P L D 1984 Supreme Court 38 (PLP)

SHAFIUR RAHMAN, J.-Leave to appeal was granted to the appellant, a landlady, to examine, inter alia, the following questions of law arising out of a case instituted by her under section 15(2)(viii) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), seeking eviction of the respondent, her tenant: - (i) Whether the provisions of section 15(2) (viii) of the Sind Rented Premises Ordinance, 1979 read with section 3(1) of the said Ordinance would not override the terms of the lease deed and enable the landlord to obtain possession of the premises if she realty required it for her owe use and occupation? (ii) Whether the finding given by the Rent Controller that the petitioner required the premises in good faith for her own use and the use and occupation of her spouse has been upset by the High Court on/ extraneous and irrelevant consideration? The appellant is the owner of a plot (No. 569) Garden East measuring 949 square yards on Jahanghir Road, Karachi. It had a bungalow built on it which was occupied by the appellant. In 1965 when the appellant decided to lease out the plot, the bungalow was in fact demolished and the plot was leased out to the respondent-Company on 1-5-196.3 for establishing at its own cost and investment a petrol pump and service station. This lease was initially for a period of 10 years with two options made available to the lessee to get it renewed, in all for 30 years. The first renewal took place in May, 1975 and is to last till May, 1985 with yet another option of 10 years available to the respondent. The lease deed was registered and some of the salient features of this lease were that -the lessee was free to erect and permit to be erected on the demised premises any hoarding or other usual advertising material incidental to their trade and business, and the lessee was entitled to assign or sublet the demised premises. The lessors, on the other hand, undertook not to evict or interrupt the enjoyment of the lessee if the lessee continued paying the rent reserved and observed the covenants. The appellant shifted to rented premises. On 8th February, 1981 the appellant served a notice on the respondent to vacate the premises forthwith as she wanted it for her own occupation and that of her family. She thereafter instituted an application for ejectment under section 15(2) (viii) of the Ordinance. This application was contested by the respondent on numerous grounds including the inapplicability of the ground of personal need in view of the registered lease-deed and the currency of the agreement between the parties whereby the appellant was precluded from ejecting respondent from the premises unless he violated the terms of the agreement itself. The Rent Controller framed the following issues on the pleadings of the parties: (1) Whether the applicant requires the disputed premises for her personal bona fide use? (2) Whether this application is premature? (3) What should the order be? The Rent Controller held that the appellant had proved her case for bona fide need which was not disputed by the respondent in evidence. The ejectment application was held to be premature on two grounds. It was found that the appellant could not invoke the ground of personal need as long as the lease deed remained effective whereby she could not secure the ejectment except on breach of the covenants contained therein. It was further held that there was an arbitration clause in the lease-deed which had to be invoked before getting the respondent evicted from the premises. The application of the appellant was, therefore, dismissed. On appeal the learned Judge in the High Court held that the appellant was bound by the lease-deed and further that her personal need and good faith were not established. The order of the Rent Controller rejecting the application was maintained though reasons given therefor were different. The learned counsel for the appellant has taken us through the various provisions of the Ordinance starting from its preamable with a view to emphasize that the personal need of the landlord as enacted in clause (viii) of section 15, subsection (2) has an overriding effect over the covenant of the lease-deed and 9ncc such a need was established the Rent Controller had no option but in terms of the mandate given to him under section IS to direct the eviction of the tenant. It is also contended that Civil Procedure Code being not applicable to the proceedings, principles of Order XLI, rule 22 could not be utilised for challenging the finding of the Rent Controller with regard to the personal need of the appellant and for interfering with that finding. The reference to the earlier law which had a proviso restricting the right of a landlord to seek eviction of the lessee was for a fixed period while had not expired was not relevant in the context of this law because it. had no such proviso and provisions clearly had an overriding effect. Finally the learned counsel for the appellant urged that the hardship of the tenant, his investment and .stakes should not have taken into consideration or, in any case, allowed to play such a decisive role in determining and giving effect to the personal need of the appellant. Once the statutory requirement was satisfied the element of hardship could not stand in the way of enforcement of the rights of the appellant. The learned counsel for the respondent, on the other hand, contended that the Ordinance was inapplicable to the lease-deed entered into between the parties According to him it was demise of land and interest in land as distinguished from a tenancy at will or a tenancy at sufferance. The latter was within the purview of the Ordinance but not the former. It was further contended that such agreement as was entered into between the parties is recognized by the Ordinance itself and in determining the personal need the attending circumstances and the terms of the agreement should have been looked into and made the basis of decision. Notwithstanding the repeal of the earlier law and the proviso, where the. landlord himself for valuable consideration puts