P L D 1965 (W (PLP)

"(5) Where the landlord has obtained possession of a building in pursuance of an order under clause (vi) of subsection (2) of this section and does not have‑ the building demolished within a period of four months from the date of taking possession of the same or does not construct the new building within a period of two years after the expiry of the period of four months from the date of taking possession of the same, he shall, unless he satisfies the Court that he was unable to construct the building within the prescribed time for reasons beyond his control, be punished with imprisonment for a term which may extend to six months or with fine or with both. (6) * * * * * * * * * (7) Where the Controller is satisfied that any application made by a landlord for the. eviction of a tenant is frivolous or vexatious, the Controller may direct that compensation not exceeding ten times the monthly rent be paid by such landlord to the tenant." The above subsections are meant to fill up loopholes. Subsection (5) is an assurance against eviction of tenants on false allegations and subsection (7) is an assurance against frivolous attempts to evict tenants.

7. The above recapitulation of the situation contains the entire controversy in outline. In this Court Mr. Muhammad Ali Sayeed, the learned counsel for the appellants, emphasised the point of view typically expressed by the Rent Controller by referring to three judgments in: Ghulam Qadir v. Tajammal Hussain (P L D 1964 Lah. 329), by S. A. Mahmood, J., Faqir Muhammad v. Muhammad Yasin (P L D 1964 Lah. 686) by Sardar Muhammad Iqbal, J. and Muhammad Shafi v. Iqbal Ahmad (P L D 1965 Lah. 23) by Sajjad Ahmad, J. In the first case, S. A. Mahmood, J., has observed as to the effect of the word "may" in section 13 (2) of the Ordinance, as follows:‑ "It may be that in view of this principle, the word `may' was deliberately used in subsection (2) of section 13 of Ordinance VI of 1959 leaving a discretion with the Controller not to direct the tenant to put the landlord in possession if the case falls under clause (1) of subsection (2) of section 13, or if the circumstances of the case are such that it is necessary in the interest of justice not to order so. It must be remembered, however, that it is intended that normally in case of default an order of ejectment is to follow, and the exercise of discretion must be based on good grounds on a careful consideration of all the relevant factors with a view only to prevent grave hardship. The exercise of the discretion must be judicial. As a discretion vests in the Controller, it can also be exercised by the Appellate Authority. Thus the exercise of discretion by this Appellate Authority was not incompetent." (The italics are mine). In the second case Sardar Muhammad Iqbal, J. has observed with respect to the same subject‑matter as follows:‑

"The appellant did not deny the fact that he was defaulter in the payment of rent. The default being there he was liable to ejectment under section 13 (2) (i) of the Ordinance. It is true that the non‑payment of rent does not ipso facto result in an order of ejectment. On proof of default, the Rent Controller has to exercise his discretion whether or not he should, in the circumstances of the case, order ejectment. There may be a default and still the Rent Controller may refuse to pass an order of ejectment. The discretion to be exercised 'by him has to be based on judicial consideration and he has to take care that it is completely immune from the element of a persona whim and caprice." In the third case, Sajjad Ahmad, J. has observed on the same subject‑matter as follows:‑ "The ejectment of the appellant, however, must be refused for another consideration. Under section 13 (2) of the Ordinance eviction of the tenant on the application of a landlord on the ground of non‑payment of rent and other eventualities a enumerated in sub‑clauses (i) to (vi) of the section is a matte of discretion with the Controller, as suggested by the language of the relevant provision to the effect that the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land'. This becomes cleat in contrast with the language used in respect of the tenant's eviction on account of certain other factors as enumerated in Sub section (3) of section 13 in which case the Controller, as laid down in sub‑clause (b) of the same subsection, `shall', if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord into possession of the building or rented land'. When words, although bearing interchangeable meaning in certain contexts but which are also capable of different and distinct meanings are used by the Legislature in the same context, the intention is clear that their separate use envisages different results. Therefore, while the word `may' used in section 13 of the Ordinance suggests a permissive action in one set of circumstances described in sub clauses (i) to (vi) of section 13 (2) of the Ordinance, the word `shall' used in the same context for another set of circumstances described in subsection (3) of the same section suggests a compul sive action. I feel that in the present case, on the tape of the default alleged against the appellant his eviction was discre tionary with the Rent Controller." (The italics are mine).

