This appeal turns on the interpretation of subsection (2)(vi) of section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 (hereafter called the said Ordinance). The first respondent to whom I shall refer as the respondent, is the owner of a property on Share Iqbal, Quetta and for about 15 years the appellant has been his tenant of a small portion of this property. The portion measures only about 28 square feet, and as both the learned counsel referred to it as a Khokha, I shall also do so. In the events that happened, the respondent wanted to eject the appellant from this Khokha, therefore on 5th April 1965 he filed an application before the Rent Controller, Quetta for ejectment of the respondents under section 13 of the said Ordinance. The respondent had advanced two pleas in support of this application, namely, that he wanted to demolish and reconstruct his property including the Khokha for his own use, and that the appellant had illegally sublet the Khokha. The learned Rent Controller rejected both these pleas and by his judgment dated the 11th June 1969 he dismissed the respondent's ejectment application. However, I have to observe here that the provisions of subsection (2) (vi) of section 13 of the said Ordinance had been amended by the West Pakistan Ordinance XXI of 1965 after the respondent had filed his ejectment application, and in holding that the respondent was not entitled to demolish and re-construct his property, the learned Rent Controller had relied on the amended provisions of subsection (2) (vi).
Aggrieved by this judgment, the respondent had filed an appeal before the District Judge, Quetta which was allowed. By his judgment dated the 23rd September 1969, the learned District Judge rejected the respondent's plea that the appellant had sublet the Khokha. However, he accepted the submission of the respondent that the rights of the parties were governed by the provisions of subsection (2), clause (vi) of the said Ordinance, as they stood when the respondent had filed his ejectment application, and not by the subsequent amendments. He therefore accepted the respondent's plea that he wanted to rebuild his property for his own use and ordered the ejectment of the appellant from the Khokha within one month of the date of this judgment. The appellant then filed an appeal which has now come up for hearing before me.
2. In view of the concurrent findings against the respondent by the Courts below on the question of subletting by the appellant, Mr. Hanafi, learned counsel for the respondent, conceded that he would not be able to press this plea and the only question for consideration in this appeal is whether the respondent is entitled to eject the appellant because he wants to demolish and re- construct his property for his own use. But as I have pointed out, the law with regard to a landlord's right to demolish and reconstruct his property was changed during the pendency of the proceedings under appeal, therefore the first point for consideration is whether the rights of the parties are governed by the provisions or the said Ordinance as they stood when the respondent filed his ejectment application or whether the appellant can rely on the subsequent amendment of the said Ordinance.
3. It is a fundamental rule of our law that "no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication." There is only one exception to this general rule and that is an enactment dealing with procedure. Such enactments are generally deemed to be retrospective and not prospective. As pointed out by the Privy Council in Delhi Cloth and General Mills Co. v.
Income-tax Commissioner, Delhi and another : "..........................While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment."
The principle contained in these observations is too familiar to require further consideration, and Mr. Muhammad Ahmed Mirza conceded that he could not challenge the principle laid down in these observations, therefore he submitted that the amendments in subsection (2) (vi) of section 13 of the said Ordinance were amendments in procedural law and did not affect substantive rights, therefore they were retrospective. In order to appreciate learned counsel's submission it is necessary to consider the relevant provisions of the said Ordinance both on the date when the respondent filed his ejectment application and their subsequent amendment by Ordinance XXI of 1965.
4. When the respondent filed his ejectment application, subsection (2) (vi) of section 13 of the said Ordinance read as follows :- "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 constructing a new building on the same site and has already obtained the necessary sanction for the said construction from the Improvement Trust or the Municipal Corporation, Municipality, Municipal Committee, Town Committee or Notified Area Committee, of the area where such building 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 so satisfied, he shall make an order rejecting the application."
These provisions have to be real with subsection (5) of section 13, which prescribes that if a landlord ejects a tenant under subsection (2), clause (vi) and fiats to construct a new building within the prescribed time, then unless his inability to construct the building within the prescribed time is for reasons beyond his control, he shall be punished by imprisonment which shall extend to six months or a fine. It is important to note that the said Ordinance, as originally enacted, and at1 the date of the respondent's application, did not contain any provision for the re-instatement of the tenant in the event of the landlord's failure to demolish and reconstruct the demised property.
These provisions were amended by Ordinance XXI of 1965 which was enacted on 8th June 1965.
After this amendment, clause (vi) of subsection (2) read as -follows :-- "(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."
Further, two more subsections (5-A) and (5-B) were added to section 13, the effect of which was to confer a limited right on the tenant to the re-instatement of the demised premises.
5. Thus it will be seen that the amendments in the said Ordinance had a two-fold effect. First of all, if a landlord did not demolish his building within the prescribed time, not only was he liable to a fine but the Controller was also entitled to order him to re-instate the tenant in the demised premises.
