P L D 1961 Supreme Court 76 (PLP)

(ii) for his own use or for the use of any person for whose benefit the premises are held, or (d) that the tenant has infringed any conditions of the tenure on which the premises are held by the landlord. (3) Where a landlord has got back possession of any premises from a tenant on the ground that they were reasonably and in good faith required by the landlord for the erection or re-construction of a building or for his own occupation or for the occupation of any person for whose benefit the premises the other person aforesaid within fifteen days of the vacation of the premises by the original tenant, or having been so occupied are re-let within two months of the said date to any person other than the original tenant, the Controller may, on the application of the original tenant made within three months of his vacating the premises direct the landlord to place the original tenant in possession of the premises on the original terms and conditions and to pay him such compensation as may be fixed by the Controller. (4) When the Controller directs under subsection (3) that the landlord should pay compensation to the tenant the Controller may recover the amount of such compensation as an arrear of land revenue and may, for the purpose of such recovery, exercise all or any of the powers conferred upon a Collector under Chapter XI of the Bombay Land Revenue Code, 1879. (5) Nothing in subsection (1) shall apply in the case of any premises- (a) which being situated within the limits of a municipality or a notified area committee have been specially certified for the purpose of this Act to be in a ruinous or dangerous condition- (i) in the case of premises situated within the municipal limits of the City of Karachi, by the Chief Officer of the Corporation, (ii) in the case of premises situated elsewhere, by the municipality or the notified area committee, as the case may be, or (b) which, being situated in a cantonment, have been so certified to be in an insanitary state or unfit for human habitation by the cantonment authority, and (c) in respect of which notice has been issued under section 190 of the City of Karachi Municipal Act, 1933, or under section 149 of the Bombay Municipal Boroughs Act, 1925, or under section 119 of the Bombay District Municipal Act, 1901, or under section 140 or 142 of the Cantonments Act, 1924. S. 15. (1) When the Controller receives intimation under section 13 or section 14 or otherwise receives information that any residential premises are vacant or about to become vacant, he may direct the landlord to let the premises when they become vacant or, if the premises are vacant, the vacant premises to a person or persons specified in such direction. (2) Every such direction shall be served upon the landlord in the manner prescribed by rules made under this Act. On such service being effected, the landlord shall comply with such direction Provided that no such direction which has been served upon a landlord after more than ten days of the receipt of intimation sent under section 13, shall have any effect. (3) Every tenant who fails. to deliver possession to the person or persons specified in the direction issued under subsection (1) shall be liable to be summarily evicted. S. 20. (I) The Provincial Government may on an application to be made within seven days of any order made by the Collector under this Act call for the relevant record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the proceedings, if any, in which the order was made, and may pass such order thereon as it deems fit and may stay the order of eviction under section 15 of the Act pending the hearing and disposal of the matter. S.

22. An order made by the Provincial Government under section 20 and, subject to the provisions of that section, an order of the Controller or the Collector shall be final and shall not be called in question in any Court." It may be mentioned that an appeal against the order of the Rent Controller had been provided by section 19 of the Act, but this section was deleted by Act XXVI of 1948. We take up first the contention that the allotment order was void. This contention is based on two grounds (i) that the order was passed without notice to the appellant, and (ii) that the order was not served as required by section

15. With regard to the first ground it has been admitted on behalf of the respondents that the order had in fact been passed without notice, their plea being that notice was unnecessary. On a consideration of the relevant Provisions of the Sind? Rent Restriction Act it appears to us that the Rent Controller was not bound to issue any notice before making an order under section

15. It will be observed that the order has to be passed when the premises are vacant or are about to become vacant. Obviously, speedy action has to be taken before the premises are occupied and a notice to the landlord before the order is made is impracticable. The interests of the landlord have been sufficiently protected by the grant of a right of revision. It is to be noted that section 15 provides for the service of the order on the landlord. This is a strong indication of the fact that the omission to provide for a notice before the order is made, is deliberate. The provision that the order should be served on the landlord also suggests that the order is made behind the back of the landlord. Had the intention been that the order should be made only after an opportunity to the landlord to show cause there is no reason why this should not have been expressly provided. Reliance was placed on behalf of the appellant of Chief Commissioner Karachi and another v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45), wherein it had been laid down that an order affecting the liberty or property of a