P L D 1992 Federal Shariat Court 286 (PLP)

IBADAT YAR KHAN, J.‑‑‑This petition was filed on 21‑11‑1985. It was registered as Shariat Petition No. 5/1 of 1985 and came‑ up for hearing on 8‑1‑1986. It was admitted to regular hearing with the following observations:‑‑ 'The question whether the tenants in the cantonments are entitled to equal treatment can be answered only if it is shown that the relevant provision in the Provincial Statutes are also not repugnant to the Injunctions of Islam."

2. The petitioner has challenged the provisions of section17(2) clause (vi) of the Cantonments Rent Restriction Act, 1963. The basis of his grievance is that this section does not provide that after reconstruction of an old building the tenant of an old building or a portion thereof should be provided accommodation in newly constructed building to the extent that was previously occupied by the tenant. The petitioner has referred to a similar provision in the West Pakistan Urban Rent Restriction Ordinance, 1959, in which provisions have been made that the tenant would be "put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation." The petitioner contends that section 17(2)(vi) is discriminatory and being discriminatory is repugnant to the Injunctions of Islam. For the purposes of convenience both provisions are reproduced below:‑‑ Section 17(2)(vi) of Cantonment Rent Restriction Act, 1963. Section 13(2)(vi)(5‑B) of West Pakistan Urban Rent Restriction Ordinance, 1959. "17(2). A landlord who seeks to?????????? evict his tenant shall apply to the??????????? Controller for an order in that??????????????? behalf, and the Controller may?? after giving the tenant a reasonable??????? opportunity of showing cause??????????????? against the application, make an??????????? order directing the tenant to put the landlord in possession, if he is????????? satisfied that:‑‑ "13(2). A landlord . who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that‑ ?? ...???????? ....??????? ...???????? ...???????? ...???????? ...???????? ...???????? ...???????? ...???????? ...???????? ...???????? ...???????? ... (vi) The landlord intends to demolish the building for??????????? constructing a new building??????? on the same site and has??????????? already obtained the????????????????? necessary sanction for such?????? construction from the??????????????? Cantonment Board;????????????????? (vi) 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, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated; . . ... ... ... ... ... ... ... ... ... ... ... ... (5‑B) Where, in pursuance of an order under clause (vi) of subsection (2), a landlord has obtained possession of a building, (in this subsection referred to the old building), and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be "put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation", and the Controller shall make an order accordingly in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality. ???????????????????????

3. We have in a very detailed judgment dealing with three Shariat Petitions No. 60/I of 1990, 71/I of 1990 and 9/L of 1990 examined in detail credibility of the two statutes namely, West Pakistan Urban Rent Restriction Ordinance, 1959 and Sindh Rented Premises Ordinance, 1979, in the light of the Injunctions of Islam and held that the very idea of interfering with the rights of the owners in their immovable properties in normal conditions is repugnant to the Injunctions of Islam.

4. The broad question is whether any such order can be passed and enforced against the will of the landlord who has constructed new building on the land after demolishing the old building.

5. This question has been answered by the petitioner himself in clause (e) of the grounds of his petition. At page 6 the petitioner has stated as follows:‑‑ "That the provisions of section 17(2)(vi) ibid are also opposed to the principles of Ad'1 which prohibits one party over‑reaching the other. It is the contract of lease/Aq'd Ijara? which shall ‑determine the rights and liabilities of the contracting parties. A law, which takes away something from the rights of a contracting party to the advantage of the other contracting party, is opposed to the principles of Ad'

1. It is also submitted that this principle enjoins to maintain a mean between the rights and liabilities of the contracting parties. No onerous condition can be imposed upon a contracting party to the advantage of the other, more so, when such a term was absent from the contract:"

6. How true it is that "no onerous condition can be imposed on one contracting party to the advantage of the other. More so when a term is absent from the contract". In plain words if there was no such stipulation or understanding or assurance by the landlord to the tenant in the contract of tenancy how can it be imported now specially when the subject‑matter of Ijarah itself has disappeared. If there was any such stipulation in the contract of tenancy the case would be different and the contract should have to be enforced not‑by giving powers to the Rent Controller but under the Act which provides relief for specific performance of the contract. This petition is, therefore, misconceived and must be dismissed.

7. It may be mentioned in the end that during the hearing of the petitions disposed of by our judgment mentioned above, neither the petitioner nor his. Advocate had turned up. Casually a question whether such a provision providing for alternate accommodation in the newly‑constructed building can be in accord with Sharia, was raised and the juris consults, who were addressing us on the other laws, were unanimous that when the basis of Ijarah itself had disappeared no such order can be passed because that would amount to making a new contract. (Sd.) (Ibadat Yar Khan, J) Subject to my separate note. (Sd.) (Tanzil‑ur‑Rahman, CJ) Subject to my separate note on the main Judgment (Sd.) (Fida Muhammad Khan, J.) Subject to my separate note on main Judgment. (Sd.) (Razzak A. Thahim, J.) IBADAT YAR KHAN, J.‑‑This bunch of Shariat Petitions relate to a very controversial subject. The grievance raised in these petitions echoes in the Court rooms of the country from one end of the country to the other. It can be safely said that no other legislation in the country has caused so much social disorder. None other has created so much bad blood between the sections of the society and perhaps none has bred so much litigation and caused so much acrimony and bitterness as the statute under scrutiny. The pendency of the ejectment applications being tried as regular suits and the appeals arising out of the decisions of the Courts called "Rent Controller" would be enough to show how much public time and energy is consumed in these cases all on the pretext of regulating and controlling the relationship between the landlords and tenants. The statutes challenged in these petitions are known as West Pakistan Urban Rent Restriction Ordinance, 1959 and Sindh Rented Premises Ordinance, 1979. These two statutes carrying different labels are identical. The former consists of 20 and latter 25 sections. As a matter of fact the spirit and substance of both these statutes is the same. The material sections in the West Pakistan Urban Rent Restriction Ordinance, 1959, are sections 4 and 13 while the material sections in the Sindh Rented Premises Ordinance, 1979 are sections 8, 9 and

13. These two provisions relate to determination of "fair rent" of the premises by the Rent Controller and restraint on the right of landlord to acquire possession of the premises let out to a tenant. This judgment would dispose of Shariat Petitions Nos. 60/I of 1990, 71/1 of 1990 and 9/L of 1990. In all the three the above noted sections have been challenged.

2. At this stage it would be helpful to reproduce these provisions below:‑‑‑ West Pakistan Urban Rent Restriction Ordinance. 1959. "

4. DETERMINATION OF FAIR RENT.‑‑(1) The Controller shall, on application by the tenant or landlord of a building or rented land, fix the fair rent for such building or rented land after holding such inquiry as the Controller thinks fit. (2) The fair rent shall be 'fixed after taking into consideration the following factors:‑‑‑ (a) in the case of a building which was in existence before the 1st of January, 1950, the rent of the same or a similar accommodation in similar circumstances prevailing in the locality during the twelve months prior to the 1st of January 1950; (b) in the case of a building which was constructed after the 1st of January 1950, and before the date of coming into force of this Ordinance, the rent at which such building is let out for the first time after its erection, and the rent of similar accommodation in similar circumstances prevailing in the locality during the twelve months prior to the erection of that building; (c) the rental value of the building or rented land if entered in the Property Tax Assessment Register of a municipal corporation, a municipality, a municipal committee, a town committee or a notified area committee, as the case may be, relating to the period mentioned in clause (a) or (b). (3) In fixing the fair rent of a building, the Controller shall take into consideration the rise in the cost of construction and of the repairing charges as well as the imposition of new taxes since the 1st of January, 1950. (4) Nothing in this section shall be deemed to entitle the Controller to fix the fair rent of a building or rented land at an amount less than the rent payable for such building or rented land under a subsisting lease entered into before the 1st day of January 1950. (5) Nothing in this section shall apply to the rent of any building constructed after the date of coming into force of this Ordinance or empower the Controller to fix the fair rent of any such building".

