1999 PLP 2436 (MLD)

"Proceeding before Rent Controller could not be defeated on account of absence of sanction of building plan which may be obtained only before order of eviction." My learned brother Malik Muhammad Qayyum, J., also considered this proposition of law in Taj Muhammad's case (1995 CLC 1269) and observed as follows: -- "There was no sanctioned building plan but by the time an order of ejectment of the tenant is passed building plan stood sanctioned, the requirements of section 13(2)(vi) of the Punjab Urban Rent Restriction Ordinance stand satisfied." This Court also considered this proposition of law from the facts that the landlord submitted a building plan for reconstruction to the Municipal Committee for its sanction but Municipal Committee failed to pass any order on the application for permission within fixed period of 60 days and after the elapse of 60 days, the site plan shall be deemed to be a sanctioned plan as is held in Muhammad Idrees Shah's case (1993 CLC 143) the relevant observation thereof is as follows: -- "In case, the local council did not dispose of an application for sanction for a period of sixty days from the date of its registration without any order having been passed on it meanwhile, the sanction shall be deemed to have been granted to the extent to which it did not contravene the provisions of the Building Bye-Laws or sanctioned site development scheme, if any. So, either the Building Plan must have been actually sanctioned by the local council or alternatively it should be deemed to have been sanctioned under section 77(4) of the Ordinance to meet the requirements of law in section 13(2)(vi) of the Ordinance." This view supported by several decisions of this Court and Hon'ble Supreme Court of Pakistan. In view of these circumstances it is settled law that. Rent Controller has to satisfy himself at the time of final decision of ejectment petition that the landlord has produced sanctioned site plan for A the-purpose of reconstructing the whole building irrespective of the fact whether it was produced at the time of filing ejectment petition or at the time of appearing in witness box, the requirement of section 13(2)(vi) are fulfilled in all respects. In view of what has been discussed above, the contention of the learned counsel of the appellant has no force. I am fortified by the following judgments: -- Haji Muhammad Ayub v. Syed Buzaraf Shah and 3 others" (PLD 1983 Pesh. 67); Dr. Muhammad Rafique Qamar Din v. Mst. Fateh Begum (1980 SCMR 608); and (1995 CLC 1269). " The second contention of the learned counsel of the appellant is that the respondent/plaintiff has filed ejectment petition with specific malice to eject the appellant which is evident from his statement that he has no objection if the tenants come in the vacated shops on new terms and conditions but he will not give the shop to the appellant/defendant at any cost, therefore, the building is not reasonably and in good faith required by the landlord/respondent for the reconstruction. This proposition of law has already been settled by the Honourable Supreme Court of Pakistan in Ghulam Muhammad's case (1984 SCMR 1142) wherein it has been held in the following terms: -- "Learned Judge further feel in error in not noticing the clear position under the law that under the amended provisions of clause (vi) of subsection (2) of section 13 of the Ordinance appellants, as landlords, having obtained the necessary sanction for the erection of a new building and demonstrated through evidence on record their intention to demolish the rented premises for construction of a new building on the same site, were under no further obligation, as was the position under the unamended provisions of clause (vi) to prove further the premises were reasonably and in good faith required by them for the said purpose, and were, therefore, entitled under the law to evict the tenant. " In Ghulam Nabi's case (PLJ 1989 SC 372) (sic) this aspect considered and the Hon'ble Supreme Court has observed as follows:-- "The tests for determining the reasonableness and the bona fide of a landlord claim to rebuilt his property are objective tests. Thus, for example if a property is in a dilapidated, condition, the landlord's desire to rebuild it will necessary be reasonable and bona fide and this desire would not cease to be bona fide merely because the landlord tried to defeat his tenant's rights. No doubt, a landlord's refusal to give a fresh lease to the tenant is illegal, but this cannot alter the fact that desire to rebuild a dilapidated property is a bona fide desire." Honourable Supreme Court has also considered this proposition of law in Qamar Din's case (1997 CLC 774). The relevant observation is as follows: -- "But the position under clause (vi) of subsection (2) of section 13 is some what different. This clause may be said to include two important igredients. One, the rented premises is reasonably and in good faith required by the landlord for reconstruction. The landlord has obtained the necessary sanction for the reconstruction. It will be seen that cause of action can arise to a landlord if he reasonably requires the rented premises in good faith for reconstruction. In other words, if he states this much in his ejectment application, his application would be maintainable and the Rent