a clog on his right to get the tenant evicted on the ground of personal need he cannot be allowed to repudiate the clog at his convenience. He has also contended that even without filing cross-objections or availing of the procedure prescribed under Order XL1, rule 22 the respondent could urge before the High Court in an appeal filed by the landlord that the order passed by the Rent Controller be maintained though on different grounds. Such a course was open to him whether Civil Procedure Code applied or not and whether he had formally challenged the finding or not. The contention of the learned counsel for the appellant that the terms of the agreement stood overridden by the provisions of the Ordinance is based on the express words .of section 3 of the Ordinance that "Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of this Ordinance" and recognition by the Ordinance of the ground of personal need in following terms : "The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be prescribed in the order if he is satisfied that . , (viii) the landlord requires the, premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children." This ground according to the learned counsel for the appellant gets added strength because it is independent of ground No. (i) for getting the tenant evicted for the reasons that "the tenancy has ceased to be valid under section 6". The earlier law on the subject viz. the Sind Rent Restriction Ordinance, 1959, had a proviso that "where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period." No such proviso has been enacted in the Ordinance. This deliberate omission, according to the learned counsel for the appellant, makes the ground of personal need of the landlord completely uninhibited, and once established must ba given full effect irrespective of hardships of the tenant or the extent of his investment or the terms of the agreement. Though not directly to the point or decisive of the issue, the interplay of the Rent Control Acts and the general law of the land (Contract Act and Transfer of Property Act) governing the relationships of landlord and tenant is helpful in understanding the problem-and in resolving it. In Halsbury's Laws of England (4th Edition) Volume 27 para. 44 the following statement of the law on the subject is found : 'It is most important to note that in both the public and private sectors as between the landlord and the tenant it is the contract made between them from which their respective rights derive and on to which the statute engrafts modifications or in respect of which it confers opportunities. The ordinary law of contract and the ordinary rules of law applying as between landlord and tenant continue to apply both in the private and the public sectors, subject to these special -statutory modifications and additions. The law of landlord and tenant is therefore a topic of very uncertain definition and scope and in respect of any problem which arises as between landlord and tenant it is at all times important to consider whether there are statutory provisions of general application which impinge upon the rights of landlord and tenant without being conventionally regarded as part of the law of landlord and tenant." The same subject has been considered by David Yates and A. J. Hawkins in Landlord and Tenant Law, 1981 Edition at page 333 and the following conclusions are relevant to the case : "While a contractual tenancy subsists, the rights and duties of the parties are governed by the terms of the contract. This is particularly important when the landlord seeks to recover possession from a contractual tenant. He will be able to do so only if the terms of the tenancy provide a means of bringing it to an end, such as forfeiture for breach of terms or conditions, or notice to quit. Otherwise the tenancy will continue until it terminates by effluxion of time or one of the other modes of termination discussed earlier in this book. If the tenancy provides for forfeiture upon breach of terms or conditions, the landlord must show that a breach exists within the manner specified and that the breach has not been waived. If the tenancy is determinable by notice to quit, either expressly or by operation of the special rules governing periodic tenancies, then the appropriate period of notice must be given." Two Indian Supreme Court decisions are also of some assistance in understanding the first question of law arising in this appeal. In the case of Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad and others (AIR1963SC120) Rent Control Act provisions were under examination and there was no such proviso as was contained in the West Pakistan Urban Rent Restriction Ordinance whose omission in the Ordinance hasp been made an additional ground for the appellant by the learned counsel. It was held: "A tenant stood in no need of protection against eviction by the landlord so long as he had the necessary protection under the terms of the contract between him and the landord. He could not be evicted till his tenancy was determined according to law and, therefore, there was no necessity for providing any further protection in the Act against his eviction so long as his tenancy continued to exist under the contract." In the other case of Vora Abbasbhai Alimahomed v. Haji' Gulamnabi Haji Safibhal (1), also the protection afforded to a tenant under a contractual tenancy was held to be available over and above the statutory protections. In the case of Alif Din v. Khadirn Hussain (2), the law laid down in Muhammad Ashraf v. Muhammad Sharif and others (3), that all the terms of the agreement of tenancy continue to apply even after the prescribed period of tenancy was approved. For purposes of this appeal, it recognized the efficacy and existence of the agreement of tenancy and the terms thereof during the period of its validity. Even in the case of Muhammad Yousaf v. Abdullah (4) (1) A I R 1964 S C 1341 (2) 1980 S C M R 767 (3) P L D 1971 Lab. 610 ' (4) P L D 1980 S C 298 it was held that "an agreement can only be made by the consent of the parties and if an agreement is for a fixed period, it