person should not be passed without an opportunity of hearing. That case does not lay down at what particular stage the opportunity is to be granted. What is required is a reasonable opportunity of hearing and under the circumstances and opportunity granted at the stage of revision is quite reasonable. On account of the fact that speedy action has to be taken opportunity for hearing cannot be given in a case like the present at the time the order is made, and if it is granted at a later stage the principle of natural justice that no order affecting a person shall be made without an opportunity of being heard is not contravened. In any case, the intention of the Legislature is in the circumstances quite clear that no notice was required at the stage of making the order. The objection as to want of service of (order does not deserve serious consideration. It was not argued at all before the High Court. The respondents do not accept that the notice of the order was not served on the appellant. They contend that such notice had been served on the appellant by some person acting on behalf of Haji Muhammad Sultan and that such service was valid, for the method of service of notice had not been provided for in the Sind Rent Restriction Act and was to be provided for by rules, and no rules had as yet been framed, but according to the practice of the Rent Controller it was the tenant who served the notice under section 15 on the landlord. A service by the tenant may, under the circumstances, have been in accordance with law. Also the appellant had admittedly come to know of the order on the 7th of December 1948. The appellant accepted the order, for the appellant filed no appeal against it and, on the other hand, applied to the Rent Controller for a certificate under section

9. We take up next the question as to whether Haji Muhammad Sultan had a personal right of occupation or an interest which passed to his heirs on his death. The contention on behalf of the appellant is that a statutory tenant has not the interest of an ordinary tenant but has a personal right of occupation till death. Reliance is placed on Rent Acts by R. E. Megarry at pp. 197-198, where commenting on the nature of a statutory tenancy the learned author says "It has been said `time and time again' that `the statutory tenant has no estate or property as tenant at all, but has a purely personal right to retain possession of the property?. The tenancy has been called 'nothing more than a status of irremovability', or 'a permanency of tenure'; and it has been said that the tenant, who has been described with some degree of vituperation, is 'not a tenant at all in the sense that he has an estate. He has . . . . a merely personal right of occupation'. The convenient but inaccurate term 'statutory tenancy' is thus a misnomer ; it is 'a somewhat inapposite expression, for it confers on the so-called statutory tenant no, estate or interest in the land', and is merely 'a compendious expression to describe the right of a tenant of protected premises to remain in possession of those premises, notwithstanding the determination of his contractual interest'. Thus if he purports to sub-let, he confers no estate on the sub-tenant, for 'he cannot carve something out of nothing' though such sub-tenancies may themselves be protected by the Acts. And if a statutory tenant sues for possession of the premises, his claim is to the premises and not merely to a statutory tenancy thereof ; thus for the purpose of a statute limiting appeals unless 'property or some civil right' of a certain value is involved, it is the premises (including any buildings erected thereon by the tenant) and not the statutory tenancy which must be valued. Further, the matter must be regarded from the point of view of the appellants, so that on a landlord's appeal in possession case, what must be valued is the property claimed, free from the tenancy." This paragraph refers only to the case of a tenant who continues in possession of the premises after the termination of his lease. Whether what is stated in this paragraph correctly represents the position of such a person even under the Sind Rent Restriction Act is not a matter which we are called upon to decide, but surely this statement cannot be of much help in determining the rights of a person who holds an order of allotment in his favour under section

15. Nor will a reference to the position of a statutory tenant under other Acts be of any great use in deciding such rights which must be determined on a consideration of the relevant provisions of this Act. Under section 15 the Rent Controller "directs the landlord to let the premises to the person named". If the landlord obeys this direction the result would be that he would if the law regards it as necessary execute a lease deed in favour of the tenant, and if the law does not so require he would make an oral lease and deliver possession of the premises to the tenant. The effect of the act of the landlord would be the same as it would be if he had let the premises to the tenant of his own accord. That is the plain meaning of the words used in this section. The only difference. between the case of an ordinary tenant and that of a tenant under section 15 would be that while in the one case the landlord creates a lease by virtue of a free contract, in the other case he does so in obedience to a direction given by the Rent Controller. This construction is supported also by the definition of "tenant" which includes a person who derive title through a tenant. It would be pertinent to state here that if the landlord did not obey the direction of the Rent Controller the result as regards rights of parties would be the same as if he had obeyed it for he cannot profit by his default. Wet would therefore hold in agreement