Controller refuse to entertain it." Similarly Karachi High Court in Haji Punhoon's case (1980 CLC 997) observed as follows: -- "The word 'reasonable' as it occurs in section 13(2)(vi) is a word of wide import and its meaning cannot be curtailed arbitrarily and that any reconstruction which would enable the landlord substantially to develop or improve his property would be reasonable within the meaning of the said provision. The two Courts below, therefore, rightly held that the requirement of the landlord was reasonable and in good faith." In the present case respondent/plaintiff has proved his case pertaining to bona fide need of the disputed shop for reconstruction purposes. Respondent/plaintiff has brought sanctioned building plan on record before the ejectment petition finally decided. In view of this respondent/plaintiff proves that he required the rented premises in good faith, therefore, the second contention of the appellant has also no force. I am also fortified by the following judgments: -- (1982 CLC 982); (1983 CLC 844) Haji Gul Muhammad v. Mst. Asmat Ara (1986 SCMR 1651); Ch. K.A.M. Bajwa v. Asghar Ali and 3 others (1987 CLC 2256);' Taj Muhammad v. Salahuddin and others (1995 CLC 1269); Muhammad Idrees Shah v. District Judge Jhelum (1995 CLC 143); Syed Shrin Gul v. Haji Abdul Majid (PLD 1968 Quetta 45); (1995 CLC 1269); Qamar Din v. Capt. Shafique Ahmed Khan (1997 CLC 774). The last contention of the learned counsel of the appellant is that a reconstruction, the object of which is to override the provisions of subsection (5-B) cannot be deemed to be bona fide. This contention is also not well-founded. This proposition of law is settled by the Hon'ble Supreme Court of Pakistan in the following terms in Ghulam Nabi's case (PLJ 1980 SC 372): -- "No doubt a landlord's refusal to give fresh lease to the tenant is illegal but this cannot alter the fact that the desire to rebuild a dilapidated property is a bona fide desire. Now, in such a situation, even if a landlord tries to defeat the tenant's right under subsection (5-B) the strong arm of the law is strong enough to prevent him from defeating his tenant rights but this would not by itself convert a bona fide claim into mala fide claim, the more so, as the interests of the tenant are protected by section 13(5-B), while the development of property is in the national interest and is in no way inconsistent with the objects of toe rent laws." Similarly Quetta High Court interpreted section 13(5-B) and observed as follows: -- But the landlord cannot be refused possession solely on the ground that he must hand over possession to the tenants of the rented land' after erection of a building as is the case where the landlord requires an old building to be reconstructed in which case he is bound under law to give possession to tenants. In the new building as contemplated in section 13(5-B). It is settled principle of law that requirement qua bona fides of landlord is not relevant in view of adequate safeguard contemplated in section '13(5). I am supported by (1969 SCMR 131) M/s. Amir Din Allah Ditta's case Syed Shahid Gul v. Haji Abdul Majid (PLD 1968 Quetta 45). It is also settled law that both the provisions i.e. section 13(2)(vi) and section 13(5-B) relate to different stages of the eviction proceedings, therefore, section 13(2)(vi) is not subservient to or controlled by section 13(5-B) of the Ordinance as is held in (1992 SC (Pak) 1026). There were ample statutory C safeguards for tenant in rent laws against landlord acting mala fide in this behalf. These safeguards have been provided under section 13(5) and section 13(5-A), of the Ordinance are good enough to prove the bona fide requirement of the landlord for the purpose of the reconstruction of the building. Reliance can be l placed on the following judgments: -- M/s. Amir Din Allah Ditta's case (1969 SCMR 131); Muhammad Rafi's case (PLD 1982 Lah. 380); Akbar's case (1982 CLC 982); Abdul Aziz's case (1987 SCMR 2074); and Haji Allah Ditta's case (1980 SCMR 41).

5. In view of the abovementioned circumstances and the principle laid!, down by the Superior Court, the ejectment petition was not premature as the respondent submitted building site plan before the learned Rent Controller in his evidence. The ejectment petition was not based on mala fide and was filed in good faith for the purpose of the reconstruction of the building. The provisions of section 13(2)(vi) and section 13(5-B) are not destructing each other as both were attracted at different stages. The rights of the appellant is fully protected by the statutory safeguard and the respondent is bound/compelled by the provisions of Rent Restriction Ordinance to involve the position of newly constructed building to the appellant.

6. The case was fixed for re-hearing today i.e. 26-2-1998. The learned counsel for the respondent argued the case for some time and respondent has made following statement: (Copy of the same is placed on record as Annexure I): -- (i) He shall complete the construction of the disputed property within six months positively. (ii) He shall hand over the shop to the appellant after construction on rent. For what has been discussed above including statement of respondents the appeal is disposed of in the above terms. There is no order as to costs. Q.M.H./B-46/L Order accordingly.