comes to an end on the expiry of the agreed period unless it is renewed by both the parties." The historical background of Rent Laws in Sind and Karachi is that provisions of Contract Act and Transfer of Property Act apply with full force. The earlier rent laws like the Sind Rent Restriction Act, 1947 (Act X of 1947) or of 1952 (Act XIX of 1952) and Karachi Rent Restriction Act, 19.53 (Act VIII of 1953) regulated the "supply of accommodation whether residential or non-residential,, furnished or unfurnished" and were designed "in particular to provide for controlling the rents chargeable for such supply of accommodation and for preventing in certain cases eviction from the accommodation supplied." In 1959 with the West Pakistan Urban Rent Restriction Ordinance the object slightly underwent a change, inasmuch as supply of accommodation no longer remained the object of law. Its purpose was of restricting in public int.-rest "the increase of rent of certain premises within the limits of the urban areas and the eviction of tenants therefrom." Unlike its predecessors, the Ordinance has as it object "making of effective provisions for regulation o relations between landlords and tenants" and "to protect their interests in respect of rented premises within urban areas". Section 5 enjoins the tenancy agreements to be in writing, and to be authenticated either by registration- of the deed or by its attestation by the signature and seal of the designated authorities. The validity of tenancy agreements has been recognized by section 6 and its expiry or its ceasing to be valid, made a ground independently of every other ground, sufficient to obtain eviction of the tenant. Section 7 authorizes the landlord to charge the mutually agreed rent till such time a fair rent is not got fixed from the Controller on an 2 application by either party. . The provisions of the Ordinance permit freedom of contract based on equality of bargaining power in both parties. It formalizes the contract. It does not profess to protect any one class against the other. In this view of the matter if at the time of entering into -lease agreement in 1965 the landlord knew that he was bartering away his personal need under the law then in force for a period of thirty years, he cannot under the statutory provision made in the Ordinance turn back to repudiate the term of the agreement. In the first place the Ordinance keeps alive the contract, lends it continued validity and force and professes to protect as much the right of the tenant as that of the landlord, referable always to a valid subsisting contract. In the second place even if there was such a right available under the law, (for arguments sake but not as a fact) it stood waived because it is not a part of public policy, but of a personal privilege which the landlord could forego for a valuable consideration. The bona fide requirement of the premises by the landlord for "his own occupation or use or for the occupation or use of his spouse or any of his children" is, to begin with, a need personal to him. He has only to place certain facts before the Controller to make the objective assessment, and review in appeal, of his need and good faith possible. When an owner vacate the only house possessed by him, gets it demolished, lets out the plot for commercial exploitation on best market rent on a long lease giving up his right to recover possession if the rent was paid and the covenants observed he cannot on the ground of same need then existing or one which could then be visualized get the tenant evicted. It would not be a requirement justifying eviction. It would not be in good faith. It would be in repudiation of contract. It is not necessary to attend to other objections of the learned counsel for the appellant because the decision of the Controller that in view of a valid subsisting contract between the parties the appellant cannot invoke the ground of personal requirement and that his application is premature stands affirmed. The appeal is, therefore, dismissed with costs. M Z M Appeal dismissed. as shop. He had not been given any transfer documents. Unless the transfer documents or appendices had issued, a determination of the entitlement alone would not maze the property not available for the purposes of Settlement Scheme No. VIII. The learned counsel for the contesting respondent, on the other hand, pointed out that in the first round of transfer the respondent had been issued P. T. O. for the whole property and it remained intact till 22-11- 968 when it was modified. The competition was between a claimant and a non claimant. None else had any vested right. The authority competent to divide the property had divided it on proper consideration of the competing claims of the parties. The contention of the appellant that the orders passed were nullities and the departmental officers could not treat them so necessitating a constitutional petition, is itself a contradiction and shows the weakness of the argument. A right subsequently conferred on locals which was restricted to available property could not be interpreted so as to reopen past and closed cases. In dividing the property the competent officers had inspected the property, kept in view all the relevant factors and passed an order which they could pass. The appellant could not invoke the. discretionary jurisdiction of the High Court to get the propriety or legality of the orders passed examined. The learned counsel for the appellant by reference to section 30 of the Act and a number of decided cases relating to it, has contended that a property for which P. T. O. had not issued could not be said to be a property transferred and consequently on the words of definition of available property in Scheme No. VIII the disputed property remained an available property. It is true that if we are to examine the meaning of the word "transfer" or "transferee" in the context of section 30 of the Act then that conclusion cannot be easily brushed aside. In Settlement Scheme No. VIII, however, we find that an interest has been created in respect of properties "which have not yet