1. MUHAMMAD APZAL ZULLAH, J.-This appeal through special leave calls in question judgment dated 15-8-1978 of the Sind High Court whereby in second appeal of the respondent (landlord) arising out of a matter under West Pakistan Urban Rent Restriction Ordinance, 1959 was allowed and the appellant (tenant) was ordered to vacate the shop in question and hand over its possession to the respondent on the grounds that (a) it was required for the use of the son of the respondent ; and
(b) that it was required for reconstruction ; as envisaged by subsection (3)(a)(ii) ; and sub-- section (2)(vi) respectively of section 13 of the Ordinance.
2. The facts of the case are briefly, that "Yasin respondent who is the owner/landlord of a shop in Sukkur had let out the shop in dispute to Dawood (the appellant in the present appeal). He (i.e. Yasin) filed an application for the ejectment of the appellant from the said shop in the Court of the Rent Controller, Sukkur; on the ground of (i) default in payment of rent, (ii) reasonable and bona fide requirement of the shop for his son. The learned Rent Controller rejected the allegation of default but came to the conclusion that the other two grounds upon which the ejectment of Dawood was sought were sound and consequently ordered his ejectment. The tenant appealed against this order and the learned first appellate Court held that the respondent's son was already running a shop and consequently the shop of which Dawood was the tenant was not bona fide required by Yasin for his son. It held further that there was no evidence to show that the shop was in a dilapidated condition so as to require reconstruction. On these findings it accepted the appeal and set aside the order of eviction. Yasin respondent then filed an appeal before the High Court which accepted the appeal and reversed the decision of the first appellate Court". Hence this appeal.
3. Leave was granted to consider the legal question as to whether the two pleas taken by the respondent (landlord) under two different provisions of the Ordinance, furnished such grounds for eviction of the appellant, which are mutually destructive. A related question is whether if otherwise the bona fides of the respondent and remaining 'conditions regarding both the grounds are satisfied, the appellant could not be evicted because the respon--dent combined these grounds in one application and trial. This very plea was raised before the learned Single Judge of the High Court who while dissenting from the view taken in Sheikh Mohammad Yusuf v. Mst. Zohran Bibi PLD 1973 Pesh. 186 which has been relied upon from the appellant's side in this Court also, held that the two pleas/grounds are not mutually destructive. It has also been held that compliance with subsections (4), (5), (5-A) and (5-B) of section 13 of the Ordinance does not pose insurmountable difficulty ; because the possession on the landlord side could be taken for a short period or even in symbolic form so as to comply with subsection (4) and thereafter the building could be demolished and reconstructed within the period specified in subsection (5)-the same being "exactly the plea of the appellant (respondent herein) who has all along seated that he wants the possession of the premises so that he can reconstruct them and thereafter his son can run business therein".
4. It is correct that after posing the question whether the provisions contained in subsections (4), (5), (5-A) and (5-B) of section 13 could be satisfied if the ejectment is . On both the grounds of personal use and reconstruction, the learned Judge in the High Court dealt with only two of them; namely, subsections (4) and (5), but after carefully examining the effect of all these provisions, it would be found that subsections (5-A) and (5-B also do not present any serious difficulty. If the eviction is ordered on ground of personal use under subsection (3) the consequential provisions contained in subsection (4) would require the person for whose benefit eviction has been ordered to occupy the premises within one month of the date of obtaining the possession. He is further required not to let out the property within the next two months to any person other than the original tenant. If either of these two conditions are contravened, the original tenant would be entitled to the restoration of possession.
5. If the eviction is under clause (vi) of subsection (2) of section 13 on ground of reconstruction or erection of the. Building the consequences ensuing therefrom which are laid down in subsections (5), (5-A) and (5B), would require-(a) that the landlord shall demolish the property with four months from the date of taking possession ; and (b) that he would also be required to reconstruct or erect the building within a further period of two years. If the landlord fails to comply with these requirements, he would be liable to be punished under subsection (5). And, in case he is convicted, the original tenant would be entitled to seek restoration of the possession under subsection (5-A) unless of course in case of a building the same ha been demolished. On the other hand, if the landlord after obtaining the possession in pursuance of the order of eviction under subsection (2)
(vi) satisfies the condition with regard to reconstruction or erection of the building on the same site, the tenant would be entitled to seek a direction from the Controller under subsection (5-B) that subject to the payment of appropriate rent, he be put in possession of such area (in the new building g as might be equal or less than the area occupied by him in the old building) which would be appropriate keeping in view the location and type of the new build--ing as also the needs of the tenant provided that the tenant makes an appli--cation before the completion of the new building "and its occupation by another person".