8. The above quotations reveal the firmness of the ground on which Mr. Muhammad Ali Saeed took his stand. Three learned Judges of this Court have expressed the opinion that the word 'may' which occurs in subsection (2) of section 13 of the Ordinance, confers a discretionary power on the Rent Controller, thus giving him the freedom to order or not to order the ejectment of a tenant, subject only to the condition that he does not act arbitrarily but proceeds to serve the ends of justice. It is fascinat ing to make an attempt to grasp the scope of such a power in theory and in practice; but before attempting to touch the subject I would like to refer to the argument of Mr. A. K. Brohi that the presence of the word `may' in the provision makes no difference at all because there is ample authority in favour of the proposition that the words "may" and "shall" are interchangeable; this is known to the draftsmen. They use those words against the back ground of that knowledge. It is only subsequently that the representatives of this or that point of view exercise their intellec tual strength to pull their meaning on this side or that side. He was right in referring to the existence of such authority as well as to the knowledge of the draftsmen as to its existence, but the interchangeability of those words does not level down their intrinsic meaning, nor does it reflect any redundancy of the English language, but arises only from the characteristics of the subject matter to which they refer. This distinction has been admirably well brought out by Cotton, L. J. In re: Baker, Nichols v. Baker (44 Ch. D 262), as follows:‑ "'May' never can mean `MUST' so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases, where a Judge has a power given him by the word `may', it becomes his duty to exercise that power." It is unfortunate that at a moment when the solution of the ambiguity appears to be within reach, it becomes elusive on further analysis; but this is bound to happen so long as language is incapable of transferring human thought with perfection. However that may be, it is not possible to hold that the presence of the word `may' with reference to the acceptance of ejectment applica tions and the word `shall' with reference to the rejection of ejectment applications makes no difference at all. The real point which calls for solution is: what is that difference"

9. Mr. A. K. Brohi has referred .to the judgment of the Supreme Court in M. M. Ispahani Limited v. Muhammad Sultan (P L D 1961 S C 76) which was delivered in a case that was instituted by a landlord to evict a tenant. Before filing that suit, the landlord had, in terms of the Sind Rent Restriction Act, to obtain a certificate from the Rent Controller. Several grounds for obtaining the certificate were urged on behalf of the landlord which were rejected by the Controller excepting the ground that the premises were required by the landlord for its own use. On this ground the Controller granted a certificate. The tenant filed a Revision Application against that order before the Chief Judge of the Karachi Small Causes Court, who introduced a condition in the certificate, on humanitarian considerations; in order to defer the ejectment of the tenant until certain arrangements were made. Before imposing the condition, the Chief Judge had passed through moments of doubt and indecision. The conflict which he experienced was between his conscience and strict legality. One gets a glimpse of how the two attractions fought in his mind in the following passage of his order which I reproduce from the above‑mentioned judgment of the Supreme Court;‑ "I agree with the remarks of the learned R. C. in his order that this is a case, difficult in its simplicity; and that both sides have a case generally strong or weak as one would wish to take it. There is to my mind substance in the argument that on the strictly legal aspect the respondent‑company have a strong case in their favour. It is also clear on a perusal of the record than the appellants' hands during the pendency of the matter before the R. C. have not been entirely clean nor their conduct above board in the sense that they are proved to have been aware of the notice of eviction when they bought over the premises from J. Tyler . . . . . . . The respondent firm is a vast business organization dealing in commodities of vital concern to Pakistan. Their interests in our country are far flung and are not confined solely to Karachi. On the other hand there is nothing to show that the appellants have any other means of livelihood except their automobile business on McLeod Road, housed in the building owned by the respondent. Purely on a humanitarian point of view ejecting the appellants from these premises would be literally driving them on the street, and although the continuance of the appel lants' concern in their building would inconvenience the respondents‑firm to some extent they cannot be said to be in any way vitally affected in their vast business by the continuance of the appellant's business in these premises, comprising of two halls on the ground floor. . . . . It is the policy of the Government as far as possible to help rehabilitate all who have migrated to Pakistan from the other dominion where they have lost all they had there. This is the case of the appellants. Their ejectment would definitely result in one more substantial case on the hands of the autho rities who would . . . . have to be re‑settled in some business or the other."