13. EVICTION OF TENANT‑‑(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that‑‑ (i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement within 60 days from the period for which the rent is payable; or (ii) the tenant has, without the written consent of the landlord,‑‑‑ . (a) transferred his right under the lease or sub‑let the entire building or rented land or any portion thereof; or (b) used the building or rented land for a purpose other than that for which it was leased or has infringed any condition of the tenure on which the building or rented land is held by the landlord; or (iii) the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or (iv) the tenant has been guilty of such acts and conduct as are a nuisance to the occupants of buildings in the neighbourhood; or (v) where the building is situated in a place other than. a hill‑station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause; or (vi) 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, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated: the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not satisfied he shall make an order rejecting the application: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate. Explanation.‑‑‑For the purpose of clause (1) the rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area where the building or rented land is situated shall be deemed to have been duly tendered. (3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession‑‑ (i) in the case of a residential building, if‑‑ (a) he requires it in good faith for his own occupation or for the occupation of any of his children; (b) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated; and (c) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area: (ii) in the case of a non‑residential building or a scheduled 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 rented land, as the case may be, suitable for his needs at the time; and (c) he has not vacated such building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area: Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period; Provided further that where the landlord had obtained possession of a residential, scheduled or non‑residential building or rented land under the provisions of sub‑paragraph (1) or sub‑paragraph (ii) he shall not be entitled to apply again under the said sub‑paragraphs for the possession of any other building of the same class or rented land unless such residential, scheduled or non‑residential building or land is no longer suitable for his needs at the time. (b) 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: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate. (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, 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. (5) Where a 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 further 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) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to be deposited regularly till the final decision of the case, before the fifteenth day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. (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 tines the monthly rent be paid by such landlord to the tenant. (8) The rent deposited by the tenant under this section shall, subject to the final determination of rent as payable by the tenant, be paid to the landlord at the conclusion of the proceedings, or on such earlier date as may be specified by the Controller. Section

14. The Controller shall summarily reject any application under subsection (2) or under subsection (3) of section 13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance. The Sindh Rented Premises Ordinance. 1979.‑‑ "

8. Fair Rent: (1) The Controller shall, on application by the tenant or landlord determine fait rent of the premises after taking into consideration the following factors:‑‑ (a) the rent of similar premises situated in the similar circumstances, in the same or adjoining locality; (b) the rise in cost of construction and repair charges; (c) the imposition of new taxes, if any, after commencement of the tenancy; and (d) the annual value of the premises, if any, on which property tax is levied. (2) Where any addition to, or improvement in, any premises has been made or any tax or other public charge has been levied, enhanced, reduced or withdrawn in respect thereof; or any fixtures such as lifts or electric 'or other fittings have' been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of section 9 be determined or, as the case may be, revised after taking such changes into consideration. Limit of Fair Rent: 9. (1) Where the fair rent of any premises has been fixed no further increase thereof shall be effected unless a period of three years has elapsed from the date of such fixation or commencement of this Ordinance; whichever is later. The increase in rent shall not in any case, exceed ten per cent per annum on the existing rent.

3. Eviction. No tenant shall be evicted from the premises 'in' his possession except, in accordance with the provisions of this Ordinance. Application to Controller: 15. (1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller." (2) The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that‑‑ (i) Omitted by S.R.P., ,(Amendment) Ord., 1984 dt. 30‑7‑1984; (ii) the tenant has failed to pay rent in respect of the premises in his possession. within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment;‑ (iii) the tenant has, without the written consent of the landlord‑‑ (a) handed over the possession of the premises to some other person; (b) used the premises for the purpose other than that for which it was let out; (c) infringed the condition on which the premises was let out; (iv) the tenant has committed such acts as are likely to impair the material value or utility of the premises; (v) the tenant has indulged in such activities as are causing nuisance to the neighbours; (vi) The premises is required by the landlord for reconstruction or erection from the authority competent under any law for the time being in force to give such sanction; (vii) the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. (3) Where the landlord who has obtained the possession of the premises for the purpose of reconstruction of the building , or erection of a new building, he shall demolish the existing building within six months of the taking over the possession of the premises or, as the case may be, commence the erection of the new building within two years of the taking over of the possession of the premises, and in case the landlord fails to demolish the building as aforesaid, the tenant shall be entitled to be put into possession of the premises, and for the purpose he may apply to the Controller for an order in that behalf (added vide Sindh Ordinance 11/80), dated 21‑1‑1980."

3. Before proceeding to closely examine these sections it may be mentioned that the concept of putting fetters on the right of owners of property to enjoy ownership rights finds its origin in the years of the Second World War when in big cities particularly the port towns of undivided India there fell a shortage of accommodation and it was deemed necessary by the erstwhile British Government to intervene and not only to regulate the rents of the' premises but also the right to lease them to the tenants of their own choice. Thus tenancies were created not by agreements between landlord and tenant but by allotment orders. They were called statutory tenancies. Allotment of premises was made by the Rent Controller to one of a large number of competing aspirants of a particular premises and owners/landlords were bound to accept such tenants/allottees. These allotments continued in India and Pakistan even long after the war was over. Later in sixties they were discontinued.

4. For the present, controversy is confined only to the extent of:‑ (1) Fixation of rents by the Rent Controller. (2) Eviction of the tenants from the rented premises.

5. An intriguing feature of this case is that so many changes have come in the West Pakistan Urban Rent Restriction Ordinance, 1959 and the Sindh Rented Premises Ordinance, 1979 that it is really difficult to keep pace with them. Originally the criterion for determination of fair rent was that the rent to be fixed would be "the rent of the same or a similar accommodation in similar circumstances prevailing in the locality during the twelve months prior to the 1st of January, 1950." In other words the rent to be fixed in 1979 would be the rents which would have been the rents of the premises in 1950 or a date prior to 1950. Subsequently this section was amended and now in the new shape the criterion would be that the fair rent should be fixed after taking into consideration "the rent of the same building or similar accommodation in similar circumstances prevailing in the locality at the time of and during the period of twelve months prior to the date of making application". The problem is not so simple as it looks on the face of it, because in commercial cities like Karachi and Lahore most of the property hit by the rent laws is pre‑partition construction. Some of them being very posh and attractive yet the formula for enhancement of rents in respect of such buildings is not in accord with the general rise in the cost of living and rise in prices of necessities of life but a nominal rise on the rents which were paid for the premises at the time of partition. It is this class of property which is now vitiating the social atmosphere and creating class hatred and other social problems between the landlords and tenant In a large number of cases original tenants have constructed their own houses and have shifted to their own premises after passing the possession to new tenants after receiving heavy amounts of `Pugree' from the incoming tenants: Some others have constructed houses and let them on high rents but are themselves not moving out and paying nominal rents.