6. The foregoing analysis of provisions contained in subsection (4) read with section 13(3)(a) and subsections (5), (5-A) and l5-B) read with subsection (2)(vi) of section 13 of the Ordinance clearly shows that in case of eviction on ground of personal use, the property would normally be occupied by the person concerned (the landlord, child or children) within one month of the relevant date, and if this is not done, the tenant would be entitled to seek restoration of possession. In a case where the other person occupies the building within one month but it is re-let within two months, even then the tenant would be entitled to seek restoration of possession. Thus the tenant's interest would remain protected for a period of two months if the eviction is under subsection (3) of section 13 of the Ordinance. This period is much more if the eviction is under clause (vi) of subsection (2) of section 13, i.e. Four months (for demolition) and two years thereafter (for purpose of re-- construction/erection). The landlord, who has not contravened subsection (4), vis-a-vis the ground of eviction relateable to personal use of the property which has already come under his occupation or that of his child/children, would be required to demolish the building within a short period of occupa--tion (which would not exceed four months from the date of taking of possession) for purpose of satisfying conditions regarding eviction on ground of reconstruction.
7. Undoubtedly if the building plans are such that after the occupation if the property occupied has been vacated for purpose of construction, this would not mean any .Contravention of any of the provisions of section 13. The landlord would be entitled within a period of next two years to complete the building even if during this period he remains out of occupation of the whole or part of the property. Thus the question of penalty provided in subsection (5) and consequences of conviction which would benefit the tenant under subsection (5-A) would not arise. The only question which remains to be examined is whether subsection (5-B) which protects the interest of the tenant after the building is completed, presents a difficulty indicative of any clash between the interest of the landlord and tenant on account of the eviction being on both the grounds, namely, personal use and reconstruction. The seeming clash which was highlighted in the Peshawar judgment in the case of Sheikh Muhammad Yusuf would on proper scrutiny, be found to be unreal.
8. These provisions show (if the foregoing analysis is kept in view, according to which in a normal case), that the property, having already been occupied from the side of the landlord on ground of personal use, has already been reconstructed/erected thereon in satisfaction and pursuance of subsection (5). For occupying it if the tenant makes an application, he would not be able to satisfy the essential condition that no one else should by that time have come in occupation. The person occupying from the side of the landlord would be in lawful occupation in both cases if after occupying the original premises within a month of the relevant date he continues in physical possession and/or having occupied the premises vacates the same temporarily for purpose of demolition, reconstruction or erection of building. Thus the essential condition of subsection (5-B) of section 13 would not be satisfied insofar as the application of the tenant is concerned provided if the landlord has already fulfilled the essential condition under subsections (4) and (5). On the other hand, if the relevant condition(s) under the said provisions have not been satisfied by the landlord, the tenant would not only be entitled to seek a remedy(s) under the said provision(s) but also in case of completion of the building would be entitled to seek the protection of his interest under subsection (5-B).
9. Looked at from whatever angle (a) of principle, which, as would be shown presently, already stands settled in several rulings of the superior Courts, and also (b) of interpretation and analysis of the relevant provision of section 13 of the Ordinance, the eviction of a tenant on both the groundsof personal requirement and reconstruction in same proceedings, would not be illegal, as the two grounds are not mutually destructive.
10. The two decisions of this Court which were referred to by the Peshawar High Court in the case of Sheikh Muhammad Yusuf are : Abdullah Baloch v. Adam Ali (1), and Messrs Amir Din Allah Ditta v.
11. Seth Adamj! Abdullah and others (2). Both of them were referred and considered in Abdul Bar! v.
12. Khadim Hussain (3) and it was found that the decision in the case of Abdullah Baloch could not be interpreted "as laying down the principle that the plea of reconstruction, and that of personal requirement are mutually destructive of each other ; on the contrary the judgment in this case indicates that the two can certainly be linked together . . . . . ." Regarding the case of Messrs Amir Din Allah Ditta, it was found that the observations made therein were rightly followed by the Lahore High Court in Khuda Bakhsh v. Muhammad Yousaf (4), the law laid down wherein was considered as un--exceptionable, because as observed then by this Court (in Abdul Bari's case), the contention that the pleas of reconstruction of a building and its consequent requirement for the personal need of the landlord are mutually destructive of each other, is not supported by authority.