with the learned Judges of the High Court that Haji Muhammad Sultan had the ordinary interest of a tenant in the premises which passed to his heirs on his death. We come now to a third contention, namely that the order of the Chief Judge was void in law. According to section 22 of the Sind Rent Restriction Act an order made by the Chief Judge under section 20 is final and cannot be called in question in any Court. The appellant can succeed therefore only if it is shown that 'the order was void and without jurisdiction. The order is attacked on the ground that the only jurisdiction granted to the Rent Controller and to the Chief Judge was to grant a certificate that the premises were required by the landlord for his own use, that the Chief Judge did in fact reach this finding but he went on to consider the effect of the ejectment of the tenant on his business and Having reached a conclusion that his business would suffer by ejectment he refused to grant a certificate. He based his decision on a ground which is wholly irrele. vant and not contemplated by the Sind Rent Restriction Act and therefore his order was without jurisdiction. It will be convenient before proceeding further to reproduce the relevant portions of the order of the Chief Judge. He says "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 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 that the appellant's 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. On the other hand the R. C. concluded and rightly in my opinion that the opponent had failed to establish before him any other ground for ejectment e.g. nuisance caused by the spray and smoke from the workshop of the appellants, except their own genuine need of wishing to expand accommodation for their business. He opined further that appellant in rebuttal of the case of the respondent had failed to establish any point except that their personal need and interest. The respondent firm is a vast business organisation dealing with 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 appellant's concern in their building would inconvenience 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. Ejectment of the appellants would therefore operate very harshly against the appellants. It is the policy of the Government as far as possible to help to rehabilitate all who have migrated to Pakistan from the other dominion where they have lost all they bad there. This is the case of the appellants. Their ejectment would definitely result in one more substantial case on the hands of the authorities who would in (torn) have to be resettled in some business or the other. In my opinion therefore no case has been made out on behalf of the respondents for a genuine and/or pressing need of the premises occupied by the appellants and therefore no cause for a grant of a certificate for ejectment against the appellant. In justice to the respondent firm order that if the appellant invest in any other business or it can be proved that they have (torn) interest with a reasonable return in a business other than (torn). Road running in the name of J. Tyler & Co. or if in the future (torn) or transfer the business to anyone else, respondents should (torn) the immediate possession of these premises and ejectment (torn) person or firm taking over from the appellants personally." The learned Judges of the High Court held the order of the Chief Judge to be with jurisdiction on an argument which may be summed up thus : "The Chief Judge had jurisdiction to decide whether the premises were reasonably and in good faith required by the landlord for his own use. Although he did not express himself happily, he did decide that the premises were "not reasonably and in good faith required by the landlord" because he found that "no case had been made out for a genuine and pressing need" of the premises. His decision was at most an erroneous decision, for he had jurisdiction to decide the question whether the premises was reasonably and in good faith required, and if while deciding this question he misinterpreted a provision of law his order would only be erroneous and not without jurisdiction. Under section 20 his order cannot be called in question in any Court unless it was without jurisdiction." That the decision of the Tribunal acting within the scope of its authority will not be without jurisdiction merely because it is erroneous is not a questionable proposition, but it appears clear p to us the Chief Judge (whose authority is the same as that of the Rent Controller) was not acting within the scope of his authority. We are not in agreement with the learned Judges in their interpretation of the order of the Chief Judge. The Chief Judge did not hold that a consideration of the effect of ejectment on the business of the tenant, or a consideration of the extent of inconvenience that would be caused to the landlord were matters relevant for the purpose of deciding whether the landlord required the premises reasonably and in good faith for his own use, and that after a consideration of such matters he came to the conclusion that the premises were not so required. His order is not based on a misinterpretation of the words `reasonably and in good faith required for his own use'. This is clear from the fact that he found the case of the landlord strong on the strictly legal aspect What has happened is that he held in favour of the requirement 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 travelled 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 the landlord's "own genuine need of wishing to expand accommodation 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 that 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 effect 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 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. Learned