1988 PLP 1515 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the Province of Punjab through Secretary, Education Department for examining whether a landlord could get a property vacated under provisions of clause (3)(a)(i) of section 13 of the Punjab Rent Restriction Ordinance for being used for establishing a school and not for his own residence when a Government controlled educational institution was already functioning in the premises. Khan Bahadur Mian Iqbal Hussain, the father of the respondent‑landlord had established a private institution which had come to be known as "Iqbal Hussain High School". On the promulgation of Martial Law Regulation No.118 in the year 1972 the management of this institution together with the property attached to it got vested in the Provincial Government. Mian Akbar Hussain, respondent No.3, sought the eviction of the institution from this property on various occasions. This property was requisitioned from 12th of February, 1977 to 14th of December, 1983 when the requisitioning order was annulled by the District Judge in a suit instituted by the respondent. The ejectment proceedings from which this appeal has arisen gas instituted before the Rent Controller on 17‑12‑1983. The grounds on which the eviction from the property was sought were that the property in dispute was required by him bona fide for his personal use, that the appellant had damaged the property and impaired its value, that a portion of the property had been sublet without his permission, that the appellants had committed acts of nuisance and they were defaulters in the payment of rent since 1‑7‑1976 till the date of the institution of the eviction application. This petition was contested by the appellants and the following issues were framed on the pleadings of the parties: ‑ (i) Whether the disputed property is required in good faith by the petitioner for his personal use? OPP. (ii) Whether Respondents Nos.l to 4 have damaged the property in dispute in a manner which has impaired its value? OPP. (iii) Whether the property in dispute has been sublet to Respondent '4o.5 by respondents Nos.l to 4 without prior consent of the petitioner? OPP. (iv) Whether the respondents have committed acts of nuisance? OPP. (v) Whether Respondents Nos.l to 4 have willfully defaulted in payment of monthly rent? OPP. (vi) Whether the Petition is not competent in view of Preliminary Objections Nos.1 to 3 of the written reply? OPP. ??????????? (vii) Whether the petitioner has no cause of action? OPP. (viii) Whether the disputed property has been improperly described, if so what is the correct description: OP. Parties. (ix) Whether the ejectment petition is bad for misjoinder of unnecessary parties? OPP. (x) Relief. The Rent Controller held that the property was required in good faith by the landlord for his personal use, that the property had been sublet without the prior consent, that there was willful default in the payment of rent. On these findings the Rent Controller ordered the eviction and allowed a period of four months to vacate the building and hand over its possession to the landlord. An appeal was filed before the District Judge which was heard by the Additional District Judge on 20th April, 1985 and dismissed. Findings recorded by the appellate authority on the material issues were as follows:‑ "(i) Perusal of the statement of the respondent as A.W.3 reveals, that the same is confidence inspiring; therefore, such a statement ought to be given due weight. The building in question has also been shown to be suitable for the reed of the respondent, for, he affirmatively stated that he intended to run a school in the suit property by himself and further added that he had a liking for this profession and was, accomplished with the necessary capabilities of running an educational institution. This is also in his statement that he had been running a school previously and that he had no other property which could correspond to the needs of this type of profession. Statement of the respondent on this important and material point remained unrebutted by the appellants. (ii)? As regards the finding of the Rent Controller on issues 3,5 and 8 in favour of the respondent, the same is also founded upon balanced reasoning. Learned counsel for the appellants failed to point out any misreading of evidence or non‑reading of any material piece of evidence on the part of the Rent Controller, before concluding these issues in favour of the respondent. I, therefore, confirm the finding of the learned Rent Controller on these issues also." A further period of four months was allowed for vacating the building and handing over the possession. The Constitutional Petition was also dismissed. The only question examined was the personal requirement of the property by the landlord which was disposed of in the following words:‑ "In my view, his statement shows that he is capable of managing the school as he has liking and experience for that profession. He was subjected to lengthy cross‑examination but of no avail to the petitioners to shatter his plea which establishes his bona fide need seeking vacation of the disputed property." The landlord agreed in the High Court to allow one year's period for vacating the premises in dispute whereupon the High Court permitted its occupation by the appellants till 30th December, 1986. Mr. Khalil Ramdey, the learned Advocate‑General has emphasised, as he did in the High Court, the nature of requirement of ‑ the landlord in order to establish that it did not satisfy the mandate of the law on the subject. According to him the requirement had to be in the nature of need. Something more than a mere desire a fondness or the fancy, and according to him the landlord has miserably failed in establishing such a need of the property for his purpose. He has referred to among others the decisions in Sh. Khushi Muhammad v. Kh. Muhammad Rashid Wain 1968 S C M R 1158, Siraj Din v. Suba (through his Legal Heirs) (1984 S C M R 722), Phiroze Bamanji Desai v. Chandrakant M. Patel and others (AIR 1974 SC 1059), Mst. Bega Begum and others v. Abdul Ahad Khan (decd.) by L.Rs. and others (A.I.R.1979 S.C. 272) Re New hill Compulsory Purchase Order 1937, Payne's application (1938) 2 All England Law Reports 163 in order to establish his case. Mr. S.M.Zafar, Sr. Advocate, the learned counsel for the respondent landlord has contended that it is a fit case where leave granting order itself should be recalled because the ground on which the leave was granted did not arise in the case. It was a commercial building which was required for commercial purpose and there was no question of its being utilized or not expected to be utilized for residential purposes. Besides, according to the learned counsel for the respondents the language of the law relates the requirement to the property and not to the person i.e. the landlord. In that situation it was fully established that this very property was being used by the respondent‑landlord and before him by his father for running the educational institution, that it was still being used for the same purpose and that with his qualification, experience and background as a part of self fulfillment it was in fact his bona fide need to keep the building occupied in a meaningful activity, dear to him. The relevant portion of the law applicable to the case is reproduced hereunder:‑ "13.????? (3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession ? (i)???????? ........................................................ (ii) in the case of a non‑residential building or a schedule or rented land, if‑‑ (a) he requires it in good faith for his own use or for the use of any of his male children; (b) he or his said child is not occupying in the same urban, area in which such building is situated for the purpose of his business any other such building or rented land, as the case :nay be, suitable for his needs at the time; and (c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance in the said urban area: ???????????????????????????????????????????????????????????????????????.. (d) The Controller shall; if he is satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application; ???????????????????????????????????????????????????????????????????????.. (4) Where a landlord who has obtained possession of a building or rented land in pursuance of an order made under sub‑paragraph (i) or sub‑paragraph. (ii) of paragraph (a) of subsection (3), does not himself or where the building has been got vacated for the occupation of any of his children such child does not occupy it within one month of the date of obtaining possession, or having been so occupied is re‑let within two months of the said date to any person other than the original tenant, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly." The word "require" has been subject‑matter of discussion in too many cases as it is a word often used in statutes and contracts. The Oxford English Dictionary (Volume‑VIII) gives its meanings as "to ask for (something or person) authoritatively or imperatively, or as a right; to demand, claim, insist on having." Another meaning of the same word is "to demand as necessary or essential on general principles, or in order to comply with or satisfy some regulation." In Corpus Juris Secundum, its varied meaning has been given in the following words: "The word 'require' is derived from the Latin 'requiro,? compounded of 're' and 'quaere,' to?? seek for, or to seek to get back. It is an ambiguous term, and is defined in several senses. In one sense 'require' is defined as meaning to demand; to request; to exact; to insist on having; to claim as by right and authority; to compel; to command; to direct; to order; to enforce; to prescribe. The term is also defined as meaning to ask; to ask as a favour; to ask as of right and by authority; to ask or order to do something. In a slightly different sense 'require' is defined as meaning to need or call for; to have need or necessity for; to render necessary or indispensable; to want; to need, want, or have occasion for." In Saunders 'Words and Phrases Legally defined' (Second Edition, Volume IV), the following variations of the meaning have been given:‑

"The word 'required' by itself is certainly ambiguous. It may mean in some context no more than 'desired', and an instance of this can be found in section 5(5) [of the Landlord and Tenant Act 1927 (repealed by the Landlord and Tenant Act 1954) ] 'every lease granted under this section shall, if the landlord so requires', etc. It may mean, on the other hand, in other contexts 'indispensable', as when one says 'human beings require adequate nourishment to maintain proper health'." Nuthall (1917), Ltd. v. Entertainments and General Investment Corpn., Ltd. (1947) 2 All E R 384, per Hallett, J. at p.392." There is a qualifying word attaching to the requirement and that is of good faith provided in the law itself. There is a penalty provision of restoration of the property in case there is failure on the part of the landlord. These qualifications, limitations and prescriptions clearly suggest the context by reference to which the law has to be interpreted and applied in a given situation. It is readily conceded not only by the respondents but by all dealing with the subject that the requirement here does not mean the fancy, the desire, the fondness or the mere aspiration of an individual. There has to be something more. It has not to be on the other extreme the need in the sense of survival or in the sense of continuing physical existence or a dire need without which the man cannot do. The meaning has necessarily to be fixed somewhere in between dependent on the facts of each case and the condition of the parties to the litigation and the nature of the property involved. This question of fact in this case has been determined by two authorities exclusively charged with the duty of administering the law, namely, the Rent Controller and the appellate authority and none of them adopted the yardstick of a mere desire and fondness or ambition or of a dire necessity or indispensability. They have therefore, kept themselves within the jurisdiction allocated to them for determining this question of fact. The High Court has in the constitutional jurisdiction examined the question whether there has been any excess of jurisdiction, lack of it or improper or illegal exercise of it. It has find none. We have reviewed the proceedings and find that a person may? be very affluent and well to do, may not need a property for his economic betterment. All the same he may want it to keep himself meaningfully pre‑occupied, to advance and fulfil his educational and cultural aspirations, to meaningfully contribute in his own way to his social and intellectual betterment. When the landlord in this case stated that he wanted to run an educational. institution as he had been doing before its take over, he expressed that need of his which was personal to him, which had a background and a plausible reason for it. The bona fide, the genuineness of the urge and the past experience have not been doubted by any of the authorities dealing with the case and we also find no occasion to doubt it. In a case one like before us what the authorities have to ensure is that such a requirement is not used as a ruse, or pretext to get the tenant evicted without any real intention to utilize the property in the manner disclosed. The authorities cannot be judges of the soundness of an enterprise or the correctness of the choice or the suitability of the individual for the enterprise. We find, therefore, that it was not a case where the High Court could have interfered while exercising the constitutional jurisdiction and has rightly not interfered with it. There are two other grounds, both of fact, which have also been decided by the authorities against the appellant namely, of default in the payment of rent and of subletting. These grounds have not been touched upon by the High Court and we are not inclined to consider them as we are maintaining the view taken by the High Court in the matter. There is another ground urged before us which was earlier taken up before the authorities, that two Khasra Numbers in particular namely, Khasra No.1303 and 1306 measuring one Kanal 160 sq. ft. were evacuee property which had been sold to the institution for Rs.10,356 and in respect of which the landlord cannot seek relief as it being property, of the institution remained with the appellant under M.L.R.

118. As this i5 a title dispute, not dealt with in the proceedings and relates to a small portion of the property which has altogether a different history, we would direct that it need not be considered foreclosed by this decision and the parties will have a right to proceed in accordance with law if they have any claim in respect thereof. With this observation this appeal is dismissed with costs. M.B.A./P‑47/S??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.