6. These unsavoury practices continue and the landlord sits on the fence because under the law he cannot ask for the fair and marketable or commercial rents prevailing in the locality: All that he gets is 2 to 3 per cent of the `Pugree' amount for changing receipt after the deal is struck between the outgoing and incoming tenants between themselves. The other considerations prescribed in the sections for revision of rents after three years are also out of tune with the situation in the society. The very fact that even the changes in the statute from time to time have neither improved the relations between the landlord and tenant nor indeed reduced the volume of litigation in Courts between them is enough to show that these changes may have changed the outward look of the statute they have not solved the real problems involved.

7. In these petitions we have not and we could not examine the worth and merits of formulas under which the Rent Controller should base his decision in fixing, what is called, the fair rent of the premises because once we concede that the Sharia allows the State or any outside agency to interfere with the rights of an owner in his immovable property it would be difficult to define the parameter and degree of such interference. In the circumstances the juris-consults assisted us only on the fundamental question whether in an Islamic order where citizens are allowed to own landed property should they be allowed to enjoy its fruits and full benefits in full measure without any outside interference or should these rights be subjected to an interference to such an extent that their ownership is reduced to a nominal titulary ownership without proper benefit. We have focused our attention on this basic issue instead of scrutinising these Ordinances clause by clause or section by section. In addition to the question of fixation of rent by the Rent Controller over and above the bead of the landlord the other important question, which was raised and argued before us in these petitions, was the embargo on the rights of landlord to assume possession and control of his premises from the tenant either for reconstruction and improvement of the property or for his personal residence etc. The rule which governs the situation now is once a tenant always a tenant'.

8. Jamming the rents at a level much below the level of cost of living coupled with a complete embargo on the right of the landlord to eject a tenant has created a horrible situation, resulting in unwanted and undesirable litigation some times spreading over 15 to 20 years. During the pendency of litigation the tenant is enjoying the occupation at the same rent at which he had entered 15 or 20 years back. Due to the restriction on ejectment of tenants and suspension of normal process provided in Transfer of Property Act the landlord is left with no other remedy except going to the Rent Controller and filing ejectment application. The scope for filing ejectment application is also very restricted, because the right of a landlord to eject his tenant is 'qualified with so many conditions elaborated in section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The section provides `a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section'. Now if we have a look on section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and section 15 of the Sindh Rented Premises Ordinance, 1979 and examine these conditions it would be clear that the limited liberty allowed to the landlord is further subjected to the fulfilment of other condition namely `satisfaction' of the Rent Controller whether the request for ejectment is `bona fide'.

9. Where an application for ejectment on the ground of personal need is moved the landlord has to first prove‑‑ "(i) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated; and (ii) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area;"[ Section 13(3)(a)(i)(b) and (c).] If the landlord does not occupy the vacated premises within one month, the tenant would be allowed to reoccupy it although he may have his own house which has been let out at higher rents.[ Section 13(4), West Pakistan Urban Rent Restriction Ordinance, 1959.]

10. Whether a large family of respectable people wants to keep their sons and daughters in a separate apartment after their marriage or they should continue to live under a common roof with the elderly parents even after their marriage is not for the owner to decide but for the Rent Controller. Again, Whether an ailing old man suffering from heart diseases would live on the ground floor or continue to occupy the top floor of a multistorey building cannot be the decision of the owner himself but of the Rent Controller[Section 13(3), West Pakistan Urban Rent Restriction Ordinance, 1959.] When a landlord of an old dilapidated structure wants to demolish and reconstruct he cannot do it until he proves `to the satisfaction' of the Rent Controller that the request to reconstruct is `bona fide' [Section 19(2)(vi), Sindh Rented Premises Ordinance, 1979.] If a tenant, who is fully assured of his tenancy/possession, becomes a nuisance and a terror for the neighbours he cannot be got rid of under any other law until the Rent Controller, on the evidence is fully `satisfied' that from his standard the miseries caused to the neighbours are on account of acts of nuisance. In order to prove this behaviour of the tenant the landlord of the building must marshal all the evidence of the residents of the locality to prove that the tenant has been creating havoc and making the lives of others miserable[Section 13(2)(iv), West Pakistan Urban Rent Restriction Ordinance, 1959. Section 15(2)(v), Sindh Rented Premises Ordinance, 1979.] Cases of tampering with electrical connections, choking the gutter lines of the building, stopping the water supply from the underground tank, switching off the pumping machines intercepting the posts and in some cases even teasing and taking liberties with the female members of the family of the landlord and others have been brought to the Court for getting rid of such tenant.

11. All that has been stated above is not enough much more has been said in Court.

12. Even if the landlord at the cost of his time and money musters courage to take the matter to the Court the proceedings before the Courts would continue year after year and it would not be earlier than ten to fifteen years that he gets the results. By the time the landlord may no more be in this world to enjoy fruits of the outcome of the protracted litigation.

13. It would be relevant to quote some extracts from only two of the petitions to highlight the grievances of the owner/landlord. ‑

14. In Shariat Petition No.71/1 of 1990 the petitioner gives his experience in the following words:‑‑ "(5) Even if the ownership of the premises changes, the landlord's position remains completely unaffected. It must have been known to the concerned authorities that the price of occupied premises is much lower. Buyers prefer unoccupied property. So the owner selling the property suffers a financial loss in this way. In his turn the new owner too has no alternative to litigation if he wants to have his premises vacated and use it according to his wishes. The interest, convenience, wishes and comfort of the tenant transcend the interest and rights of the owner both new and old, of the property. (6) Even in the matter of rent maximum advantage has been given to the tenant. Fair rent can only be determined by the Controller and not by the parties. Under section 9 after the Fair Rent has been fixed by the Controller‑‑‑ (1) it cannot be increased before the elapse of three years from the date of fixation; and (2) it cannot exceed 10% per annum increase at the end of those three years. In the first place, inflation for these three years hits the landlord as it does everybody else, but unlike others, like Government servants whose pay is revised almost every year in accordance with the rise in the cost of living the landlord has to wait for three years for this increase. In the second, this rate of 10% has been fixed for all time, irrespective of the figure of 18% quoted by a former Prime Minister and over 11% by the present Finance Minister Mr. Sartaj Aziz for inflation. It is obvious that in the Ordinance no consideration has been given to the rights of the landlord over his own property. At the most, with all the built‑in adverse provisions, he is allowed relief through one course; litigation. But in this case litigation starts with the inherent advantage of‑‑ (1) provision of undisturbed occupancy of the premises to the tenant; (2) freezing the rent at the `present' rate of the duration of the litigation; and (3) making these facilities available to the tenant for at least a decade, some times even more, of its duration. The Ordinance leaves only two choices to the landlord. He either suffers the interminable tenancy or, if he cannot do that, file a legal suit under all the inherent disadvantages just mentioned. For the landlord it is a no ?win situation and for the tenant one of `heads I win, tails you lose'. That this is not an imaginary situation will be clear from the enclosed letter of an owner, Cases are also known where the tenant had no case and knew that he had no case and ultimately would lose, he (the tenant) merrily and comfortably stayed on for full ten years after the beginning of the suit and when he did vacate the premises under the orders of the High Court he was paying the same rent which was agreed to seventeen years earlier when he had rented the premises. In another case, the owner had to pay a sum of Rs.37,000 (Rupees thirty‑seven thousand) to the tenant for the favour of vacating the premises. Another case is known of a tenant agreeing to both vacating the house after due notice without creating any difficulty and paying rent on the due date given by the tenant himself. But after some time, after first himself indicating that he will be leaving soon and repeating assurance to that effect again and again and the expiry of the lease long ago he has continued to stay on and made no effort whatsoever to leave. On the contrary, he has been paying the rent most erotically, when he has after the due date, despite a Supreme Court judgment regarding the payment of rent.'