Secondly, whilst under the said Ordinance, as originally enacted, in order to succeed in an ejectment application, the landlord had only to prove that his building plans had been approved by the local n authority and that he intended to re-build his property, under the amended law not only had the landlord to secure the approval of the local authority for his building plans but he had to show that his desire to re-build his property was reasonable and in good faith. An intention to re-build a property may neither be reasonable nor in good faith, therefore the effect of the amendments in subsections (2) of section 13 of the said Ordinance were clearly to confer benefits on tenants and to impose restrictions on the landlord's right to eject tenants even for the purpose of developing his property. The amendments therefore involved changes in the substantive law and not in procedure. There is also nothing in the amendments to indicate, even by implication, that they were intended to be retrospective, therefore in view of the principle laid down by the Privy Council in the Delhi Cloth and General Mills Company's case, it is clear that the amendments were prospective and not retrospective.
6. However, as I have observed, Mr. Muhammad Ahmed Mirza submitted that the amendments were procedural amendments, therefore they must be presumed to be retrospective. I repeatedly invited learned counsel to show me how the amendments quoted above affected in any way the procedure for filing ejectment applications, but learned counsel was not able to do so. Instead, he referred me to a judgment of the West Pakistan High Court reported in Shuja-ud-Din Qureshi v. Mst.
Husan Ara Begum . The facts in that case were that a landlord had obtained an order for ejectment under section 13 of the said Ordinance against his tenant on several grounds, including nonpayment of rent. The tenant had committed default in the payment of rent in the period before the enactment of the said Ordinance, therefore, in his appeal in the High Court, he advanced the astonishing argument that, as the said Ordinance was not retrospective, he could not be made liable for his admitted default in the payment of rent because that default was for the period before the said Ordinance had come into force. Anwarul Haq, J., as he then was, rejected this frivolous argument and held that the relevant provisions or the said Ordinance were of a procedural nature, therefore they were retrospective. According to learned counsel, the view of Anwarul Haq, J. that the said Ordinance was retrospective because it was of a procedural nature supported his argument that the amendments quoted above were also of a procedural nature and were retrospective. The argument is utterly fallacious. The question before Anwarul Haq, J. was whether the landlord's rights under the general law had been extinguished merely because the said Ordinance had created a new forum for such litigation, namely, the Courts of the Rent Controller instead of the civil Courts. Obviously, therefore, the provisions of the said Ordinance which had to be construed in that case related to procedure only, and this is very clear from the2 following observation of the learned Judge at page 308:-- "The landlord's case is simply one of enforcing a right which had accrued to him under the terms of the tenancy and the Ordinance gave him a forum and a procedure whereby to enforce that right."
On the other hand, in the instant case, the amendments in subsection (2) (vi) curtail the landlord's rights under the general law and do not affect in any manner the procedure governing such litigation therefore the judgment cited completely irrelevant to the instant case. As the amendments in subsection (2) (vi) affect substantive law, they must be presumed to be prospective and not retrospective.
7. Mr. Muhammad Ahmad Mirza then referred me to the judgment of the West Pakistan High Court in Syed Shin Gul v. Haji Abdul Majid . In that case a learned Single Judge of the West Pakistan High Court has held that the provisions of Ordinance XXI of 1965 by which subsection (2) (vi) of section 13 was amended were retrospective. However, a contrary view was taken by another learned Sir gle Judge of the West Pakistan High Court in Mian Taj Din v. Royal Engineering Works . There was thus a conflict of authority in the West Pakistan High Court on the question whether the amendments in subsection (2) (vi) of section 13 were retrospective or not, and I have to decide which of these conflicting authorities is to be preferred. Unfortunately, by a peculiar coincidence, neither the Quetta judgment nor the Lahore judgme it give any reasons for the vie v taken by the learned Judges in their judgments, but the Lahore view is in consonance with the principles for the interpretation of statutes laid down by the Privy Council in the Delhi Cloth and General Mill Company's case, and is therefore to be preferred.
8. I am also fortified in my opinion by a judgment of the Supreme Court in Messrs Amir Din Allah Ditta v. Seth Adamji Abdullah and others on which Mr. Hanafi relied. From the judgment it appears that, as in the instant case, the landlord had filed an application for the ejectment of his tenant under section 13 (2) (vi) of the said Ordinance as it stood before its amendment. That application had been allowed by the High Court of West Pakistan, therefore the tenant had filed the petition for leave in the Supreme Court in which he appeared to have based his case on the provisions of subsection (2)(vi) of section 13, as amended by Ordinance XXII of 1965. In repelling this contention and dismissing the appeal summarily, Sajjad Ahmed, J. observed as follows :- "The argument that the respondent's requirement of the new building was neither reasonable nor bona fide was not relevant to the disposal of the ejectment petition filed under section 13(2) (vi) of the Ordinance aforesaid."
These observations clearly imply that the provisions of Ordinance XXI of 1965 were not retrospective, and the judgment is inconsistent with the view taken by the West Pakistan High Court in Syed Shin Gul's case therefore the Quetta judgment is no longer good law, and the learned District Judge has rightly decided the appeal according to the provisions of section 13 (2)(vi), as they stood when the respondent had filed his ejectment application.