10. The above views were questioned by the landlord before the Chief Court of Sind in the suit for ejectment, as without jurisdiction. The criticism was accepted by a Single Bench of that Court, but was rejected by the Letters Patent Bench on the ground that, even if the views of the Chief Judge were erroneous, they were not without jurisdiction. The Supreme Court has held them, in the above‑mentioned judgment, to be without jurisdiction as follows:‑-- "What has happened is that he held in favour of the require ment for personal use by the landlord, but finding that the ejectment of the tenant would spell ruin for him, he passed an order on `humanitarian' ground in spite of the strict legal right of the landlord. In so doing he traveled beyond his jurisdiction which was a very limited one. The only jurisdiction he had was to certify a particular fact that is, whether the landlord required the premises for his own use. Once he reached a decision on this question his jurisdiction was exhausted, and in considering any further question he was exceeding his jurisdiction and acting beyond the scope of his authority. He did find in the earlier part of his judgment that the landlord had a genuine need, for he agreed with the Rent Controller as to the landlord's own genuine need of wishing to expend accom modation for his business'. He should have stopped there. But he went on to consider the effect of the ejectment on the business of the tenant. It is plain the effect of the ejectment on the business of the tenant is not a consideration within the scheme of the Rent Restriction Act and in referring to it and to the fact that the tenant was a refugee and his ejectment would mean one more case for the Rehabilitation Department the Chief Judge was travelling beyond the scope of the law under which he purported to act. In fact he was quite conscious of it, for as already pointed out, he found the "strictly legal aspect" against the tenant and he was granting relief to him only on humanitarian considerations. The conditional form in which he put the order is also evidence of the fact that he was passing the order not on the ground that the landlord did not need it but for the purpose of not depriving the tenant of his means of livelihood. In the end of his order he did say that the landlord had `no genuine and pressing need' but this was only an effort to comply with the form of the law, at least to some extent. Pressing need was not required by law and in favour of genuine need he had already given a finding. Another defect in the order is, that the Chief Judge assumed he could give directions as to when the tenant could or when he could not be evicted. He gave a direction that he should be liable to eviction if he acquired interest in other business or transferred this business to another person. The jurisdiction, the Chief Judge had was confined to the grant or refusal of a certificate as to the existence of a fact, and no further. A conditional order too could not be passed, for either the fact which he was to certify existed or did not exist. From this point of view also the order was not within his jurisdiction."

11. The above history of the litigation proves how ambiguous and uncertain a guide personal inclinations or uncontrolled discretion can be and how long it took before the Supreme Court pinpointed the paramountcy of strict legality. The above obser vations of the Supreme Court have been applied. in Muhammad Anis v. Chief Judge, Small Causes Court (P L D 1962 Kar. 613) by a Division Bench of this Court to the Karachi Rent Restriction Act, 1953, under which the landlord had to prove, for evicting a tenant, that the premises were reasonably and in good faith required by him. The learned Judge, have explained the scope of the authority of the Chief Judge of the Karachi Small Causes Court, as follows:‑- "In the present petition we have got to see whether the Tribunal namely, the Chief Judge, Karachi Small Causes Court, has acted beyond the scope of his authority and further whether his determination suffers. from an illegality or an error apparent on the face of the record so as to attract the writ jurisdiction of this Court for purposes of certiorari. In view of the pronouncement of their Lordships of the Supreme Court in the case of M. M. Ispahani Ltd. v. Muhammad Sultan, it cannot be questioned that having regard to the terms of section 15 of the Karachi Rent Restriction Act, the Chief Judge Small Causes Court for the purposes of satisfying himself as to the legality or propriety of the order of the Rent Controller was entitled to upset a finding of fact by the Rent Controller. In that case their Lordships were considering the validity of the order passed in revision, in which the Chief Judge had taken into considera tion the need of the tenant for refusing a certificate to the landlord. Their Lordships while holding that he was not entitled to do so observed as follows: The only jurisdiction he had was to certify a particular fact that is, whether the landlord required the premises for his own use. Once he reached a decision on this question his jurisdic tion was exhausted. In the present case there is no doubt that the Rent Controller in refusing to grant a certificate to the landlord had taken into consideration the need of the tenant inasmuch as his was a. large family and they had been occupying it for a long time and the learned Chief Judge, Small Causes Court was quite right in rejecting that consideration. What has to be determined under sub‑clause (2) (c) of section 10 is whether the premises are reasonably and in good faith required by the landlord for the purposes mentioned in the sub‑clause. With regard to the question of reconstruction the learned Rent Controller accepted the position that the landlords did want to reconstruct, but in the absence of any evidence that they were being ousted from the premises in their possession he rejected their claim for bona fide use of their own. He then went on to observe that if they really wanted to reconstruct they could do so upon the un built portion of the plot. He also took note of the fact that the landlords had not approached the K. D. A. for the demolition of the existing structure. The revisional authority did not consider these grounds as being valid for the purposes of the rejection of the application for a certificate. Therefore, when the matter came up before him in revision, upon the evidence on record he came to the conclusion that the need of the applicants for reconstruc tion was genuine and bona fide and they required the premises for their personal use. The only finding of the Rent Controller which the Chief Judge relied (upon) was with regard to the intention of the landlords to reconstruct. The fact that the respondents had purchased this property with the knowledge of its occupation by the petitioner cannot disentitle them from claiming the property 'for their own use provided they were able to satisfy the requirements of section 10." There are no visible pressures of personal inclinations or of social impulses in the above views that may be said to be resisting the direct sense of the law. The learned Judges have proceeded to reach as near the positive meaning of the law as was necessary for deciding that case.