15. Another petitioner in his Shariat Petition No.60/I of 1990 gives his views on the hardships suffered by the landlord in the following words:‑‑

16. The mischief is further aggravated and the situation becomes more repugnant to Sharia and violative of the Injunctions of Islam when the sanctity of concluded agreements between the tenant and. landlord is allowed to be violated and they are treated as null and void. Tenants are encouraged to break the agreements and approach the Rent Controller for further benefits contrary to the terms of the agreed contracts. In cases where there are voluntary agreements between the landlord and tenant either about quantum of rents or about the specified term of tenancy the provisions of the Rent Act authorize a tenant to violate and ignore these agreements and the landlord is left helpless and without remedy to enforce these agreements. Actually the thrust of the argument advanced before us in these petitions is precisely this that the Rent Acts instead of providing a machinery for enforcement of voluntarily concluded agreements between the tenant and the landlord have installed a set‑up of the hierarchy of the Rent Courts for breaking those agreements. This, it is urged, cannot be countenanced by the Sharia, particularly in an Islamic State.

17. The juris consults have contended that it is not only violative of the Injunctions of Sharia but must be offensive to any system of civilized society. That a person should be allowed to continue to hold on the possession of the premises in his occupation even after and much to the distress of the owner although the term of tenancy has expired is undue exploitation of the owner of property. So much so that even a decree of a Court should be defeated on account of bar contained in these sections. It is a matter of common knowledge that the proceedings before a Controller seeking ejectment of a tenant on such grounds as urgent personal need or on the ground for reconstruction of the premises take as much as 15 years. The ejectment application before the Rent. Controller, the appeals, the remand and fresh decisions and further appeals to the Supreme Court; all overshadowed by trappings of procedure can easily be stretched to consume year after year shattering the nerves of the owner of property and defeating the purpose for which the ejectment was desired.

18. Now it remains to examine the position in the light of the Sharia.

19. We had the benefit of the argument of the juris consults, who assisted us in the examination of the grievances raised in these petitions from the point of view of Sharia. Two broad issues closely connected with each other were highlighted by the juris consults:‑‑ First: is it permissible in Islam to interfere with the enjoyment of rights in the property of an individual to such an extent that neither the owner can bargain for rents nor can he use his property for his own use or occupation? He is deprived from using his own property and someone else is put in possession much against his will. Second; whether one of the two contracting parties can be permitted to breach the contract and approach the Rent Controller to carve out a fresh contract and enforce it on another party against the latter's will and concurrence?

20. Reference may be made to the relevant material from the Holy Qur'an and Sunnah to show that whether it is sale,? lease or any other transaction relating to immovable property mutual consent free and voluntarily acceptance of reciprocal obligations between the two contracting parties is a must for a valid agreement. In Sura Nisa it is ordained:‑‑

21. Dr. Mehmood Ahmad Ghazi, an Islamic Scholar, appeared before us as a juris consult. He argued that the Holy Qur'an has mentioned about the sanctity of rights in property of an individual at 54 places. In Islam an individual's property is as sacred to him as his own life and an owner killed in defence of his property or in protecting his rights in the property would be a `Shaheed.' (2) The Holy Prophet (p.b.u.h.) said, `A Muslim in total is sacred for another Muslim, his blood, his property and his prestige. (Musnad, Ahmad Bib Hambal, Vol. III, p.193) (3) The Holy Prophet, (p.b.u.h.) at the time of his last pilgrimage, said, `Indeed your blood; your property and your prestige are as sacred as this day (the day of Arafah) and this city (Makkah). (Muslim, Vol. II, p.293). (4) Qazi Abu Yousaf said, `it is not lawful for a ruler to take away any part of property of any individual except with an established and recognised right." (Kitabul Kharaj, page 39). The learned Scholar then relied on sections 25, 95 and 96 of Majalah Al‑Ahakam Al‑Adilia:‑‑ He said that no one has a right to interfere with the rights of an individual except in cases such as management of infant's property or supervision of property belonging do a person of unsound mind.

22. Hafiz Salahuddin Yousaf, another Islamic Scholar, after arguing that in principle there is no objection in Sharia for letting out properties on rents, as there is no objection to leasing out lands to the Harries on `Batai' etc. proceeded to argue that the tenancy or Ijarah in respect of premises should be created through an agreement between the landlord and the tenant. He contended that for a contract/agreement of Ijarah following three conditions are necessary:‑‑ (1) The period for which tenancy is created. (2) The quantum of rents agreed to be paid by tenant. (3) The benefits and facilities which would be available to the tenant in lieu thereof. Once they agree either on the quantum of rent or on the duration or period for which the property is let out the parties should be forced to strictly follow the agreement (5: 1) . Neither the landlord should curtail the period or unilaterally increase the rents nor the tenant should hang on to the possession of the premises after the expiry of the term in the lease. If after expiry of the lease the demand for increase in rents does not suit the tenant he should immediately vacate the premises and seek premises commensurate to his means. To insist on remaining in possession on his own terms against the wishes of the owner/landlord, would be `Zulm'. The learned Scholar suggested that where there are agreements there would be no difficulty but even in cases where there are no agreement a period should be fixed say two years, three years after which the party should, by statute be forced to enter into agreements both regarding rents as well as period of tenancy. Extracts from his article are reproduced below:‑‑ The Learned Scholar further submitted that :‑

23. Another Islamic Scholar, Allama Talib Jauhari, appeared before us and has also filed an Article. After quoting Ayat No.188 in Sura Buqra and Ayats Nos.4 and 29 in Sura Nisa he stated that:‑‑ He proceeded to argue :‑ Attacking the provisions of the Sindh Rented Premises Ordinance, 1979, the Allama stated that :‑

24. Other Scholars namely Dr. Abdul Malik Irfani Dr. Allama Khalid Mahmud and Maulana Muhammad Tasin, who addressed us, were unanimous on the two points that the rent acts are unnecessary uncalled for interference in the rights of ownership of the immovable property. That, further, they encourage and legalise breaking of concluded agreements between the parties. Both are so offensive to the concept of Islamic Jurisprudence and are a clear violation of the injunctions of Islam.

25. It would be‑fair to mention in. the end that Dr. Riaz‑ul‑Hasan Gilani, who appeared on behalf of the Federal Government, introduced a new concept in the discussion. He raised his argument on the premises that no individual under Islamic law can claim absolute ownership of the property. According to the learned counsel any accommodation, premises or residential units in excess to the requirements of an owner should be freely made available to those who are without a shelter. The learned counsel further argued that the State had full authority to interfere, acquire or/and regulate the relationship between landlords and tenants. Further, whether the provisions of such a legislation cause hardship to one class or other is for the legislature to consider and the Courts cannot decide this question, the learned counsel contended.

