Find a Lawyer

Writ Petition No. 606 of 1981, decided on 19th December, 1981.

Ss. 14 & 17 (2) (vi) and West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 11 & 13 (2) (vi) ‑‑Ejectment on ground of reconstruction‑Provisions of Act and Ordinance on subject similar in nature‑Position of landlord dealt with by Ordinance not different from landlord governed by Act‑Order of ejectment sought by landlord on plea of reconstruction under S. 17 (2) (vi) of Act‑Held, cannot be withheld simply for reason that reconstruction needs approval of Rent Controller under S. 14 of Act and same not yet allowed‑Order of District Judge non‑suiting landlord on score of provision of S. 1.4 of Act‑Held, without lawful authority and liable to be quashed.

Muhammad Ibrahim v. Mst. Surraya Sultana P L D 1966 Lah. 406; Raja Muhammad Khan v. Babu Fazal Karim P L D 1973 Note 131 at p. 201. and Khushi Muhammad v. Anwar Begum etc. N L R 1980 Civil Lah. 366 ref.

‑‑ Ss. 11 & 13 (2) (vi)‑Ejectment on plea of reconstruction‑Non compliance with S. 11‑Held, does not take away right of landlord to secure ejectment of tenant on plea of reconstruction.

Muhammad Ibrahim v. Mst. Surraya Sultana P L D 1.966 Lab. 406; Raja Muhammad Khan v. Babu Fazal Karim P L D 19.73 Note 131 at p. 201 and Khushi Muhammad v. Anwar Begum etc. N L R 1980 Civil Lah. 366 ref

----Ss. 17‑Additional Rent Controller under Act‑Held, possesses jurisdiction to decide ejectment matter.

Hafeez‑ur‑Rehman v. The Additional Rent Controller Lahore Cantt. and 2 others 1981 C L C 185 ref.

Mian Asrarul‑Haq and Syed Rashid Rahim for Petitioner.

Muhammad Siddiq Butt for Respondent No.1.

Nemo for Respondent No. 2.

Date of hearing : 19th December 1981.

This writ petition has arisen out of an application filed by the petitioner, Farooq Ahmad Bhatti, against respondent No. 1, Ghulam Haider, hereinafter referred to as the respondent, for his eviction from certain premises situated in the area of Lahore Cantonment, Lahore. These premises are being used by the respondent for running a bakery. The respondent's ejectment was sought by the petitioner on the ground that he (petitioner) required the premises for the purpose of reconstruction, as he wanted to raise residential apartment in place of the premises in question. Accepting his plea, the Additional Rent Controller, Lahore Cantonment, Lahore, passed order of eviction against the respondent. His order was challenged by the respondent by means of an appeal before the District Judge, Lahore. The appeal was allowed by the learned District Judge, the order of eviction made against the respondent was set aside and the ejectment application of the petitioner was dismissed. The petitioner has, therefore, invoked the constitutional jurisdiction of this Court to assail the order of the learned appellate authority.

2. While accepting the appeal, the learned District Judge did not reverse the finding of the learned Additional Rent Controller that the premises in question were needed by the petitioner for the purpose of reconstruction. The reason for which the petitioner was non‑suited by the learned appellate authority was that the said premises were being used for a commercial purpose and since the petitioner wanted to reconstruct them with a view to converting them into a residential building without obtaining permission of the Rent Controller, under section 14 of the Cantonment Rent Restriction Act, 1963, hereinafter referred to as the said Act, for such conversion, his application for ejectment was not maintainable.

3. Assailing the aforesaid reasoning of the learned District Judge, it was contended by learned counsel for the petitioner that the petitioner could seek eviction of the respondent, under clause (vi) of subsection (2) of section 17 of the said Act, even if the proposed reconstruction of the premises in question would involve conversion as contemplated by section 14 of the said Act. According to the learned counsel, therefore, the learned District Judge was not justified in dismissing the ejectment application on the ground that the petitioner had not obtained. permission under section 14 of the said Act. In this connection, reliance was placed by him on Muhammad Ibrahim v. Mst. Surraya Sultana (P L D 1966 Lah. 406), Raja Muhammad Khan v. Babu Fazal Karim (P L D 1973 Note 131 at p. 201) and Khushi Muhammad v. Anwar Begum etc. (N L R 1980 Civil Lah. 366).

