1. ZAFFAR HUSSAIN MIRZA, J.-Leave was granted by this Court in this case, vide order, dated 27-5- 1980, to examine the question of law, whether the respondent/tenant was entitled by virtue of subsection (5-B) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959, to be put in possession of the same area as was in his occupation in the new building after its reconstruction on the same site, "exactly on the same spot where the old shop vacated by him was situated".
2. The facts are that the appellants are the legal representatives of one Ahmad A.I, who owned the property in dispute, which is situated on Lawrence Road, Karachi. In June, 1966, Ahmad A.I filed an ejectment application against the respondent, who was the tenant of a shop in the said building, on the ground that he wanted to reconstruct the building, under section 13(2) (vi) of the Sind Urban Rent Restriction Ordinance, 1959 (to be hereinafter referred to as the Ordinance;). This application was based on a building plan duly approved by the relevant authorities. By his order, dated 12-8- 1967, the Rent Controller allowed this application and in pursuance of the said order, the respondent handed over the demised premises to Ahmad A.I. The latter demolished his property and reconstructed a new building on the same site in accordance with the approved plan. The respondent thereupon filed an application under section 13(5-B) of the said Ordinance seeking an order to direct the appellants, who had succeeded Ahmad A.I on his death as the landlords, to put him in possession of a shop in the reconstructed building on the precise location on which the shop previously leased .To him had been situated. It may be pertinent to point out that the old shop was located on the front side of the building, but in the reconstruction plan, which was duly approved, the shops were on the back side of the building, whilst the front side was constructed for office accommodation. In this situation, the appellants offered the respondent a shop in the back side of the new building, which offer was refused by the respondent, who insisted to have a shop exactly on the same plot where the old shop vacated by him was situated". The Rent Controller allowed the respondent's application and fixed the rent of the premises to be leased to the respondent at Rs. 60 per month. Appellants challenged the order of the Rent Controller in appeal before the District Court, and this appeal was allowed by the Additional District Judge, Karachi by his judgment, dated 2-8-1973, holding that the respondent was entitled to be put in possession of the tenement offered to him by the appellants, but as regards the rent to be paid by him the .Case was remanded to the Rent Controller for a fresh determination thereof. Aggrieved by this judgment, the respondent filed a Second Appeal in the Sind High Court. This appeal was allowed on 10-5-1980. The learned Judge, who heard the appeal, held that the respondent was entitled to a shop "exactly on the spot where the old shop vacated by him was situated". The appellants then moved this Court for special leave to appeal, which was granted as already observed to examine the question referred to above.
3. PLD 1978 SC 78) in the following words :- "The question, however, is whether the law prevents a non-residential building from being reconstructed into a residential one. Mr. Noori's is contention is that if this is permitted then the provisions contained in subsection (5-B) of section 13 of the Ordinance would be rendered nugatory as in that case the tenant of a non-residential building could not, obviously, ask to be put into possession of the new building owing to the change in its character. The learned counsel, therefore, thinks that the provisions contained in a clause (vi) of subsection (2) of section 13 should construed as being subject to subsection (5-B) thereof.
4. We regret we cannot subscribe to this line of reasoning, as we find that clause (vi) of subsection (2) of section 13 of the Ordinance does not, by itself, impose any restriction or limitation as to the nature and purpose of the new building which is to be reconstructed in place of the old building. If this clause is to be read as being subject to the provisions of subsection (5-B) of the same section in the sense that the nature and character of the building cannot be changed by reconstruction, then the results would be to prevent future develop--ment of property even though its environment and the requirements of the community at large, may have changed. Such an interpretation would be altogether unreasonable and against the public interest, and should be avoided unless the words of the statute are so clear and unambiguous as to make it inevitable.
5. This does not appear to be the case here."
6. Reference was also made to a similar view taken earlier in Abdul Manan v. Haji Karam Elahi and another (PLD 1971 Quetta) in which Dorab Patel, J. (as he then was) observed :- "Once it is held that the landlord is entitled to re-build his property, the tenant cannot question the nature of the reconstruction "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."
7. Subsequently, the same learned Judge sitting on the Supreme Court Bench held a similar view in Ghulam Nabi v. Mushtaq Ahmad (PLD 1980SG206), in which the learned Judge observed :- "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 hire, 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 its occupation by anotherperson. 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 tenant can terminate his lease unilaterally, it would be extremely unjust and unreasonable if the landlord's right to re-build and develop his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the Legislature."