12. Is that process of reasoning of any help in defining the difference between "may" and "shall" in the context of section 13 (2) (vi) of the West Pakistan Urban Rent Restric tion Ordinance, 1959? The reply of Mr. Muhammad Ali Sayeed was that it was not, because the conditions or requirements mentioned in clause (vi) did not control the absolute, bare or naked discretion that was conferred by the word "may" on the Rent Controller to reject an application for the eviction of a tenant in the interest of justice. This discretion, according to counsel, not only governs clause (vi) but on the same ground applies to clauses (i) to (v) which relate to the payment or tender of rent, sub‑letting or using the demised premises for other purposes than the purpose of the lease; materially impairing the value of the demised premises; causing nuisance and ceasing to occupy the rented building, without a reasonable cause. In other words, none of the conditions that are mentioned in the six clauses of subsection (2) of section 13 govern the discretion of the Rent Controller because the word "may" has been used after those conditions‑irrespective of them and in spite of them.

13. Mr. Brohi's reply was that confernment of such a naked, uncontrolled and unguided discretion could not have been intended but it is found to have been so intended by the Legisla ture, then such a discretion is hit by Fundamental Right No. 15 of the Constitution and the word "may" in this context must be constitutionally struck down because it destroys equality before law and empowers the Rent Controller to treat a tenant as he liked. There is ample authority in favour of this proposition. In this sense of the use of discretion the Rent Controller is not guided by any rule or principle but by his own unascertainable sense of equity and good conscience. Counsel said that such a dis cretionary power of the Rent Controller reminded him of Selden's celebrated raillery of the length .of the Chancellor's conscience serving as a measure of equity. I may add that we have seen in the above quotations that the Rent Controllers and the appellate authorities have been influenced by the considerations of the conduct of the parties, needs of extensive business, rehabilitation policies, length of the occupation of a premises by the tenant, other courses than eviction open to the landlord for finding redress and the knowledge of the landlord at the time of purchasing a property that it was occupied by tenants. A greater variety of considerations can be easily imagined as falling within the scope of a Rent Controller's personal sense of equity and good conscience. One can perhaps add that unguided sense of justice is scarcely more reliable than whim and caprice, if it is used without a well understood unambiguous philosophical system that must be behind it, to make the measure of justness predictable. Hans Kelsen has succeeded in demonstrating in support of his Pure Theory of Law that sense of "justice" in reality means the sense of satisfac tion that a given situation conforms to the desired state of affairs. He has observed in his book on "What is Justice" that:‑-- "There is not, and cannot be, on objective criterion of justice because the statement: something is just or unjust, is a judg ment of value referring to an ultimate end, and these value judgments are by their very nature subjective in character, because (they are) based on emotional elements of our mind, on our feelings and wishes. They cannot be verified by facts, as can (be) statements about reality. Ultimate value judgments are mostly acts of preference; they indicate what is better rather than what is good; they imply the choice between two conflict ing values, as for instance the choice between freedom and security. Whether a social system that guarantees individual freedom but no economic security is preferable to a social system that guarantees economic security but no individual freedom, depends on the decision whether freedom or security is the higher value . . . . . . . No objective verification of their respective value judgments is possible. And since men differ very much in their feelings, their ideas of justice are very different. This is the reason why in spite of the attempts made by the most illustrious thinkers of mankind to solve the problem of justice, there is not only no agreement but the most passionate antagonism in answering the question of what is just."

