P L D 1967 Lahore 718 (PLP)

(1) Does the petitioner bona fide require the property for reconstruction? He found the issue against the landlord and dismissed the application by his order dated the 30th of September 1963.

4. The landlord went in appeal against this order which was similarly dismissed by the order dated the 21st of May 1964. Hence this second appeal.

5. Learned counsel for the appellant has contended before me that the finding of the Appellate Authority that the appel lant had failed to prove that he had obtained necessary sanction from tile Municipal Corporation to reconstruct the property had not been established was untenable. The reasoning adopted be the learned Appellate Authority is that the only evidence to prove the contention was the statement of the appellant who had also produced the sanctioned plan received by him from the Municipal Corporation but had not taken the further step of having the plan and the endorsement thereon properly proved by producing an official of the Corporation. The question is whether this document has been properly proved.

6. In the present case, no person has been produced who could prove the document under the law. The document is admittedly not a copy but an original. The question would be whether even if it is a copy, can it be said to have been properly proved by its mere production. From it follows the further question whether the document of which it is a copy is a public document or not. Section 74 of the Evidence Act defines public documents. The present document is not covered by any of the categories mentioned in that section because it neither forms the act or record of the act of (1) the sovereign authority (2) official bodies or tribunals, or (3) public officers, legislative, judicial or executive. A copy of it certified under section 76 of the Evidence Act could, therefore, not be produced in proof of its contents under section

77. This would have been the position but for the reasons that follow. Article 96 of the Basic Democracies Order provides that all records prepared or registers maintained under that Order shall be deemed to be public documents within the meaning of the Evidence Act and further that they shall be presumed to be genuine until the contrary is proved. Section 127 of the Muni cipal Administration Ordinance, 1960, makes this Article mutati mutandis applicable to Municipal Committees as if the said provisions had been enacted in this Ordinance. By virtue of the provisions of these two laws a register maintained by the Municipal Corporation of Lahore wherein a record of building plans sanctioned by it is maintained would be a public document and a certified copy of it could be produced in proof thereof. No such document has been produced in this case at all.

6. I would even go to the extent of saying that the plan sanctioned by the Municipal Corporation is also a public document since it is a record prepared under the Municipal Administration Ordinance, as is clear from section 77(5) of the Ordinance which runs as follow:‑ "A Municipal Committee may sanction a site plan or a building plan subject to such modifications or terms as may be specified in the order of sanction." The sanctioned site or building plan has, therefore, to be retained by the Municipal Committee as a matter of record for future reference and for taking action under section 78, if necessary. A copy of this document is always available from the Municipal Corporation on payment of the requisite fees.

7. Be that as it may, the fact remains that the document brought before the Rent Controller has not been proved in accordance with law.

8. It was contended before me that the Municipal Corpora tion was not an official body at all since section 8 of the Ordinance describes it as a body corporate. This is wholly irrelevant because whether it is an official body or not, its records have been declared to be public documents under the law, referred to above.

9. The learned Appellate Authority, therefore, acted in accordance with law in coming to the conclusion that the sanction of the plan by the Municipal Corporation had not been proved.

10. Learned counsel for the appellant produced before me the application in original which had been made to the learned Rent Controller on the 30th of April 1963, for summoning the Building Inspector and the Record Keeper of the Municipal Corporation, Lahore. This application was rejected by the learned Rent Controller on the 2nd of May 1963, on the ground "no need". This application was returned in original to the applicant for reasons best known to the office of the Rent Controller. I have obtained the original from the learned counsel and have placed it on the record because it is a part of the record of the case and should not be returned. The applicant was prevented from proving the necessary sanction before the I learned Rent Controller by the order of the latter and since an act of Court can prejudice no body the applicant cannot be penalised for it.

11. The next contention is that ejectment on the ground that a landlord wishes to reconstruct a building can be ordered only if it is proved that the property is‑ "reasonably and in good faith required" by the landlord for reconstruction. It was contended that the learned Appellate Authority failed to give any finding regarding the bona fides of the landlord in this respect. Before its amendment by section 5 of Ordinance XXI of 1965, the opening E. words of section 13(2)(vi) run as follows:‑ "The landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction for the said construction . . . . . It would, therefore, fall for decision whether the amendment of this section whereby the words "the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site" were substituted, shall be attracted to the present case although it was enacted during the pendency of the case. The amendment of the section does not have retrospective effect and since it affects the substantive right of the landlord to eject a tenant, the amendment cannot be given retrospective effect in the absence of clear words or necessary intendment to the contrary.

12. I, therefore, agree with the learned counsel for the appel lant that such a finding was not, at all, necessary in this case.

13. In view of what has been said above, the case is remanded to the learned Rent Controller for enabling the appel lant to produce evidence to prove that he has obtained necessary sanction for reconstruction of the building from the Municipal Corporation.

14. The appeal is accepted. Costs shall be costs in the cause. A. H. Appeal accepted.