as getting the sanction renewed is only a formality. Therefore, the expiry of Validity period cannot be fatal to the ejectment application instituted by the landlord. In the present case not only on the date when the application for ejectment was instituted the landlord had a valid approval of the sanction of the plan in her favour but that the same was renewed from time to time, and on the date she was examined in Court the sanction granted by the Authority concerned was valid. I, therefore, find no substance in the contention of the learned counsel for the appellants that as on the date of passing of ejectment order by the Rent Controller there was no subsisting sanction in favour of the respondent the Rent Controller could not grant the ejectment application The next contention of the learned counsel for the appellant is that after enforcement of the Sind Building Control Ordinance, 1979 (Ordinance ' 5 of 1979) it was incumbent on the respondent to have produced on record the approval and no objection from the Authority in accordance with section 6 of the .said Ordinance. Reliance in this connection, is placed by the learned counsel on a case decided by me reported Umer Draz v. Mst. Fatima 1986 C 'L C

103. The case relied by the learned counsel for the appellant is of no assistance in the facts and circumstances of the present case. Learned counsel for the respondent rightly pointed out that in the present case the respondent had obtained necessary sanction as required under section 6 of the Ordinance and the same was produced before the Rent Controller along with affidavit of documents. I have already referred to this document earlier. It is, dated 30th September 1979 and it 'shows that it was issued by the Authority under the Sind Building Controller 1979. In view of this piece of documentary evidence which was not at all rebutted by any other evidence by the appellants the contention raised by the learned counsel has no force. The last contention of the learned counsel for the appellants in the above two cases is that according to approved plan the respondent was required. to leave a compulsory open space of 22 ft. and as the premises of appellants are situated on this compulsory open space there was no justification for the Rent Controller to have granted ejectment of the appellant as the proposed construction on the new site could be carried on by the respondent without disturbing the existing shops of the appellants. The contention of the learned counsel for the appellant has not impressed me at all. Firstly, the approved plan submitted by the respondent relates to the whole of the plot and according to the approved plan and the sanction granted for the approved plan no construction can be allowed to exist on the open space shown in plan within an area of 2 ft. It is, therefore, not possible to argue that the appellant could have raised construction on the plot without demolishing the existing construction on the 22 ft. wide space which is to be left free of an construction. Secondly, the appellant nowhere in the written statement before the trial Court contended that their premises are situated o C the 'compulsory open space. In fact the learned counsel for the respondent pointed out from the cross‑examination of appellant in F.R.A. No.797 of 1982 that he denied the suggestion that his shop was situated on the compulsory open space. Even, otherwise, the fact that the shops of the appellant are situated allegedly within the strip of open space shown in plan cannot be a ground for refusing ejectment as it is not shown that under the rules of the K . M. C . /K. D. A : it is permissible that in such cases the landlord can proceed with the construction of the building without demolishing the construction existing on the space which is required to be left free of all construction. The fact that it is admitted by the appellants in their evidence that first floor of the building was demolished having been declared as dangerous long before and that the rent paid by the appellants was only Rs.35 and Rs.10 respectively was enough to show that there was a bona fide desire on the part of the appellant to improve his property commercially. No other point was raised. There is no substance in these appeals which are accordingly dismissed but the appellants are allowed four months time to vacate the premises subject to the condition that they shall continue to deposit monthly rent in Court for the premises in their respective occupation as directed by the Rent Controller. There will be no order as to costs. H.B.T. Appeal dismissed.