13. Wurzal has discussed in "Methods of Judicial Thinking" how a special manner of legal expressions has been developed such as: "we must assume as proved", "it appears to be without foundation", "we cannot justly doubt" with the object of rendering the "difference between the real degrees of probability and the cogency of the inference drawn, as inconspicuous as possible". I may venture to state, with all the respect which I can express, that those who say that the word "may" confers absolute power but qualify it by adding that such a power is meant to be used for serving the ends of justice, in reality, place apparent limits on the power only to conceal the weaknesses of their reasoning which, logically speaking, leaves the goal undefined, excepting in those instances in which the governing principles are already known. They cannot be known if they spring from the individual's personal whims or prejudices and, in spite of the investigations that have been made in that direction, they are unknown able with any certainty with the present knowledge of and efficiency in psycho‑analysis. Justice is not a matter of temperament, although temperament imperceptibly plays a part in it, but a reflection of the good conscience of the society. If ‑a view that satisfies a particular Tribunal or Judge does not conform to the good conscience of a society then for that society it is not the just view. But so long as it is the exclusive function of the Legislature to represent the conscience of society by dis covering or creating the guiding principles of law and justice the Courts‑ can only interpret them. The Judges must be knowledge able and not whimsical men to be able to soundly interpret law because they have to get over the flaws of human language, which is the vehicle of legislative thought, as well as to get over the inevitable imperfections of legislative comprehensiveness. Professor Dennis Lloyd has pointedly observed in his book called "Introduction to Jurisprudence" that:‑-- "On the whole those lawyers who are not conscious of their legal ideology are apt to do more harm than their more conscious colleagues. For their self‑delusion makes it psycho logically easier for them to mould the law in accordance with their beliefs or prejudices without feeling the weight of the responsibility that burdens lawyers with greater consciousness of the issues at stake." The immediately valuable principles to guide the Rent Controller in this case are the conditions stated in clause (vi) of subsection (2) D of section 13 of the Ordinance and the ultimate principles, wherever relevant to provide guidance, are contained in our

14. Let me mention here that the manner of the emphasis of Mr. Muhammad Ali Sayeed on the word "may" nullifies the condition's that are contained in the six clauses of subsection (2) with respect to the acceptance of ejectment‑applications, but not with respect to their dismissal because the word which has been used with respect to the rejection of such applications is "shall". In other words, all the considerations set out in the six clauses of subsection (2) of section 13 are meaningful for half of the purpose of the subsection but are of no consequence with respect to the other half. If this is the argument, then it is difficult to attribute such "prolix redundancy" of words to the Legislature.

15. An important aspect of Mr. Muhammad Ali Sayeed's arguments was that the tenants were the weaker party as compared to the landlords. In this case, they should be protected because their huge investments, peaceful pursuance of avocation, and future prospects are exposed to immediate danger owing to the lust of the landlords for more money. His attempt to convey the sense of the tenants' distress compelled me to enquire from him as to what was the philosophy behind his point of view. If he was supporting the socialist depreciation of landed or immovable private property, then there was little to choose between these landlords and tenants because both the groups are of capitalists. The lacs of rupees of the tenants are as sacred or profane as those of the landlords. There is basically little reason to treat the lacs of rupees of the tenants which are already invested to be more valuable than the lacs of the landlords' which are said to be waiting to be invested. One cannot gainsay that the laws of our country recognise private property and respect that right. See for instance the Fundamental Rights Nos. 13 and 14 of our Consti tution. In this pattern of things, it will be wrong to conduct judicial proceedings so as to disapprove of investments.