counsel for the respondents in order to justify the order of the Chief Judge contended that although the Rent Controller could refuse a certificate only if the premises were not found to be required by the landlord for his personal use the revising authority was entitled to rest its order on any ground that it deemed proper and therefore the refusal of the Chief Judge to grant a certificate even on the ground that the business of the tenant would suffer heavily was justified in law. The sole argument put forward in support of this contention is that according to section 20 of the Sind Rent Restriction Act the revising authority is to satisfy not only as to the legality of the order but also as to its propriety which means that it is entitled to consider whether the grant of certificate would under the circumstances be proper. It is a very extraordinary proposition to put forward that the law which governs the rights of parties to relief changes as we go from the original to the revisional tribunal and surely the reference to "propriety" in section 20 is too slender a basis for such an argument. The conception of an appellate or revisional authority is that it examines the original order for determining whether it ought to have been passed in accordance with the law that was applicable and even though in some exceptional cases an order may be passed by the revisional authority in view of some facts which had occurred after the original order was passed, it is not empowered to pass an order on any ground on the basis of which the original Court could not have proceeded. The words "for the purpose of satisfying itself of the legality or propriety of the order" are of common occurrence in provisions relating to revisional jurisdiction where such jurisdiction is not confined to illegality or irregularity. Reference may be made in this connection to section 439 of the Criminal Procedure Code where similar words are used. The word propriety in this context has reference to the propriety of the order in the light of the law which was applicable, and is not intended to grant general and unlimited jurisdiction to the revising authority to set aside the order on any ground whatsoever; for that is what the contention put forward on behalf of the respondents implies. It is urged that the words "propriety" in section 20 would be unnecessary if the revisional authority had no discretion to refuse relief in case the need for personal use existed. In the first place, section 20 is a general section and applies to all orders passed under the Rent Restriction Act and, in the second place, if the word propriety, did not exist there would be no jurisdiction in the revisional authority to upset a finding of fact as to the existence of need for personal use which finding was not vitiated in law. The obvious intention of the Legislature was that the revisional authority should be entitled even to upset a finding of fact. We hold that the order of the Chief Judge was without jurisdiction and the result would be that the order of the Rent Controller would stand and the present suit for ejectment would be competent. It may be mentioned here though this was not urged on behalf of the respondents that on the date when the Rent Controller granted a certificate the sale in favour of the appellant had not yet been confirmed by the Custodian and the appellant was not as yet the owner of the premises, but in the circumstances of the present case this fact would not invalidate the order of the Rent Controller. When the appellant purchased the premises it did become the owner because on that datethere was no evacuee law in force. When Ordinance XV of 1949 came into force with retrospective effect the sale in favour of the appellant was rendered ineffective till it was confirmed by the Custodian, but according to section 16 of the Pakistan (Administration of Evacuee Property) Act, 1957, which governs such transactions it is only the effectiveness of the transaction which was suspended and otherwise the transactions continued to exist. When the Custodian confirmed the sale it was validated from the date on h which it took place. The certificate would therefore on this view remain in abeyance till confirmation by the Custodian, and if the sale was confirmed the landlord would be entitled to avail of it. At the same time, `owner' and `landlord' are not synonymous terms. The Rent Controller bad addressed the order of allotment to the appellant, who was the owner at that time. It was the appellant who had been directed to let the premises to Haji Muhammad Sultan. The right of Haji Muhammad Sultan as tenant was derived from the appellant and a relationship of landlord and tenant had been created between them which may have been suspended in 1949, when Ordinance XV of 1949, came into force but which remained suspended only till confirmation. In fact, the status of the appellant as landlord has not been challenged before us by the respondents. Another contention on behalf of the respondents is that if the order of the Chief Judge was without jurisdiction then the application in revision should be regarded as pending and the present suit should not be decided till fresh orders in revision are passed by the Chief Judge. We are not inclined to agree because the Chief Judge had already reached finding that the premises were required by the appellant for its own use, and his order in substance though not in form confirms the certificate granted by the Rent Controller. As a result, this appeal succeeds. The decree of the Letters Patent Bench of the High Court is set aside and that of the learned Single Judge of the Chief Court of Sind restored. The parties will bear their own costs in this court as well as in the appeal before the Letter Patent Bench. Appeal accepted.