PLJ 2022 Peshawar 178
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(2)(vi)--Ejectment application--Dismissal of application--Enhancement of rent--Non-obtaining of necessary approval from concerned authorities for reconstruction of rented building--Dismissal of appeals--Permission was granted after decision of appeal--Challenge to--Obligation for landlord--It is obligatory for landlord to obtain necessary sanction for reconstruction or erection of new building from relevant authorities at time of filing of ejection application or even during its pendency--Petitioner was granted permission much after decision of Appellate Court--Case of petitioner does not fall within ambit of Section 13(2)(vi) of Ordinance of 1959--Approval of building plan was neither placed before Rent Controller nor before Appellate Court in order to substantiate contention of petitioner for reconstruction or erection of a new building and instant--Application of petitioner was premature, as such, it was rightly dismissed by both fora below--Petitioner is at liberty to submit his application in accordance with sanction provided to him for construction of a new building--Petition dismissed. [Pp. 180, 181 & 183] A, B, C, D & E
1980 SCMR 516 and PLD 1988 SC 731 ref.
Mr. Abdul Halim Khan. Advocate for Petitioner.
Nemo for Respondents.
Dates of hearing: 23.6.2022 & 27.6.2022.
PLJ 2022 Peshawar 178
[Mingora Bench (Dar-ul-Qaza) Swat]
Present: Muhammad Naeem Anwar, J.
versus
NOOR ISLAM and others--Respondents
W.P. No. 534-M of 2020, decided on 27.6.2022.
Judgment
This single order in the instant petition shall also decide W.P No. 126-M of 2020 titled “Noor Islam and others vs. Sher Afzal Khan and others”, not because the parties are same but both the petitions are emanating from the consolidated Judgment & order of learned Additional District Judge/Izafi Zilla Qazi Malakand at Dargai dated 26.10.2019, whereby the appeals of both the parties against the judgment & order of learned Rent Controller dated 24.11.2018 were dismissed consequently, the order of learned Rent Controller was maintained.
2. The instant petition was heard on 23.06.2022 when none was present on behalf the respondents despite service whereas the connected petition was heard on 27.06.2022. Facts leading to these petitions are that on 07.01.2015 petitioner filed the application for ejectment of respondents under Section 13(2)(vi) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (the Ordinance of 1959) against the respondents from the shops situated at Degai Market Skhakot, District Malakand, as described in the headnote of the application, on the ground that the shops in dispute are in dilapidated condition, which require to be reconstructed and after reconstruction, the shops may be allotted/rented in favour of the respondents if they contacted him, by mentioning therein that he has applied for necessary approval of construction of the new building. The application was resisted by the respondents on different legal and factual grounds. Recording of evidence and hearing of the parties resulted into dismissal of the ejectment application vide judgment/order dated 24.11.2018 of the learned Rent Controller, wherein the application of the petitioner was held to be not maintainable as the requisite permissions were not obtained from the concerned authorities. Nevertheless, through the same order the rent of the shops, which are 27 in number, was enhanced 100 percent. The landlord and the tenant both were aggrieved from the order, as such, the petitioner/landlord filed appeal against dismissal of his ejectment application whereas, the respondents filed appeal against the enhancement of rent however, their appeals were dismissed by the learned Appellate Court on 26.10.2019, hence, both these petitions.
3. When learned counsel for petitioner of the instant petition was confronted with the maintainability of the ejectment petition, he submitted that permission has already been granted to the petitioner from the Tehsil Municipal Administration, Dargai, District Malakand vide office letter Bearing No. 2074-75/TMA/Dargai dated 12.12.2019, as such, the impugned orders of the learned Courts below require reversal.
4. Arguments of both the counsel in the connected petitions were heard and record perused.
5. No doubt, there is no restriction for seeking the eviction of the tenant on the ground of reconstruction of the demised premises subject to the conditions as provided in Section 13(2(vi) of the Ordinance of 1959, which reads as under:
13(2)(vi) the building or rented a 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 [Municipal Corporation, the Municipal Committer, the Town Committee or the Provincial Urban Development Board 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 in 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 exceed four months in the aggregate;
It is also not the requirement of the law for the landlord to establish that the demised premises are in dilapidated or in dangerous condition because the landlord has a right to improve his property despite the building may not be in dilapidated condition, however, Section 13(2)(vi) of the Ordinance of 1959 has provided a mechanism which manifests that the building or rented land is reasonably and in good faith required by the landlord for reconstruction or erection of a building on the site, and the landlord has obtained necessary sanction for the said reconstruction from the concerned authority for the area where such building or rented land is situated.
6. Furthermore, Section 13(2)(vi) of the Ordinance of 1959 makes it obligatory for the landlord to obtain necessary sanction for reconstruction or erection of new building from relevant authorities at the time of filing of ejection/eviction application or even during its pendency but said provision does not require it to be renewed again and again before starting the actual process of reconstruction. In the case of “Oamar Din vs. Mst. K. Taleh Begum” (1980 SCMR 516), the apex Court has held that “if the landlord reasonably and in good faith required the premises for reconstruction. it gives a cause of action to him for making an application for eviction and absence of a sanction from the authority concerned could not defeat the application if such a sanction is subsequently obtained during the course of proceedings before the Rent Controller.” Keeping in view the principle enunciated by the apex Court in the case (supra) in juxtaposition with filing of the application, which was filed on 07.01.2015 and was decided by the learned Rent Controller on 24.11.2018, appeals there-against filed by the petitioner on 04.01.2019 was also decided by the learned Appellate Court on 26.10.2019, in consonance with the law that the appeal is continuation of the suit. Had the petitioner obtained the requisite permission for reconstruction or erection of a new building till the final decision of the appeal i.e., 26.10.2019, the submission of learned counsel for the petitioner could be entertained, however, the petitioner was granted permission on 12.12.2019, much after the decision of the learned Appellate Court. Therefore, the case of the petitioner/landlord does not fall within the ambit of Section 13(2)(vi) of the Ordinance of 1959. The approval of building plan was. neither placed before the learned Rent Controller nor before the learned Appellate Court in order to substantiate the contention of the petitioner for reconstruction or erection of a new building and the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be held to be continuation of the ejectment application filed before the learned Rent Controller, therefore, the application of the petitioner was premature, as such, it was rightly dismissed by both the learned fora below. More-so, an order of ejectment on the ground of reconstruction and good faith can only be passed after holding proper inquiry/trial as held in the case of “Muhammad Hussain v. Muhammad Siddique and 2 others” (PLD 1988 SC 731).