26. We have examined this argument. So far as the first part of the argument is concerned, it falls out of the ambit of our jurisdiction as we are only examining an existing statute and not examining the viability of or wisdom of private ownership of 'properties. Suffice to say that this concept has been practically adopted in a number of Communist and Socialist countries.

27. So far as the other leg of his argument is concerned, Article 203‑D of the Constitution has clothed us with the power and jurisdiction to test the statute on the touch‑stone of Sharia with the assistance of Ulemas and Scholars and convey our opinion to the authority concerned. We are not enacting a new statute, but merely giving our opinion to the Government concerned about an existing statute and leaving the rest to the law‑making organs of the State.

28. Before closing, mention may be made to Ayat No.219:2 of Surah Baqra which is often torn out of its context and assigned different meaning. The background of this Ayat must be kept in mind at the time of interpreting it. Moreover as the words themselves indicate, the impact of the direction in this Ayat is not `Wajib' but `Mustahab'. It cannot be cited in aid for seqestration of individual's property. The Ayat is as under:‑‑

29. The incident of land of Hazrat Bilal Bin Haris is also mentioned to justify taking over properties/lands against the wishes of their owner. Again, it is based on misunderstanding. What happened in this case was that Hazrat Bilal had a vast area of land and for a number of years he could not bring all this land under the plough. Indeed he was not even willing to offer an undertaking that he would cultivate this land in the near future. In the circumstances Hazrat Umar distributed the extra fallow land among the poor cultivators. Not an inch of land in the use of Hazrat Bilal was taken.

30. The famous case of Hazrat Abbas refusing to surrender land for expansion of the (Masjid Nabvi) and Hazrat Umar, the all powerful Khalifa in Muslim history took a serious turn and both approached Hazrat Kaab for a decision. After hearing both, the elder and respected Sahabi, basing his decision on the incident of Hazrat Dawood who had acquired some land from a jew, gave a decision in favour of Hazrat Abbas. On this decision Hazrat Abbas was so happy that he surrendered the whole land willingly and happily without any compensation. These are the only known cases in Islamic history of early period in which the rights of an owner in land have been `touched'.

31. It will not be out of place to say something about the control of prices' of movables. The first Hadith which is relevant is that when people complained to the Holy Prophet (p.b.u.h.) about the high prices of consumer goods in the market and appealed to him to control the prices. The Holy Prophet (p.b.u.h.) replied, `This is Allah who controls prices'. (Ibne Qayyam Atturaqul Hukamiya, page 223, printed Lahore). No doubt the State would interfere with the merchants who hoard goods in expectations of high prices and with others who try to acquire monopoly in certain commodities in order to create artificial shortage in the market and‑sell their goods on their own terms. Such malpractices should not be allowed. But not by controlling prices but by controlling such merchants. They should be forced to bring out their goods in the open market. There are other occasions when it would be permissible for the State to interfere and help needy consumers. The Muslim Jurists have classified four such conditions. They are?Zaroriat, Hajiyat, Saholiyat, Tazniyat?. In the category of (Zaroriat) fall such articles without which there would be danger to life or risk to life and limb. These are the occasions of such extreme necessities where the State would help the needy and adopt measures which may amount to interference with the property of others. But if the need comes under the category of ?Hajiyat, Saholiyat, Tazniyat?there would be no justification to compel the owner of the articles to part with them for the benefit of others.

32. Assuming for the sake of argument that the housing requirements fall in the category of (Zaroriyat) although it is highly debatable, even then all that can be done or should be done is that a person should be provided a roof to cover his head which is compatible to his needs and status. It never means that a middle class tenant who can conveniently find modest residential accommodation in colonies on the outskirts of the city would insist for having finely finished superior accommodation located in posh area which can fetch higher and better rent for the owner. The jurists have put this position in these words:‑‑

33. Further, it cannot be invoked even in cases where the tenant has built his own house, nay several houses and let them at high rents yet is clinging to rented house and paying nominal rents. To force a landlord to keep such tenants at far lower rents of their prevailing rental value would mean exploitation of landlords at the hands of tenants.

34. In the end it would be most appropriate to make a mention of a case decided by the Shariat Appellate Bench of the Supreme Court reported in Qazalbash Waqf v. Chief Land Commissioner, Punjab P L D 1990 SC

99. It is a very exhaustive judgment but the part which is relevant for the purposes of this petition is Martial Law Regulation No.115, para. 25 which runs as under:‑‑ The Sindh Rented Premises Ordinance. 1979

13. No tenant shall be evicted from the premises in his possession except in accordance with the provisions of this Ordinance. 15.(2) The Controller shall make an order if he is satisfied:‑‑ (ii) the tenant has failed to pay rent in respect of the premises in his possession ....... Martial Law Regulation No 115.?????????? (iii) the tenant has, "

25. Rights of tenants: ‑???????????? (1) A tenant shall not be ejected from??? his tenancy unless it is established in a revenue Court that he has‑‑‑???????????????? (a) handed over the possession of the premises to some other person; (a) failed to pay the rent in accordance with the terms of his tenancy; or (b) used the premises for the purpose other than that for which it was let out; (b) used the land comprised in the tenancy in a manner which renders it unfit for the purposes for‑which????????? he held it; or???????????????????????????????????????? (c) infringed the conditions on which the premises was let out; West Pakistan Urban Rent Restriction Ordinance. 1959: (c) failed to cultivate or arrange for??????? the cultivation of the????? land????????????????? comprised in the tenancy in?????????????????? accordance with the terms thereof,??????? or if there are no express terms in????????? this behalf, in accordance with the???????? customary manner of cultivation in the locality; or??????????????????????????????????????

13. Eviction of tenant.‑‑ A tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with the provisions of this section. (d) sub‑let his tenancy." (2)

If the Controller,

is satisfied that‑‑‑ (i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, ........ (ii)??????? .............................. (a) transferred his right under the lease or sub‑let the entire building or rented land or any portion thereof; or (b) used the building or rented land for a purpose other than that for which it was leased; or (iii) the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or

35. There is a marked similarity between Article 25 of M.L.R. 115 quoted above and sections 15 or 13 of Rent Laws under discussion. Both give protection to the tenant in possession against his ejectment. The following extracts from the leading judgment of Justice Muhammad Taqi Usmani may be quoted in extenso. It is held:‑‑

36. The above opinion is richly adorned with quotations from the Holy Qur'an and Sunnah of the Holy Prophet (s.a.w.s.) which for the sake of brevity are not quoted here.

37. The upshot of the discussion is that in our opinion the provisions of sections 4 and 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and sections 8, 9 and 15 of the Sindh Rented Premises Ordinance, 1979, are repugnant to the Injunctions of Islam. They are in direct conflict with the verses of the Holy Qur'an and the Sunnah of the Holy Prophet (s.a.w.s.). We would, therefore, declare that these provisions shall cease to have effect on the expiry of six months from today.