been transferred to any person". The creation of an interest or an eligibility envisages the absence of vested interest of anyone else. It was not and could not be the object-of Settlement Scheme No. VIII to interfere with the vested rights of individuals in property. When does a person come to acquire a vested interest or a vested right in a particular property has been brought out with clarity and definiteness in the case of Rafiuddin v. Chief Settlement and Rehabilitation Commissioner (P L D 1971 S C 252). The following finding is relevant to the point under examination : "The provisions of the Schedule indicated the persons or the category of persons who can claim the transfer of a particular property but the right to the transfer of the property accrues or becomes vested only after a final order for such transfer has been made in accordance with the provisions of the Act itself, the Schemes, the rules framed under the Act and the instructions from time to time issued. Until a final order of transfer has been made it cannot be said that the property has been disposed of and is no longer available for transfer. It is only when a property is no longer available for transfer that an order of the Central Government laying down a different mode of disposal will not affect it, on the principle that a change in the mode of transfer cannot reopen a past and closed transaction." It follows that in cases where the final order determining the entitlement[ of a party has been passed by a competent authority in accordance with the law, then notwithstanding the fact that provisional transfer document has not issued, the property will not remain an available property under Settlement Scheme No. VIII. In the case of Khawaja Masood v. Ameer Bux (1976 S C MRS) too an order of transfer without a P. T. O. was held to be sufficient to take out the property from the category of available property. In the case of respondent a final order determining his entitlement was passed and thereafter, that order, remaining, the property could not be an available property for the purposes of Settlement Scheme No. VIII. If a property is available property under Settlemeut Scheme No. VIII then notwithstanding the earlier inaction of a local in its possession, he will get a locus standi to seek its transfer. The sole test is, therefore, of the property being available. The learned counsel for the appellant concedes that there is an order of transfer in favour of respondent; that it was passed by an authority having jurisdiction in the matter, and that it was re-examined and blessed in the appellate and revisional forums, all possessed of their respective jurisdictions to entertain appeal or revision and to dispose of them. He, however, wants to avoid the end product by demonstrating that in exercising statutory powers jurisdiction has been exceeded in a manner and to an extent to render the orders a nullity. In this context the first objection of the learned counsel for the appellant is that the Deputy Settlement Commissioner in his order dated 9-7-1960 after observing that "the building is'situated in the best commercial area of this town and I fell that the shops and the residential portions should be disposed of separately" could not have proceeded to combine two such properties or to transfer both to the respondent to enable him "to earn his breed and butter peacefully". The division having been competently effected in this fashion there was no power left with the Deputy Settlement Commissioner to destroy it or to transfer two properties to the respondent. An P1Pmentary principle applicable to all cases of interpretation of documents is to read the document as a whole, to differentiate between the general statements and particular statements contained therein and to exert and attempt to save the document rather than destroy or nullify it. Keeping these F principles in view we find that the Deputy Settlement Commissioner in dividing a composite property generally separated the commercial units from the residential unit with one exception or . particularity. He inspected the property. He found that respondent was a claimant displaced persons who had applied for the entire property, had at one stage been transferred the entire, and was enjoying the portions of the property for residence and for earning his bread. He combined a shop with the Chaubasa. It is true that ordinarily a more befitting unit would have been the Chaubara combined with the shop or shops underneath but this was not done because another displaced family, of non-claimants was thereby sought to be accommodated., In the whole exercise no other competing interest was involved. Thel respondent being a claimant was directly a "statutory beneficiary" Rehmatullah v. Deputy Settlement Commissioner (P L D 1963 S C 633) or primary beneficiary Ilamuddin v. Chief Settlement and Rehabilitation Commissioner (P L D 1965 S C 615). Proper rehabilitation, of such claimants was indeed the object of the legislation and the Deputy Settlement Commissioner by consciously making an exception was advancing the purposes of the legislation rather than going outside his jurisdiction. The physical incongruity of the unit, shop No. 1 and Chaubara is more in the argument than in fact at the spot. The respondent was possessed of the Chaubara, had the entire roof to himself and we are told the stairs leading to the roof are located adjacent to shop No. 1 and his toillete is also located on the roof directly above shop No.

1. In view of the local inspection conducted by the Deputy Settlement Commissioner before ordering such a division and such division having been kept intact, it cannot be made a jurisdictional ground in a constitutional petition for avoiding the orders competently passed. We find that at no stage of the proceedings ending in transfer of the, disputed property to respondent the jurisdiction was either lacking or exceeded l by the respective officers and authorities so as to render their order a nullity. The claim of the appellant was rightly rejected. The appeal is dismissed with costs. M.

2. M. Appeal dismissed.