' FAROOQ ALI CHANNA , J.---The petitioner in this Constitutional Petition has assailed two judgments passed by the VIlth Rent Controller Karachi (South) in Rent Case No,719 of 1998, whereby the petitioner was directed vide order dated 16-3-2010 to' vacate the rented premises and hand over its peaceful possession to the Respondent No,1 and the said order of the Rent Controller was upheld in First Rent Appeal No,210 of 2010 by learned VIth Additional District Judge Karachi (South) the judgment dated 2-11-2011.
2. The background of the litigation was that the respondent No,1 let out the rented premises to the petitioner in the year, 1979 which expired in the month of June 1980 and was not renewed thereafter. However, the respondent No,1 filed an application under section 15 of the Sindh Rented Premises Ordinance 1979 on the sole ground of personal bona fide use of rented premises. The application was contested by the petitioner and the Rent Controller allowed the application, directing the petitioner to vacate. The premises and to hand over the same to the respondent No,l.
The said order was assailed in appeal filed under section 21 of the Sindh Rented Premises Ordinance, which was dismissed and the order of the Rent Controller was upheld. The petitioner has challenged both the orders/ judgments in this constitutional petition as according to the petitioner the orders/judgments were patently illegal and the same were passed without considering, the evidence carefully brought on record and by ignoring the judgments passed by the honourable apex Court on the point of personal bona fide need.
3. Mr. Gohar Iqbal Advocate for the petitioner pressed this petition on two points only i,e, (i) that the rented premises was declared and notified as historical and being maintained by the Sindh Cultural Heritage (Preservation) Department, Government of Sindh and (ii) the respondent No,1 in the pleadings before -the Rent Controller suppressed the fact of having other premises adjacent/surrounding the premises of this case, therefore, the Rent Application was liable to be dismissed.
4. On first point, the Advocate for the petitioner has submitted that the rented premises was taken by the Sindh Cultural Heritage (Preservation) Department. Government of Sindh and was notified accordingly and as soon as the rented premises was declared and notified to be heritage property the relationship between the petitioner and the respondent No,1 automatically stood dissolved as such the provisions of Sindh Rented Premises Ordinance are not attracted to the pleadings.
Learned Advocate has further contended that section 19 of the Sindh Cultural Heritage (Preservation) Act, 1994 (hereinafter referred Act 1994) gives the said Act overriding effect, therefore, the proceedings under Sindh Rented Premises Ordinance are null, void and without jurisdiction.
5. In rebuttal of the above legal issue, Mr. Nafees A. Siddiqui Advocate for the respondent No,1 has contended that nowhere it is provided in Act, 1994 that if the property is notified under the said Act, the rights of the owner shall stand ceased in any manner. He has further contended that the promulgation of said Act 1994 was only to protect and preserve the historical, cultural or architectural build of building and the occupants may be restrained from the change of the face of the building and maintain its outlook and nothing else, as such this Act will not affect the rights of owners in any case.
6. I have considered the arguments and perused the relevant provisions of the Act, 1994. There is no cavil on the powers of Government of Sindh vested in the Act, 1994 to preserve and protect the ancient places situated within Sindh Province. The Preamble of the Act, 1994 is reproduced as under:- "Preamble. Whereas it is expedient to preserve and protect ancient places and objects of architectural, historical, archaeological, artistic, enthonological, anthropological and national interest in the Province of Sindh."
7 In this Act, nowhere rights of the owner are ceased, on the contrary the maintenance of the declared/notified building is to. Be carried out if there is an agreement under Section 8 of the Act 1994 between the owner of the building and the Committee constituted under the Act 1994. It is specifically provided under section 7(4) of Act 1994 that when the Committee has accepted the guardianship of a protected heritage under subsection (3), the owner shall, except as expressly provided in this Act, have the same status, right, title and interest in the protected heritage or object as if the Committee had not been appointed guardian thereof. As such, by declaring/notifying the rented premises under the and the respondent No,1 as tenant and landlord shall not be disturbed and will remain intact unless the rented property is acquired by the Government of Sindh under the Land Acquisition Act in terms of section 12 of the Act 1994.
Furthermore, although this plea has been taken, but factual position was that the petitioner was ,paying rent regularly to the respondent No,1. This act of payment of rent confirms the existence rather admission of relationship as landlord and tenant between respondent No,1 and the petitioner, therefore, the provisions of Sindh Rented Premises Ordinance 1979 are very much applicable.
8. On the other point, it is contended by the learned Advocate for the petitioner that the respondent No,1 has many other properties adjacent and surrounding the rented premises, which fact the respondent No,1 has suppressed in their ejectment application filed under section 15 of the Sindh Rented Premises Ordinance 1979, which shows mala fide on their part. He has further contended that suppression of other properties in the ejectment application before the Rent Controller was sufficient to make the said application liable to be dismissed, but this fact has not been considered either by the Rent Controller or by the Appellate Court. On this point he has relied upon ALLIES BOOK CORPORATION v. SULTAN AHMAD AND OTHERS (2006 SCMR 152). However, he has admitted and accepted the right of owner to select any premises amongst others suitable to establish his business.