38. Before parting with the case, it is desirable to add that in case the Central or Provincial Government deem it necessary to continue with the Rent Courts and also bring new legislation, it should be provided that the paramount consideration before the Rent Controller should be to settle the disputes in obedience to the famous Hadith . Naturally this noble concept of which is a gift to the Muslim Ummah cannot be codified in precise terms. It should vary from case to case and the Judge will have to reconcile the conflicting claims of landlord and tenant in each peculiar situation. Further whether the dispute to be decided in the light of the maxim should be decided by a judicial officer or by Mohallah Committees of elders and retired judicial officers is for the Government to decide. This would ensure quick disposal of cases and an inexpensive and acceptable method of regulating the relationship between landlord and tenant.

39. The Shariat Petitions Nos. 60/1/90, 71/1/90 and 9/L/90 are allowed. (Sd.) (Ibadat Yar Khan), Judge Subject to separate note. (Sd.) (Tanzil‑ur‑Rehman), Chief Justice Please see my note below. (Sd.) (Fida Muhammad Khan), Judge Subject to my note to the extent of maintainability as the point was neither argued nor raised. (Sd.) (Razzak A. Thahim), Judge Subject to the technical observations made about the legal aspect of the matter by the Honourable Chief Justice in his separate note at para. No.15, I agree with the reasons and conclusions in the judgment, proposed to be delivered by my learned brother Honourable Mr. Justice Ibadat Yar Khan. (Sd.) (Fida Muhammad Khan), Judge. CANTONMENTS RENT RESTRICTION (AMENDMENT) ORDINANCE. 1985. IBADAT YAR KHAN, J: ‑‑ Shariat Suo Motu No.117 of 1987, Shariat Petition No.5/I of 1985, Shariat Petition No.60/I of 1990, Shariat Petition No.71/1 of 1990 and Shariat Petition No.9/L of 1990 have a very chequered history. Due to long pendency of Shariat Petition No. 5/1 of 1985 and S.S.M. No.117 of 1987 things have become quite confused. Shariat Petition No.60/I of 1990, Shariat Petition No.71/I of 1990 and Shariat Petition No.9/L of 1990 mentioned above came to be filed after a gap of more than five years between them and Shariat Suo Motu No.117/87 and Shariat Petition No.5/1 of 1985. In the meantime the three statutes involved have undergone changes in different sections from time to time. If I may say so, it would be correct to say that these changes have been brought about on account of the guidelines provided in the judgment of this Court in S.S.M. No.189 of 1983. The occasion to issue those directions arose in S.S.M. No.189 of 1983 when the criterion for fixing rent by Rent Controller in the urban areas of the province of West Pakistan under West Pakistan Urban Rent Restriction Ordinance, 1959, was different from the one prescribed in the Cantonments Rent Restriction Act, 1963, which was applicable only to the Cantonment areas. In the judgment in S.S.M. No.189 of 1983 it was observed `there was no logic behind the discrimination between the landlords in the Cantonment areas and the landlords of the other urban areas of the country'. It was held `that the provisions of sections 7 and 8 of Act XI of 1963 were violative of the Islamic principles of equality before law'. On account of these observations the Cantonments Rent Restriction Act, 1963, was amended by Ordinance IX of 1985 and the object was to bring it in line with the similar provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. The controversy was set at rest for some time. After some time the petitioner in Shariat Petition No.5/I of 1985 whose judgment has been written separately faced the situation, which in his opinion was another instance of discrimination. He was a tenant in a house in Cantonment area. The landlady got ejectment order against him under section 17(2)(vi) of the Cantonments Rent Restriction Act, 1963, for demolishing of the old structure and reconstruction. Section 17(2)(vi) is reproduced below:‑‑ "(2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that‑‑ (vi) the landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction for such construction from the Cantonment Board:" The tenant raised a grievance, that he is being evicted from the premises but without ‑any assurance of being rehabilitated in a similar area in the proposed newly‑constructed building. This, according to the petitioner, was a right ensured to tenants of the urban areas by force of the provisions of section 13(5‑B) of the West Pakistan Urban Rent Restriction Ordinance, 1959, which reads as under:‑‑ "(5‑B) Where, in pursuance of an order under clause (vi) of subsection (2), a landlord has obtained possession of a building (in this subsection referred to as the old building), and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation and the Controller shall make an order accordingly in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just, and on the basis of rent of similar accommodation in the locality."

2. When the petition was presented, the Court issued S.S.M. No.117 of 1987 to consider the impact of the Cantonments Rent Restriction (Amendment) Ordinance, 1985 (Ordinance IX of 1985). This amendment, as stated above, was intended to bring the Cantonments Rent Restriction Act, 1963, in line with the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, which has been thoroughly examined by the Court with the assistance of juris consults during the hearing of Shariat Petition No.60/I of 1990, Shariat Petition No.71/I of 1990 and Shariat Petition No.9/L of 1990.

3. In the circumstances, the final position that emerges is that the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 and the Cantonments Rent Restriction Act, 1963 incorporating the sections mentioned in the suo motu notice are now the same. The provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 and the Sindh Rented Premises Ordinance, 1979, have been examined in the judgment covering Shariat Petition No.60/I of 1990, Shariat Petition No.71/ I of 1990 and Shariat Petition No.9/L of 1990. This S.S.M. No.117 of 1987 is, therefore, disposed of in terms of the judgment in these petitions. (Sd.) (Ibadat Yar Khan), Judge Subject to a separate note. (Sd.) (Tanzil‑ur‑Rahman), Chief Justice Subject to my separate note on the main judgment. (Sd.) (Fida Muhammad Khan), Judge Subject to my separate note on main judgment. (Sd.) (Razzak A. Thahim), Judge TANZIL‑UR‑RAHMAN; CJ.‑‑‑The matters mentioned above, were heard at Islamabad in the last week of January, 1991, by the Full Court comprising all the Judges, then present. Two of them were also heard at Lahore on 4‑2‑1991 and 6‑2‑1991 by the Full Court. All the matters were also heard at Karachi on 18th, 19th and 20th February, 1991 by all the Judges including Chief Justice, except, one who took oath of Office on 9th February, 1991. The matters were then reserved for judgment and assigned to my learned brother, Mr. Justice Ibadat Yar Khan, for writing judgment. In March, 1991 one of the Members of the Full Court, Mr. Justice Abdul Karim Khan Kundi was repatriated to the Peshawar High Court. The judgments were written finally by Mr. Justice Ibadat Yar Khan by the end of June, 1991 and circulated. The Court was closed after 4th July, 1991, for summer vacation.

2. I have gone through the proposed judgment in the last week of September, 1991, on my return to the principal seat of this Court after being away to Karachi, Lahore and then again to Karachi in connection with the Court sittings, for over six weeks and went to Quetta also to participate in the Judicial Conference and attending Chief Justices meeting.

3. The proposed judgment in SSM No. 117 of 1987 refers to an earlier judgment dated 6‑7‑1983 in SSM No. 189 of 1983, relating to the Cantonments Rent Restriction Act, 1963, which was delivered on 6th July, 1983, by Full Court comprising all the Judges then present including Mr. Justice Aftab Hussain, the then Chief Justice, Ali Hussain Qazilbash, Ch. Muhammad Siddique and Maulana Malik Ghulam Ali, JJ.