8. 1979 SCMR 396), however, the facts were that the tenant was in occupation of the shop in the old building 11' x 30' on the ground floor and after the reconstruction of the building, he having failed to obtain his re-instatement in the reconstructed building, applied to the Controller under section 13 (5-B) of the Ordinance, who ordered that he should be put in possession of an area equal to the one previously occupied by him in one of the shops in the new building. It was contended that if this area is separated from the rest of the area comprised in the newly- constructed shop, the remaining area comprising only 70 square feet would be unsuitable for use on commercial basis.
9. The contention was repelled in the following words "Now by advancing this contention the learned counsel. Seems to have raised a moral than a legal question. The petitioner should have realized, that ignorance of law is no excuse, that under section 13 (5-B) of the Ordinance, late Muhammad Siddique, who was his tenant in the old shop since 1914, would have naturally expected to be put into possession of a new shop constructed on the old site or else of the corresponding area in any other shop. In this view of the matter he should have either constructed a new shop of the same size or else big enough which would have been conveniently partitioned so that both the portions of it could be used as a feasible commercial enterprise.
10. (Under--lining is mine)."
11. The underlined portion illustrates that the requirements of sub--section (5-B) of section 13 are not totally irrelevant in the matter of reconstruction of a building by the landlord.
12. Now the argument on behalf of the appellants is that, in pursuance of his well-recognized right to reconstruct the building in the manner desired by the landlord, the building in this case was reconstructed to provide for office accommodation on the front side abutting the road, which has been occupied by the appellants themselves for their own use as an office and this portion of the new building cannot be used for purposes of a shop. Therefore, it is further argued, the respondent cannot insist to occupy any area at the original place where the shop occupied by him stood in the old building. It is pertinent first to refer, in this respect the observation made by the Rent Controller in his order, dated 12-8-1967, whereby the application for ejectment of the respondent was granted :- "The opponent has failed to rebut the applicant's evidence. He has also examined himself and admitted to vacate the shop if it is reconstructed within 6 months as he has three children and this shop is the only source of his livelihood. In this respect the applicant has agreed in his deposition that he would get a shop to the opponent in the new construction within about a year's time.
13. Thus, the old premises were vacated by the respondent on an agreed arrangement that he will be put in possession of a shop in the new building. The argument that the respondent having consented to vacate the premises on the basis of the building plans which made no provision of a shop on the same location where the shop occupied by him was situated, must be deemed to have agreed to occupy a shop in another part of the building, had no force, as there is nothing on the record to show that the respondent had positively agreed to occupy the shop on the back side of the building. The inference suggested by the learned counsel is not normally expected to be easily attributed to a tenant which would have obviously resulted in depriving him of the right to occupy the advantageous position of a shop situated on the road side.
14. There can be no cavil against the dicta laid down in the case of Abdul Bari Abdul Manan and Ghulam Nabi cited by the learned counsel, that the landlord is in no way required by law to reconstruct the new building so as to provide the evicted tenant exactly the same type of building or accommodation as occupied by him earlier or in any way to keep his needs into consideration.
15. However, as pointed out in Ghulam Haider's case, the landlord is required to take into consideration the rights conferred by sub--section (5-13) of section 13 of the Ordinance on the tenant so that the new construction is capable of accommodating the tenant. Subject to this restriction the landlord is free in the matter of nature and type of construction for purposes of the new building. Subsection (5-B) of section 13 of the Ordinance may now be set out for convenience of reference :- "13 (1) ------------------------------------------------------------------------------------ ---. To (5-A)------------------------------------------------------------------------------------ ------.
16. (5-B) Where, in pursuance of an order under clause (vi) of subsection (2), a landlord has obtained possession of a building (in this sub--section referred to as the old building), and constructs a new building on the same 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."