13. On the contrary,
(1) PLD 1961 SC 28(2) 1969 SCMR 131
(3) PLD 1978 SC 78(4) PLD 1976 Lab. 275 if the landlord spells out a sound reason for the reconstruction of the building, it should re-enforce his case on this account rather then destroy the same." The foregoing examination of the three decisions in the cases of Abdullah Baloch, Messrs Amir Din Allah Ditta and Khuda Bakhsh would show that the view taken in the Peshawar case of Sheikh 1 fuhammad Yusuf was not correct. It might be mentioned here that the Peshawar High Court itself in a latter Division Bench judgment Badar and Brothers (Arms and Ammunitions Dealers), Peshawar v. Muhammad Aslam and 2 others (1) dissented from the view taken by the learned Single Judge of the Court in Sheikh'
14. Muhammad Yusuf' s case.
15. The same question came under re-examination by this Court in some--what different circumstances in Messrs Ismail Brothers v. Kewalram (2) and Sh. Abdul Aziz and others v. Kh.
16. Hasan Joo and 5 others (3). In the latter case, the objection with regard to possible conflict resulting from implemen--tation of subsections (4), (5), (5-A) and (5-B) of section 13 of the Ordinance was considered and it was observed that "while subsections (4), (5-A) and (5-B) of the West Pakistan Urban Rent Restriction Ordinance, 1959, provide sufficient safeguard of the rights of the tenants, subsection (5) of the said section also provides sufficient guarantee that the landlord shall reconstruct the building after it is got vacated through the Court ; because he would not only have to put back the tenant in possession, but shall also be liable to undergo a sentence of imprisonment. As such, the mere fact that the landlord has made an ejectment application with full knowledge of the liability imposed 4.By the aforementioned provisions of law is sufficient to demonstrate the bona fides of his intention to reconstruct the premises in question after getting it vacated".
17. Subsection (5) of sections 13 came up for consideration and interpretation in a different context in Ghulam Nabi v. Mushtaq Ahmad (4). The rule then laid down by this Court would further strengthen the view so far consistently held that the landlord's right to seek eviction on the grounds of personal requirement and reconstruction is not destroyed merely on the so called assumption that the said two grounds are mutually destructive. A question was raised that while reconstructing a building the landlord had to keep in view the needs of the evicted tenant, because he was entitled to seek restoration of the possession. Of an appropriate area in the reconstructed building. After noticing the argument of the learned counsel that the landlord was not entitled to evict the tenant under section 13(2)(vi), because of the protection afforded to the tenant under section 13(5-B), "as the garage which the respondent (landlord) wanted to build does not suit the petitioner's. (tenant's) needs", while overruling the view expressed in Bashir Hussain and another v. Sh. Muhammad Saeed and 2 others (5), it was observed that, there was no ambiguity about the words `reasonable' and `bona fide' and if for example, the effect of the reconstruction is substantially to develop and improve the property, the landlord's requirement is bona fide and reasonable. After mentioning the reported cases it was further observed that if on the other hand the Legislature had intended to relate the reconstruction of building to the tenant's requirements, it would have enacted accordingly; but it has not. Then after quoting subsection (5-B) which was inserted
(1) PLD 1977 Pesh. 80(2) 1980 SCMR 776
(3) 1981 SCMR 924 (4) PLD 1.980 SC 206
(5) PLD 1976 Lab. 1095 in section 13 by the amendment Ordinance (XXI of 1965), it was held as follows :- "This subsection only confers a right on a tenant to a lease of the demised premises after their reconstruction, and as the Controller is empowered to lease to the tenant in the new building a smaller area than the premises originally demised to him, this express provision is inconsistent with the proposition that a landlord can reconstruct his property only in accordance with the needs of his tenant. Secondly, the option conferred on the tenant by this subsection continues until the completion of the new building and as occupation by another person. In view of the laws delays, this can only be many years after the landlord's reconstruction plan has been approved by the local Municipality, therefore, the plea that the landlord's re-building plan must conform to his tenant's requirements would lead to absurdity. Thirdly, whilst a landlord cannot evict his tenant except on the grounds prescribed in the said Ordinance, a tenant is free to vacate the demised premises after giving the contractual or statutory notice. As a tenants can terminate his lease unilaterally, it would be extremely unjust and unreasonable if the landlord's right to rebuild and develop his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the Legislature.