4. The Full Court after examining all the provisions of the Cantonments Rent Restriction Act, 1963, on the question of fair rent, observed that.‑‑ "The formula of fixation of fair rent is practically similar but now provisions have been made in the West Pakistan Ordinance for increase of the fair rent or the contractual rent, as the case may be, after every three years by a maximum of 25%, thus giving relief to the landlord also The Cantonments Rent Restriction Act, however, does not endorse or incorporate such a formula and the landlord has no right to increase the rent in any manner whatsoever. While dealing with the Essential Commodities Act of 1957 this Court has held in favour of the principles of fixation of prices of essential commodities by the Government (Taseer). House Accommodation is also a necessity since Islam recognises food, clothes and the housing as absolute necessity. It also recognises some other necessities like education and health."

5. After quoting Allama Shatbi, on the question of necessity (Al-?Muwafiqat, Volume 11, pages 8 & 9, printed in Egypt, 1975), it was observed that:‑ "Another principle is that the greed of the unscrupulous in the community for abnormal profit and rent should be checked in the interest of alleviation of detriment or damage to the public. The analogy of principles of Taseer can therefore, justify the fixation of fair rent:'

6. After referring to a number of authorities like Imam Ibn Taimiya and Imam Ibn Qayyim, it was observed that:‑ 'The purpose of the above Act is to stop the rent from increasing and to prevent the landlord from making them shelterless in order to obtain from or to force the 'tenants to pay increased rent. The provisions of section 17 are, therefore, very salutary because except for the ground of increase in the rent, the landlord has been allowed to eject a tenant on every reasonable ground. The Act advances public interest. The principle of fixation of fair rent is also not repugnant to Islam, if the objective with which a law allowing it is enforced be elimination of mischief in respect of those who are shelterless. There is one other legislation dealing with a similar subject and it is the West Pakistan Urban Rent Restriction Ordinance, 1959 which is applicable to urban areas other than Cantonments. By a recent amendment permission has been granted to the landlords to increase the rent according to a more generous formula after every three years. In the Cantonments Rent Restriction Act, 1963 no scope is left for such increase. On the other hand the formula for the determination of the fair rent is the same which was fixed in the conditions obtaining in , the year 1963."

7. After‑quoting section 7(2) and section 8 of the said Act and applying the well‑known shariah maxim (Neither cause damage, nor suffer damage) it was observed that if for the word damage only exploitation which is a category of damage is substituted it will be read as! "Neither cause exploitation nor suffer exploitation". In dealings in which exploitation is apprehended no one should be allowed an edge over the other. Saving a person from the exploitation of others presupposes that the person so saved shall also not be allowed to exploit this assistance and cause damage to the person first mentioned. The rule is that exploitation from either side should be frustrated. This is what is actually meant by the maxim: It was thus observed that:‑‑ "The landlord remains entitled to fair compensation. A rigid formula of fixation of rent is sure to frustrate this Sharia objective. Putting the landlord to such a strain may amount to the advancement of the financial interest of the tenant at the expense of the lawful interest of another group. Public weal means reconciliation of the interest of both in order to eliminate the possibility of mischief or damage to any particular group. The provision added now to the W.P. Rent Restriction Ordinance of 1959 by the substitution of section 4 and 5 by Punjab Ordinance IX of 1979 is much more salutary and can remove this repugnancy with the objective of Sharia." It was thus held that:‑‑ "The provisions of sections 7 and 8 of the Act of 1963 also violate the Islamic principles of equality before law. There is no logic behind the discrimination between the landlords in the Cantonment areas and the landlords in other urban areas of the country. If once it is conceded that rents can be increased periodically to keep them in line with the increase in prices or the facts of inflation in the case of one category, there is no earthly reason why the other group of people should be deprived of that facility. It is therefore, necessary that the provision of the increase in fair rent be enacted in this Act too as already done in the W.P. Urban Rent Restriction Ordinance, 1959."

8. The rest of the provisions of the Cantonments Rent Restriction Act, 1963, were not found repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.).

9. I have now the advantage of going through another earlier judgment dated 27th March, 1984 in S.S.M.No.101/P/83 (The Punjab Urban Rent Restriction Ordinance, 1959), S.S.M.No.2g/N.‑W.F.P./84(The West Pakistan Urban Rent Restriction Ordinance, 1959 as applicable to N.‑W.F.P.) S.S.M. No.22/B/84(The Balochistan Urban Rent Restriction Ordinance, 1959 and S.S.M.No.42/S/84 (The Sindh Rented Premises Ordinance XVII of 1979), delivered by the Full Court comprising Mr. Justice Aftab Hussain, the then Chief Justice, Ali Hussain Qazilbash, B.G.N.Kazi, Ch. Muhammad Siddique, Maulana Malik Ghulam Ali, Maulana Abdud Quddus Qasmi, Mufti Syed Shujaat Ali Qadri, JJ. In the said judgment, the Punjab Urban Rent Restriction Ordinance, 1959, the Balochistan Urban Rent Restriction Ordinance, 1959, the North‑West Frontier Province Ordinance IX of 1979 and the Sindh Rented Premises Ordinance XVII of 1979 were examined. This judgment was not brought to the notice of the Court during the course of hearing. In fact, it came to my knowledge only when I sat down for writing judgment.

10. The Full Court while examining the provisions of the aforementioned four Ordinances observed that:‑‑ "The question whether the legislature has the authority in Sharia to control the rental and eviction of a tenant was considered in detail by this Court in S.S.M. No.189/83, In re: The Cantonment Rent Restriction Act XI of 1963; the provision about fair rent in the Ordinance of 1959 which is under examination was approved expressly and the authority of such controls was held to be vested in the legislature."

11. While dealing with the question of ejectment, it was observed that "the provision about duration of tenancy determining its validity allows the landlord to obtain pugree from the new tenant after a tenant is evicted after expiry of his tenancy or to extort pugree for a new agreement from the same tenant. This may attain chaotic proportions in relation to commercial buildings or premises. This also applies to buildings constructed or reconstructed which are exempted for ten years even from the control in respect of fixation of fair rent." It was then observed that:‑‑ "To put it conversely, it is extremely arbitrary to make one set of landlords subject to controls beneficial to the tenants and to exempt others from those controls. It appears that on account of exemption granted to reconstructed building under the proviso to subsection (1) of section 3, no provision was made to give to the old tenant some area in the reconstructed building. The classification being arbitrary cannot be maintained. This would necessitate the provisions that after reconstruction the old tenants may claim an area equal to his old tenancy or even less. Similarly there appears no reason why building or premises obtained for personal requirement shall be allowed to remain with the landlord if he does not occupy the same for that purpose or relets shortly after occupation. This is prima facie proof that his plea of personal requirement was not correct. Mere imposition of fine is no relief to the tenant who is dispossessed in this manner; particularly from a non-?residential or scheduled building and thus is made to suffer some times irreparable loss and injury. This infringes the Sharia concept of Adl and shall have to be amended. This may not be so unreasonable in respect of residential building but is most unreasonable in respect of non‑residential or scheduled buildings. In the Ordinance of 1959 female children have been discriminated from male children in the matter of eviction of a tenant from a residential or scheduled building for their requirement. Scheduled buildings are occupied by Lawyers, Architects, Dentists, Engineers, Veterinary Surgeons and Medical Practitioners including practitioners of indigenous system of medicine. It is well‑known that the females are also attracted towards such business. This discrimination has no rationale behind it in Provinces other than Sindh Province:"