17. The plain reading of this subsection shows that the law confers a right on a tenant evicted in pursuance of an order under clause (vi) of subsection (2) of section 13 to be re-instated in the reconstructed building. But the question of the quantum of the area to be given to the tenant, is a matter within the discretion of the Rent Controller to be determined after taking into consideration the location and type of the new building and the needs of the tenant. Clearly, therefore, it is not for the landlord to offer the same or smaller area anywhere in the new building. In the present case the Rent Controller proceeded on the basis that the law gave the tenant the right to be re-instated in an area equal to the area occupied by him in- the old building or less but at the site at which his original tenement was situated. The learned Additional District Judge disagreed with this interpretation of the provisions of subsection (5-B) for the following reasons which may be reproduced in his own words :- "Now, if the new building has a larger shop which covers the area of the tenement of a tenant, then obviously the tenant cannot ask that he should be given possession of it because section 13 (5-B) clearly lays down that the tenant may ask the Controller for delivery of possession of an equal area or a smaller area than his previous tenement. He cannot ask for a larger area. If the interpretation put by the learned Rent Controller is accepted, then there will be a deadlock. The learned Rent Controller could simply not deliver the possession of larger shop to the tenant because he had no power to do so and yet he must deliver to the tenant that precise spot which was occupied by him in the previous building. The only absurd way out would be for the Rent Controller to order the partition of the larger shop. This again will be an impracticable thing because the larger shop may not be capable of partition and there is no provision in the Rent Restriction Ordinance authorising the Rant Controller to partition any tenement in this manner."
18. Out of the two interpretations, on a proper analysis of the provisions of subsection (.5-B) in the context of the other provisions of the Ordinance, it may be possible to uphold the interpretation adopted by the learned Rent Controller, but we think that it is not necessary to go into this question, The question for decision is whether the High Court has properly exercised its discretion to hold that the respondent its entitled to be accommodated in the portion of the building which now stands at the place where the shop in the old building was situated. In this behalf the learned Single Judge has put the position very succinctly in the following words "5. Now, to begin with the aforesaid subsection must be read in conjunction with clause (vi) of subsection (2) of section 13 and so read it is clear that other things being equal, the landlord is obliged to put the tenant in possession of the new premises as nearly as it may be possible on the same site which was originally occupied by the tenant. If the new premises happens to be less in area the tenant cannot complain nor can he make any grievance if the restoration to the original site was not possible or practicable by reason of the nature or type of newly-constructed building.
19. The aforesaid subsection obliges the Rent Controller to take into consideration the needs of the tenant. It therefore, follows that in the absence of compelling circumstances the tenant cannot be denied restoration to the original site. If the londlord is given unrestricted discretion to give one or other premises in the newly-constructed building to the evicted tenant, the tenant's right to restoration may become illusory making the subsection redundant."
20. The view taken by the learned Additional District Judge is diametrically opposed to the view expressed in the cited passage from the case of Ghulam Haider v. Muhammad Hanif, referred to above and cannot, therefore, be accepted. The learned Single Judge has very painstakingly examined the facts of the case which -would appear from the following passage :- "8. In the present case it may be noticed that there was no difficulty in re-instating the tenant in a shop premises at the same site where the original shop stood after the building was reconstructed.
21. In fact, the landlord had now so manoeuvred himself and created a cause for denying to the tenant his right to reasonable re-instatement in the new building. The learned counsel conceded that originally there were three non-residential premises facing the main road, which included the shop of the tenant, an office occupied by the landlord and another small shop, together with a passage. What the landlord did was to create a large non-residential premises on the ground floor by including the portion which was originally occupied by him and the small shop tenanted by another person under a private arrangement, and let out the whole premises to a Bank obviously to his great advantage and then moved in the adjoining newly-constructed shop premises where stood the old shop premises of the tenant who was in lieu thereof offered a shop with no frontage at all, much or less on the train road for its access is through a common passage. Furthermore, it may be noticed that the landlord did not claim in his eviction application any premises in the proposed construction for his personal use. In the present case a reasonable premises was available in which the tenant could have been justly and fairly inducted but Instead the landlord managed the situation with a view to obtain for himself an advantage, and he, therefore, cannot now be heard to say that I will occupy the shop premises on the front side for use as office and let the tenant, who is a shopkeeper by profession have a premises at the back which cannot at all be used as a shop premises. The two cases referred to, therefore, are clearly distinguishable."
22. We are in agreement with the conclusion reached by the learned Single Judge and find no reason to interfere with his judgment. In the result, this appeal fails and is accordingly dismissed. But in the circumstances, there shall be no order as to costs.