7. Turning to the connected petition where the learned Rent Controller has enhanced the rent by 100 percent, Section 4 of the Ordinance of 1959 pertains to determination of the fair rent, where the learned Rent Controller on the application of the landlord or tenant of any rented premises fix the fair rent after holding an inquiry, as he thinks fit, however, in no way, the Rent Controller could not enhance.the rent more than 25% of the rent of building being paid by the tenant on the date of filing of the application under sub-section (1) of Section 4 of the Ordinance of 1959. For convenience Section 4 of the ordinance is reproduced as under:
4. Determination of fair rent.--(1) The Controller shall, on an application by the tenant or landlord of a building (other than non--residential building) or rented land, fix fair rent for such building or rented land after holding such enquiry as the Controller thinks fit.
(2) The fair rent shall be fixed after taking into consideration the following factor.
(a) 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 the making application;
(b) the rise in the cost of construction of the repairing chargers as well as the imposition of the next taxes after the commencement of the tenancy; and
(c) the rental value of the building or rented land entered in the Property Tax Assessment Register of the Taxation Department or the local body relating to the period mentioned in the clause (a) if any
(3) The fair rent fixed under this section shall be payable by the tenant from a date to be fixed by the Controller nor earlier than the date of filing the application.
(4) If the fair rent fixed under subsection (2) exceeds the rent being paid by the tenant on the date of the filing of the application under this section, the maximum increase of the rent payable by the tenant shall not be more than 25% of the rent already being paid by him.”
Provided that the increase in the rent to be fixed under this section shall not exceed twenty-five per cent of the rent being paid by the tent on the date of filing of the application under sub-Section 1.
The proviso to sub-section (4) of the above reproduced Section 4 of the Ordinance of 1959 is not only lucid, self- explanatory, intelligible, unambiguous but also open to only one interpretation that the jurisdiction of the Rent Controller in enhancement of the agreed rent is only to the extent of 25% and the Rent Controller, in no circumstance, can enhance the rent exceeding 25% of the agreed rent or rent being paid by the tenant on the date of filing of the application.
8. It is an established law that when a thing is required to be done in a particular manner, it must be made in that manner and not otherwise. When the legislature has provided the ceiling limit for enhancement/increase of the rent, the Rent Controller will have to follow the same and in no case can enhance the rent more than 25% of the rent being paid by tenant on the date of filing of the application. In this regard, reliance can be placed on the principle enunciated in the cases of “Qamar Javed vs. Gul Jahan” (2005 MLD 1329), “Syed Bashir Hussain vs. Abdul Waheed” (2013 MLD 1675), “SNGPL VS. OGRA” (PLD 2013 Lahore 289), “Cantonment Board Clifton vs. Sultan Ahmad Siddique” (2016 CLC 919), “Muhammad Akram Javid vs. Bashir Ahmad Soauk” (2016 CLC 1751), “Hassan Bakhsh vs. Sultan” (2016 MLD 1157). “Ajmir Shah, Ex-Sepoy vs. the Inspector General. Frontier Corps Khyber Pakhtunkhwa and another” (2020 SCMR 2129), “Muhammad Hanif Abbasi v. Imran Khan Niazi” (PLD 2018 SC 189), “Shahida Bibi v. Habib Bank Limited’ (PLD 2016 SC 995) and “Human Rights Cases Nos. 4668 of 2006 and others” (PLD 2010 SC 759). Thus, the findings of the learned Rent Controller to the extent of the enhancement of the rent by 100% are illegal, as such, said findings are hereby modified to the extent of 25%.
9. Before parting with this order, it is pertinent to mention here that the ejectment application was filed on 07.01.2015 and was decided on 24.11.2018, whereas in the case of “Barkat Ali vs. Muhammad Ehsan and another” (2000 SCMR 556), certain directions were issued by the Hon’ble Supreme Court of Pakistan for compliance, where under. Serial No. 7 of the direction it was directed that:
“(7) Adjournment of ejectment petition should not be allowed except under unavoidable circumstances on an application moved by a patty supported by affidavit. In such cases also adjournment should not be made for a period exceeding three days. Following the above procedure in ejectment matters appears to be necessary to achieve the goal of expeditious disposal of cases within a period of three months particularly in respect of residential tenements having regard to the decisions unanimously taken in the Chief Justices’ Committee Meeting held on 26-2-2000.”
Therefore, the petitioner is at liberty to submit his application in accordance with the sanction provided to him for construction of a new building, however, after filing of the ejectment petition and appearance of the respondents/ tenants, it is expected that the learned Rent Controller shall decide the matter within a period as desired by the Hon’ble Supreme Court, if not earlier.
10. Therefore, keeping in view all the aspects, as discussed above, the instant petition i.e., W.P No. 534-M of 2020 is hereby dismissed with above observation whereas, the connected petition W.P No. 126-M of 2020 is disposed of to the effect that rent of the demised premises shall be deemed to have been enhanced by 25% of the rent being paid at the time of filing of application.
(Y.A.) Petition dismissed
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