9. As the respondent was entitled to rely on section 13(2) (vi), as it stood at the date of his application, he had only to prove his intention to demolish and re-build his property and to prove that he had obtained the Quetta Municipality's certificate for the re-construction of his property. As it is admitted before me that he had obtained the requisite certificate from the Quetta Municipality, the only question is whether he has proved his intention to re-build his property. In this connection he has said in his evidence that he was running a saloon and Hamams on his property and that his object in re-building the property was to have more Hamams. He further said that he had three sons who could be usefully employed in the proposed Hamams and that he was a very poor man having no other property except a sum of about Rs, 1,000 in cash. As he had already obtained the Quetta Municipality's certificate for re-building his property, I do not see what more evidence was required to prove his intention to re-build his property.
10. However, Mr. Muhammad Ahmed Mirza relied on certain admissions, as he called them, made3 4 5 by the respondent in his evidence, and learned counsel submitted that these admissions were inconsistent with the respondent's alleged intention of re-constructing his property. Thus, for instance, as the respondent admitted that his worldly wealth was limited to the property in dispute and a sum of Rs, 1,000 Mr. Mirza submitted that it was be impossible to re-build the property with Rs, 1,000 therefore the respondent had no intention of re-building his property. But there is no evidence before me of the net cost of the proposed re-construction of his property by the respondent, and I take judicial notice of the loan facilities available to landlords for re-building properties, therefore I am not impressed at all by Mr Mirza's submission. Mr. Mirza then submitted that although the respondent had got his plans approved, the approval had expired in one year and the approval had not been renewed, therefore the failure to extend the approvalas inconsistent with an intention to re-build the property. The appellant did not cross-examine the respondent on this allegation, but common sense suggest that the respondent was awaiting the end of his litigation with the appellant before incurring the expenses of fresh renewals of his plans.
Mr. Mirza also stated that, as the Khokha was a very small portion of the respondent's property, the respondent should have proceeded with the demolition and re-construction of the rest of his property and his failure to do so proved his mala fides. I have to state with regret that this argument is frivolous. First of all the respondent was not cross-examined on this allegation.
Secondly, his property is a very small property and if he felt that it was cheaper or more convenient to demolish and re-build his property as a whole I see nothing unreasonable whatever in his conduct. Finally, Mr. Mirza submitted that the respondent chimed that he needed to re-build the property for his jobless sons, but he had also admitted that his sons were working for him, therefore he had no intention of re-building his property. I am not impressed by the argument. Even if his sons were working for him it is possible that their prospects would improve through the building of more Hamams; and in any case he (the respondent) is the best judge of whether it is more profitable to have a larger hair-cutting saloon or more Hamams. I therefore see nothing unreasonable in the respondent's conduct. He has proved both his intention to re-build his property and also his claim that he requires to do so in good faith for his own use and for the use of his sons. I therefore agree with the view of the learned District Judge, who has set aside, in a well considered judgment, the findings of the learned Rent Controller.
11.Finally, Mr. Muhammad Ahmed Mirza argued that the appellant was entitled to be re-instated in a shop after the property was re-built under the provisions of subsection (5-B) of section 13 to which I have referred, that this would become impossible unless the appeal was allowed, therefore he submitted that, on this ground also, the view of the learned District Judge was erroneous. This objection was not taken before the learned District Judge. Be that as it may, I am not impressed by it. I have already pointed out that, as subsection (5-B) curtails the landlord's rights and confers rights on the tenants it cannot be given retrospective effect. However, even if I am wrong in my view, I do not think this subsection helps the appellant's case in any way. This subsection reads as follows :- "(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 sarae 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."
This subsection is subject to the provisions of subsection (2) (vi) of section 13 which I have already quoted. This means that the landlord has first to prove his requirements under subsection (2)(vi) of section 13. It is important to remember here that the requirement under subsection (2) (vi) is that of landlord only. That was the view taken by the Supreme Court in Ispahani v. Sultan , and although that case had reference to the provisions of the Karachi Rent Restriction Act, 1953, the distinction is immaterial because the relevant provisions of that Act are in pari materia with those of the said Ordinance as amended therefore once it is held that the landlord is entitled to re-build his property, the tenant cannot question the nature of the re-construction "of the old building" on the ground that it would not suit his requirements. That is why the question of the re-instatement of the tenant in the new building has been left to the discretion of the Rent Controller. The respondent cannot therefbre resist ejectment on the basis of subsection (5-B) even on the footing that it is retrospective.
12.No other argument was advanced. The appeal is without merit and is dismissed with costs. The appellant shall hand over vacant possession of the Khokha to the respondent within two months of the date of this judgment. AI R 1927 P C 242 at p. 244 PLD 1964 Lah. 292 PLD 1968 Quetta 45 PLD 1967 Lah. 718 1969 SCMR 131 PLD 1961 SC 76