12. Consequently, the Governments of Sindh, Punjab N.‑W.F.P. and Balochistan were directed to amend the following provisions in the respective enactments as under:‑‑ "We direct the Government of Sindh to omit‑‑ (1) The proviso to subsection (1) of section 3; (2) Section 6 and (3) Clause (i) of subsection (2) of section

15. We further direct the Sindh Government‑‑‑ (a) to amend section 15(A) and to provide for restoration of the tenancy to the tenant if the landlord having obtained possession thereof under clause(vii) of subsection (2) of section 15 either does not occupy the same or relets within a reasonable time to he specified in the section. (b) to provide for giving to the tenant, if he so claims out of reconstructed building an area equal to the area occupied by him before reconstruction. We direct the Government of Punjab, N: W.F.P. and Balochistan to amend sub‑clause (a) of clause(ii) in subsection (3) of section 13 and omit therefrom the word `male'. We direct the Government of Punjab and Balochistan to add the provision regarding the condonation of first default in the payment of rent as contained in the proviso added to subsection (2) to section 13 by section 5 of the (West Pakistan Urban Rent Restriction North West Frontier Province Amendment) Ordinance XII of 1972."

13. It is, therefore, manifest that excepting the above provisions, the rest of the provisions of Rent Restriction Ordinances in the four Provinces including the fixation of fair rent, periodic increase, safeguard against ejectment, providing accommodation after reconstruction of the building were not found repugnant to the Injunctions of Islam.

14. Contrary to the above findings and result of examination in the above-said two judgments, my learned brother Mr. Justice Ibadat Yar Khan, while dealing with the provisions of sections 4 and 13 of the West Pakistan Rent Restriction Ordinance, 1959 and section 15 of the Sindh Rent Restriction Ordinance, 1979, taking a different view has held them repugnant to the Injunctions of Islam, (whereas the earlier two judgments of the Full Court did not find any repugnancy in these provisions) and as such has allowed the three Shariat Petitions bearing numbers 60/1 of 1990, 71/1 of 1990 and 9/L of 1990 and in consequence thereof, has dismissed Shariat Petition No.5/1 of 1985 and disposed of S.S.M. No.117 of 1987 accordingly.

15. In view of what has been stated above, and without adverting to any of the provisions of the said Act/Ordinances as to the examination thereof in the light of the Injunctions of Islam, the position which now emerges is that the relevant statutes which have been challenged in this Court, have already been examined by the Full Court and as such I am of the view that the abovementioned four petitions are not maintainable as the relevant laws had already been examined by Full Court comprising Hon'ble Judges including the then Hon'ble Chief Justice which gave its judgments as far back as 1983/84. These judgments shall hold the field unless and until set aside, modified or altered by the Shariat Appellate Bench of the Supreme Court in appeal or by this Court under its review jurisdiction. As no appeal was preferred against the said judgments, the same became final and are binding on all the Courts including the High Courts and the Supreme Court under Article 203 G.G. of the Constitution, as no appeal seems to have been preferred against that judgment. However, the earlier judgments could only be reviewed either on an application for review by any of the parties to the earlier judgments or suo motu by the Full Court. In the instant case, there is neither any application for review, nor there is an order for review of the earlier judgments in exercise of the Court's suo motu power. Notice in S.S.M. No.117 of 198,7 was issued under Article 203‑D(1) of the Constitution (as if the provisions of the West Pakistan Ordinance, 1959, are intended to be examined for the first time) and not for review as provided under Article 203‑E(9) of the Constitution. In fact, the proposed judgments do not even refer to the arguments/reasons, rationale or findings given in the earlier judgments, and in no way fulfil the requirements of review. ???????????

16. The petitions are, therefore, not maintainable and are liable to be dismissed as such.

17. I am, however, of the view that the Full Court comprising of all the Hon'ble Judges present including Chief Justice may take a decision for taking up the re‑examination of the above two judgments of 1983/84, under its suo motu review jurisdiction as provided under sub‑Article (9) of Article 203‑E of the Constitution, 1973, as added by P.O. No.V of 1981 read. with Chapter V‑A of the Rules of Procedure of 1981 of this Court. ABDUL RAZZAK A. THAHIM, J.‑‑‑I have gone through the proposed judgments to be delivered in Shariat Petitions Nos.5/I of 1985, 60/I of 1990, 71/I of 1990, 9/L of 1990 and Shariat suo motu No.117 of 1987. The leading judgment has been written by Mr: Justice Ibadat Yar Khan dissented 16y Chief Justice, Mr. Justice Dr. Tamil‑ur‑Rahman. There is a note of Mr. Justice Fida Muhammad Khan.

2. My brother Mr. Justice Fida Muhammad Khan has agreed with reasons and conclusions of the proposed leading judgment of Mr. Justice Ibadat Yar Khan whereby provisions of sections 4 and 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and sections 8, 9 and 15 of the Sindh Rented Premises Ordinance, 1979 have been declared to be repugnant to the Injunctions of Islam and are in direct conflict with the verses of Holy Qur'an and Sunnah of the Holy Prophet (S.A.W.S.). I also agree with my brothers Mr. Justice Ibadat Yar Khan and Mr. Justice Fida Muhammad Khan.

3. Mr. Justice Dr. Tanzil‑ur‑Rahman, Chief Justice has dismissed the petitions as not maintainable on the basis of two earlier decisions of this Court.

4. I may observe that these petitions were admitted after preliminary hearing and in one Shariat Petition this Court has taken suo motu action. All Shariat Petitions were heard on 29‑1‑1991, 30‑1‑1991, 31‑1‑1991, 18‑2‑1991, 19‑2‑1991 and 20‑2‑1991 but no one including Deputy Attorney General, representative of Provinces raised any objection about maintainability of the petitions. The view taken by Chief Justice on this legal point must in all fairness be pointed out to Mr. Justice Ibadat Yar Khan as three Judges including myself have come to the conclusion that provisions as mentioned in the leading judgment are repugnant to Holy Quran and Sunnah (S.A.W.S.). I am of the view that dissenting judgment on law point be placed before Mr. Justice Ibadat Yar Khan thereafter on this point only the judgment be placed before me. I have received these judgments today when two Hon'ble Judges' present term is to expire after two/three days, the record of judgments referred by Chief Justice is not available, therefore, I have not been able to subscribe my views in detail if provisions of some statute if held to be repugnant to Qur'an and Sunnah (SAW.S.) could the petitions be dismissed on technicalities and to what extent this could be done at to what extent case‑law is available. Shariat Petition No.5/I of 1985 is dismissed by this court including Chief Justice, though for a different reason on the ground of non-maintainability. Shariat Petitions Nos.60/I/90, 71/1/90 and 9/L/90 of 1990, by majority decision are allowed; the Chief Justice dissenting on the legal ground of non-?maintainability without adverting to the provision of any of the laws involved in the matters. The Suo Motu Notice No.117 of 1987 stands disposed of accordingly. Decision will be effective on the expiry of six months from today. (Sd.) (Tanzil‑ur‑Rahman) Chief Justice (Sd.) (Ibadat Yar Khan) Judge (Sd.) (Fida Muhammad Khan) Judge By majority petitions are allowed legal points were neither raised nor were heard. (Sd.) (Razzak A. Thahim) Judge M.B.A./644/FSC???????? Order accordingly.