4. On the other hand, it was urged by learned counsel for the respondent that since the petitioner wanted to reconstruct a commercial building, namely, the‑ disputed premises, so as to convert it into a residential building, in con travention of the mandatory provisions of section 14 of the said Act, he was not entitled to oust the respondent from the said premises for the purpose of such reconstruction.

5. All the authorities cited by learned counsel for the petitioner relate to the West Pakistan Urban Rent Restriction Ordinance 1959, hereinafter referred to as the said Ordinance. It is under clause (vi) of subsection (2) of section 13 of the said Ordinance that a landlord can seek ejectment of his tenant on the ground of reconstruction. As against section 14 of the said Act, which does not allow conversion of a residential building into a com mercial building or vice versa except with the permission of the Rent Controller, it has been provided in section 11 of the said Ordinance that no person shall convert a residential building into non‑residential building except with the permission of the Rent Controller. It would, therefore, be observed that although the provisions of clause (vi) of subsection (2) of section 17 and section 14 of the said Act are not exactly the same as are embodied in clause (vi) of subsection (2) of section 13, and section 11 of the said Ordinance yeti they are of similar nature and as such the case law cited by learned counsel for the petitioner can safely be made use of for resolving the point in issue.

6. In Muhammad Ibrahim's case. it was held that although the contraven tion of mandatory provisions of section 11 of the said Ordinance was punishable under section 19 thereof yet it did not constitute a ground for resisting an application in which ejectment of the tenant was sought on the ground that residential building occupied by the tenant was required to be converted into non‑residential building. Relevant observations made in that precedent case run as follows :‑

"From the above analysis, it becomes abundantly clear that in the scheme of the Ordinance, while a restriction on indiscriminate con version of residential buildings into non‑residential buildings has been imposed by section 11, and whose contravention is punishable under section 19, with a view to safeguard the availability of residential space, such a conversion without permission has not been made a ground for the dismissal of a petition under section 13. Although, the Controller has been given a discretion to make an order in favour of the landlord on ground (vi) of subsection (2) of section 13, and is not bound to do so, nevertheless, the contravention of section 11 is not one of the sure grounds on which an application for ejectment could be resisted. If it had been the intention of the Legislature to make this otherwise mandatory provision as one of the conditions precedent, under Part (vi) of subsection (2) of section 13, it should have been mentioned there in its proper context where there is also a reference to obtaining necessary sanction for the said construction from the Improvement Trust. Municipal Corporation and Municipal Committee, etc. I am, therefore, of the view that this is not a ground on which an application under section 13 filed by a landlord could be successfully resisted."

7. In the case of .Raja Muhammad Khan, the opinion expressed was that section 11 of the said Ordnance was not attracted to an application for ejectment based on the ground of requirement for reconstruction. What was noted in that case reads as under :‑‑

"The distinction between the residential building and non‑residential building is not relevant for deciding the question of requirement for reconstruction. This distinction is pertinent only when a building is required for personal use or for the use of his children by the landlord. Building includes both residential building and non‑residential building. It will, therefore, be clear that the question of conversion from resid ential into non‑residential does not arise where the application is based on the ground of requirement for reconstruction. As such section 11 also does not stand in the way of the landlord to secure the ejectment of the tenant in order to include the residential portion in his possession into the proposed market."

8. In the case of Khushi' Muhammad, it was held that contravention of section 11 of the said Ordinance was not a valid, ground for resisting an application for ejectment for reconstruction inasmuch as section 11 did not govern the provisions of section 13 of the said Ordinance.

9. The consensus of authority, therefore, is that non‑compliance with section l I of the said Ordinance does not take away the right of a landlord) to secure ejectment of tenant on the plea of reconstruction.