9. Mr. Nafees A. Sidduqi in rebuttal has contended that the said point of consequences of suppression of other properties in the proceedings before the Rent Controller as observed in case reported in 2006 SCMR 152, was re-examined later on and it was observed by the honourable Supreme Court that the landlord has only to prove the bona fide need of rented premises and nothing else. He has relied upon the cases of MUHAMMAD ASHRAF JAVAID v. ALLAH RAKHA (2010 SCMR 478) and CAPTAIN PQ CHEMICAL INDUSTRIES (PVT) LTD. v. MRS. ROMANA AMJAD AND ANOTHER (2010 SCMR 837).
10. Besides the above learned Advocate for the respondent No,1 has challenged maintainability of the constitutional petition as according to him the same has been filed without authorization. The learned counsel has further contended that the petitioner is a public limited company and for filing any proceedings, the resolution passed by the Board of Directors of the Company is mandatory requirement. It is also a mandatory requirement that the person signing the pleadings is specifically authorized by the Board of Directors in this respect. This legal requirement is missing in this case. On this point the learned Advocate has relied upon Dr. S.M. Rab v. National Refinery Ltd.
(PLD 2005 Karachi 478). Learned counsel has further contended that the company which passed the Resolution for the proceedings under adjudication is not their tenant and the same is stranger company. Learned Advocate has further contended that their rent agreement was with the petitioner International Computers Limited (ICL) a company incorporated in the United Kingdom and carrying on business inter, alia at Karachi and some other place in Pakistan whereas, Resolution for this petition was passed by a different company carrying their 'business with the name and style ICL International (Pvt) Ltd. Having office at Suite No,502, Regency Plaza, M.M. Alam Road, Gulberg II, Lahore, Pakistan. Learned counsel has further contended that this sole ground is sufficient for dismissal of the constitutional petition.
11. I have considered the arguments and perused the record. Besides the legal objection of learned Advocate for the respondent No,1 regarding the maintainability of the Petition filed on the basis of Resolution passed by the Board of Directors of a stranger company, I have also gone through the observations passed in the case of ALLIES BOOK CORPORATION v. SULTAN AHMAD AND OTHERS (2006 SCMR 152), relied upon by the petitioner. The relevant para is reproduced as under:--- "We are mindful of the settled law that it is the prerogative of the landlord to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of the landlord to give plausible and satisfactory ground/ explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use. From perusal of the material on record it transpires that not a single word has come from the respondent as to why the shop on the first floor, which is in their occupation would not be sufficient and would not meet the demands of the business sought to be established by respondent Mansoor Ahmed. With regard to Shop No,6 on the ground floor the respondents even did not make a mention of the same having fallen vacant and let out during the litigation going on between the parties. The respondents instead of providing plausible, satisfactory and cogent grounds for not occupying the shops which had become available for occupation did not even disclose the factum of a shop on the ground floor having become vacant which completely negated their good faith and bona fides."
12. Bare perusal of the above principle reveals that the honourable Supreme Court negated the good faith and bona fide of the landlord due to non-disclosure of shop lying vacant in pleadings, whereas, in the 'instant case nothing has come on record that any property belonging to the respondent No,1 was lying vacant. Learned Advocate for the petitioner although during the arguments invited the attention of this Court towards cross-examination of the Attorney of the respondent' No,1 and has stated that the witness has admitted in cross-examination about the premises belonging to the petitioner available adjacent to the rented premises, but this fact was not mentioned in the ejectment application. I have also gone through the cross-examination in the light of submissions made by the learned Advocate for the petitioner. In the cross-examination although the witness has admitted that there is a building situated adjacent to the premises in question but the same is being used as record room of the hank. This shows that the said building is not lying vacant and is being used as record room by petitioner. Furthermore it is a settled principle of law, recognized by the honourable apex Court that it is the exclusive prerogative of the landlord to choose any building amongst others suitable for expanding or establishing the business and nobody including the tenant of the premises required for personal bona fide ,use, can insist/ suggest any other premises to the landlord for his business then, disclosing or not, the other building belonging to him in the ejectment proceedings would be immaterial.
13. It has further come on record as pointed out by the Advocate for the respondent No,1 that the premises in question was rented out to the petitioner and at that time the respondent No,1 had very limited business activities, but later on they expanded their business and at present there are about 400 Branches belonging to the respondent No,1 functioning all over the country. It has also come in evidence that out of 400 business places they have only 30 offices in their own buildings whereas rest of the offices of the respondent No,1 are functioning in the rented premises. As such, the respondent No,1 prima facie has made out a case of requiring the rented premises for their personal bona fide use. Accordingly, the findings of both the Courts below does not suffer from c any illegality which attracts the interference of this Court. The constitutional petition is dismissed.