16. In a society in which reliance is placed on private enterprise for providing accommodation to the public, control of existing accommodation is justified to check the malpractices of the owners of accommodation and to keep the market of tenant able property in hand, but not to attempt to eliminate or even to discourage private ownership and private capital. If the investment of private capital is frowned at in a society in which reliance is placed on private capital to private accommodation, then the inadequate sum total of available accommodation will never become ample and the market of tenantable property will never become easy. The purpose of control is not to perpetuate scarcity.

17. If the above views are correct, then, in the first place, the discretion that has been conferred on the Rent Controller by the word `may' is not so vast as to permit the violation of the evident ideology of our society and to allow transgression of the limits set by it. Such transgression was possible if there was no limit whatsoever on the Rent Controller's discretion, but nobody can reasonably' contend that there are no limits to it. On the contrary, counsel for the parties in this appeal entertain no doubt that the Rent Controller cannot exercise `his discretion whimsically, capriciously or arbitrarily'. This is a recognition of some of the negative limits of his discretion. The positive limits can be and ought to be perceived through the terms and conditions of clause (iv) of subsection (2) of section 13, which have been reinforced by the penalties that are provided in subsections (5) and (6) of section 13 as a check on the misuse of clause (vi).

18. In terms of clause (vi), there are only three conditions to be satisfied by the landlord if he desires to evict a tenant. They are that he should prove that he intends to demolish the demised building, for reconstructing a new one on the same site, and that he has procured the sanction of the relevant authority to do so. G If he does not satisfy those conditions, his application "shall" be rejected, but if he satisfies them then it "may" be accepted. There is a discretion of the Rent Controller as to the acceptance only of that application. This discretion, according to the views that I have expressed above, cannot be wider than weighing against the landlord the dubiousness or defect, if any, of the intention or, sanction. To this extent the provision favours the tenant, but it would amount to boundlessly enlarging‑the scope of the discre tion if it is taken as extending to the limits of an individual's private sense of justice, equity and good conscience. The Rent Controller is not to play the part of a humanitarian nor that of a socialists nor is he to turn his back upon the ideology or principles of the existing law by using expressions that conceal his deviations of thought.

19. Professor Beale has pointed out in his great "Treatise on the Conflict of Laws" that the law to be uniform must not only be taken to consist of statutes and rules but also of "the general body of principles accepted as the fundamental principles of (a) juris prudence". "Law, therefore, is made in part by the Legislature, 'in part it rests upon precedent, and in great part it consists in a homogeneous, scientific and all‑embracing body of principle". This body of the principle of law constitutes its "philosophical system" and assures its distinct and identifiable continuity with the movement of time.

20. I take the liberty of relying on that "system" for under standing the connotation of the unqualified word "may" and venture to suggest that in our system of law, which has a Constitution and a chapter in that Constitution on the "Funda mental Rights and Principles of Policy", the basic principles must be derived from the Constitution and the secondary principles should be perceived through the help of the statutes and statutory rules because the superior norm of the law is contained in the Constitution and the inferior in the statutes and rules. The superior norm constitutes the system of philosophy which is the final guide for removing the ambiguities of statutes, and just as statutes are the final guide for removing the ambiguities of subordinate legislation. They provide the content of words like "may" and of the phrases like "ends of justice", and "judicial exercise of discretion". Without that content such words and phrases beg the question.

21. The overall conclusion is that the ideology of our law, neither disapproves of private property, nor of the investment of capital. The control of capital is envisaged by Fundamental Right No. 13 in the interest of the public only; therefore, it is unconsti tutional to impose other restrictions on it in the name of humanism or of equality. There is no justice, equity and good conscience N in terms of out system of law if it does not conform to these superior norms. The inferior norms are provided by the Ordinance itself. Any dictates of justice, equity or good conscience that are different are apart from those norms ate an illusion and cannot be sustained by the word "may". I am accordingly unable to interfere with the decision that is under appeal of the learned District Judge and dismiss these second appeals with costs.

22. The above conclusion was announced on the 15th of January 1965, at the conclusion of the arguments of counsel for the parties. K.B.A. Appeals dismissed.