10. The position of the landlord who has been dealt with by the said Ordinance is not in any way different from the landlord who is governed by the said Act. As pointed out earlier, according to clause (vi) of sub‑section (2) of section 17 of the said Act he can seek ejectment of the tenant on the ground of reconstruction. It has not been provided anywhere in the said Act that the above ground would not be available to the landlord if the reconstruction involves conversion as envisaged by section 14 of the said Act but permission for such conversion has not been obtained. Contravention of the provisions of section 14 of the said Act is punishable under section 28 thereof with a fine extending up to Rs.500. If the reconstruction planned by the petitioner is likely to entail conversion alluded to in section 14 of the said Act, the petitioner would be able to avoid the penalty provided therein by obtaining permission for such conversion after ejectment of the respondent but before‑undertaking the proposed reconstruction. Even if such a precau tion is not taken by him and the reconstruction is done in contravention of the provisions of section 14 of said Act, the only penalty which can be inflicted on him is a fine extending up to Rs.500. It will not perhaps be possible to demolish the reconstructed building because the reconstruction has been approved by the competent authority. Be that as it may, keeping in view the principle enunciated in the precedent cases referred to above, I am clear in my mind that the order of ejectment sought by the petitioner on the plea of reconstruction cannot be withheld simply for the reason that the reconstruction is required to be approved by the Rent Controller, under section 14 of the said Act, but it has not so far been allowed by him. In this view of the matter, the learned District Judge had no jurisdiction to non‑suit the petitioner on the score of the provisions of section 14 of the said Act. His order under challenge, therefore, being without lawful authority, deserves to be quashed.

11. It was also contended by learned counsel for the respondent that the ejectment application filed by the petitioner was not competent inasmuch as it related to rented land and not building. The respondent's objection in this behalf was repelled by learned Additional Rent Controller and his finding was not taken exception to by the learned District Judge. It was, however, urged by learned counsel for the respondent that the finding of the learned Additional Rent Controller on the question of competency of the ejectment petition was erroneous. In this connection, my attention was drawn to the statement of the respondent, which was recorded by the learned Additional Rent Controller. In that statement it was conceded by the respondent that the property in dispute was originally owned by Seth Jamsha Ji from whom it was purchased by Ch. Asadullah. The petitioner had, in turn, purchased the said property from Ch. Asadullah. In his statement it was disclosed by the respondent that when the building in dispute was in possession of Seth Jamsha Ji, it was housing a hotel besides Grrndlays Bank and a workshop. It was also added by the respondent that the place where he is now running the bakery was being used for cooking purposes. Thus, according to his own statement, the premises in question were being used for commercial purpose even before the respondent was inducted therein as a tenant. There is thus no merit in the contention that the property in dispute was vacant land and not building and, therefore, the ejectment application was not competent.

12. Another point raised by learned counsel for the respondent was that the Additional Rent Controller had no jurisdiction to hear the petition inasmuch as his appointment could not be made by the Federal Government. Elaborating his argument, it was submitted by learned counsel for the respondent that it was the Additional Execution Officer of the Lahore Cantonment who had been appointed as Additional Rent Controller also but since his appointment as Additional Execution Officer was not warranted by any law, his appointment as Additional Rent Controller was also not in order. Objection in this behalf was taken before the learned Additional Rent Controller but was not accepted. It was re‑agitated before the learned District Judge but in vain. In this regard, it was painted out by learned counsel for the petitioner that the view expressed in Hafeez‑ur‑Rehman v. The Additional Rent Controller, Lahore Cantt and 2 others (1981 C L C 185) was opposed to the proposition put forth by learned counsel for the respondent. In the said case also an objection like the one raised in the instant case was advanced but the same had failed. No authority to the contrary was cited by learned counsel for the respondent. Therefore, in view of the reasoning given in the case of Hqfeez‑ur‑Rehman, I am unable to hold, in the present proceedings, that the learned Additional Rent Controller had no jurisdiction to decide the ejectment matter.

13. For what has been said above, I accept this writ petition and set aide the order of the learned District Judge by which the petitioner's ejectment application was dismissed. This would, obviously, have the effect of restoring the order of eviction made by the learned Additional Rent Controller. There shall be no order as to costs.

14. Learned counsel for the petitioner has no objection to two months' time being allowed to the respondent to vacate the disputed premises. I, therefore, direct that the order of eviction shall not .be executed for two months from today, that is, the 19th December, 1981.

S. Q, Petition accepted.