18. Looking at the matter from another angle, it must be borne in mind that the said clause was amended during the pendency of Fundamental Rights and Fundamental Right No. 13 of the 1962 Constitution guaranteed to every citizen the right to acquire, hold and dispose of property subject only to reasonable restrictions in the public interest. Now, a restriction that a landlord can evict his tenant for the purpose of reconstruction only if the effect of the reconstruction is substantially to develop and improve his property is a reasonable restriction on the right to hold property. But, if the landlord's right to rebuild his property is subject to the veto of a tenant, who can vacate the demised premises at any time by giving notice, this would be an extremely unreasonable restriction on the landlord's right to hold, acquire and dispose of property, and a law containing' such a res--triction would have been void in view of Article 6 of the Constitution. Therefore, even on the assumption that the words `reasonable' and "bona fide" are capable of the construction sought to be placed upon them by learned counsel, we should prefer that construction which avoids any unconstitutionality in legislation. Accordingly, on this ground also we are unable to accept learned counsel's submission."
19. While commenting upon the ratio in the Lahore case of Bashir Hussain, it was further observed that-"additionally at the point of being tedious, we would repeat that the words reasonably and in good faith in rent legis--lation have been construed by the Courts over a period of more than half a century, and the tests for determining the reasonableness and the bona fide of a landlord's claim to rebuild his property are objective tests. Thus, for example, if a property is in a dilapidated condition, the landlord's desire to rebuild it will necessarily be reasonable and bona fide, and this desire would not cease to be bona fide merely because the landlord tried to defeat his tenant's rights. No doubt, a landlord's refusal to give a fresh lease to the tenant is illegal, but this cannot alter the fact that the desire to rebuild a dilapidated property is a bona fide desire. Again to take another example, if a bungalow is replaced by block of inultistoreyed flats is not possibly be argued that the landlord's desire to replace a bungalow by a multistoreyed block of flats is not reasonable and bona fide. Now, in such a situation, even if a landlord tries to defeat the tenant's rights under subsection (5-B) the strong arm of the law is strong enough to prevent him from defeating his tenant's rights but this would not by itself convert a bona fide claim into a mala fide claim the moreso, as the interests of the tenant are protected by subsection (5-B), whilst the development of property is in the national interest and is in no way inconsistent with the objects of the rent laws.
20. Therefore, with all respect to the learned Judge we are unable to agree with the observations on the scope of subsection (5-B) (in the case of Bashir Hussain) and we see no merit in learned counsel's submission".
21. It will not be out of place to mention here that the view taken in Ghulam Nabi s case with regard to the scope of subsection (5-B) of section 13, vis-a-vis the right of the tenant to re-occupy the new building was in reality a reiteration of what had been earlier held in this behalf in Abdul Bari's case.
22. While criticising the reasoning in the case of Bashir Hussain and distinguishing the same from the facts in the case of Abdul Bari, this Court then held that clause (vi) of subsection (2) of section 13 of the Ordinance read with subsection (5-B) thereof does not by itself impose any restriction or the limitation as to the nature and purpose of the new building which is to be reconstructed/erected. If clause (vi) is to be read as subject to provisions of subsection (5-B) in the sense that the nature and character of the building cannot be changed then the result would be to prevent future development of property even though it its enforcement and the requirement of the community at large may have changed. Such an inter--pretation would be altogether unreasonable and cannot be in the public interest and should be avoided unless the words of the statute are so clear and unable as to make it inevitable. But this not being so, the ground of reconsideration does not limit the scope in this behalf so as to require that the reconstructed building should be of the same type and character and for the same purposes, namely, residential or non-residential as the case may be. The provisions of subsection (5-B) would control clause (vi) of subsection (2) only to the extent that if the reconstructed building is of the same type and character and suitable for the same use as was the old building; the tenant would have the option as provided in subsection (5-B) and not to the extent, if otherwise it was a reasonable and bona fide requirement, to prevent a conversion by reconstruction of one type of building into another." The ratio of both the decisions in the case of Abdul Bart and Ghulam Nabi on purpose. Interpretation and scope of subsection (5-B) would show that while attempting to protect certain interests of the tenant, it does not confer on him such rights which negate the right of the landlord to develop and utilize the property for purposes beneficial to him in reasonable and bona fide manner.
23. In the light of the foregoing discussion, we reiterate the view that the grounds of personal use, reconstruction and requirement as contained in subsections (2) and (3) of section 13 of the Ordinance are not mutually destructive. The legal argument raised from the appellant's side in this case, therefore, has no force. Learned counsel for the appellant tried also to reagitate the questions of fact which are mlateable to the appreciation o C evidence with regard to the merits of the decision by the High Court that the respondent-landlord had succeeded to establish both the grounds. (a) h bona fide required the shop in question for use of his son, and (b) he also reasonably and bona fide required the shop for reconstruction. Leave was not granted on these questions and after hearing the learned counsel, we do not consider it a fit case for re-examination of the factual aspect of the case. This appeal accordingly fails and is dismissed, but there shall be no order as to costs.