This first appeal is by Mst. Sheerin Bai, the landlord against the order of the Rent Controller, Rawalpindi, Cantonment, dated 6-7-1986 by which the learned Rent Controller dismissed the eviction application filed by the appellant.
2. The brief resume of the case is that on 28-8-1983 Mst. Sheerin Bai, herein the appellant, filed an application for eviction under section 17 of the Cantonments Rent Restriction Act (Act No. XI of 1963) against Tassadaq Mahmood, herein respondent, on the sole ground of reconstruction. It was averred in the application that Tassadaq Mahmood was a tenant in Shop No. 238 at the rate of Rs.
400 p.m. The application was resisted. An objection was taken to the effect that the respondent has invested Rs. 25,000 on repairs with the consent of the landlord. The mala fides was imputed to the application.
3. The learned Rent Controller framed as many as five issues but by order dated 6-7-1986 dismissed the petition on account of his findings on issues Nos. 1 and 2. The learned Rent Controller came to the conclusion that the application was barred by section 14 of Act XI of 1963.
4. Learned counsel for the appellant as well as the learned counsel for the respondent have confined their submissions on issue No. 1 only. It was contended that the findings of the Rent Controller were totally incorrect and illegal. The non-compliance of section 14 of the Act did not take away the right of the landlord to secure ejectment of tenant on the plea of reconstruction.
Reliance was placed upon Muhammad Ibrahim v. Mst. Surraya Sultana (PLD 1966 Lah. 406) and Farooq Ahmad Bhatti v. Ghulam Haider and another (1983 CLC 403).
5. On the other hand, learned counsel for the respondent/tenant argued that the application was not competent within the framework of sub-clause (vi) of clause 2 of section 17 of the Act. He contended that clause (c) contained the word "building" for the construction of a new building on the same site. It was urged that the word `building' meant only one building. Elaborating his submissions, the learned counsel contended in this case that the building comprised of three shops which were in possession of three tenants, and the appellant had filed three separate applications against the three tenants. It was argued that the applications were incompetent as the landlord had a right to file application in respect of one building only.
6. It was next contended that the sanction obtained by the appellant had expired as Cantonment Board had granted the sanction only for a period of one year. Therefore, the sanction had come to an end under section 183 of the Cantonments Act of 1924, hence the application had been rendered infructuous.
7. I have gone through the argument of the learned counsel for the parties and the record has been perused by me. I proceed to examine the respective contentions of the parties. After the examination of the record I have come to a conclusion that the arguments of the learned counsel for the appellant have force. The learned Rent Controller on issue No. 1 observed as follows:- "Since the petitioner has not obtained any permission from this Court for conversion of a commercial building into a partly residential building under section 14 of the Act, therefore, the building plan at P-1 is defective to the above extent and, therefore, I conclude that the petitioner has not fulfilled the requirements as prescribed in the Act. Law does not require this Court to take stock of bonafide or mala fide intention of the petitioner in case of reconstruction and therefore, rest of the points raised in the cross-examination and arguments may not be taken into account.
This issue is, therefore, decided against the petitioner."
8. Section 14 places a restriction on the conversion of a residential building into a commercial building and vice versa but it does not constitute a ground for resisting an application in which ejectment has been sought on the ground of reconstruction. In the above-quoted Muhammad Ibrahim's case it was held that:- "From the above analysis, it becomes abundantly clear that in the scheme of the Ordinance, while a restriction on indiscriminate conversion of residential buildings into non-residential buildings has been imposed by section 11, and whose contravention is punishable under section 19 with a view to safeguard the availability of residential space, such a conversion without permission has not been made a ground for the dismissal of a petition under section 13. Although, the Controller has been given a discretion to make an order in favour of the landlord on ground (vi) of subsection (2) of section 13, and is not bound to do so, nevertheless, the contravention of Section 11 is not one of the sure grounds on which an application for ejectment could be resisted. If it had been the intention of the Legislature to make this otherwise mandatory provision as one of the conditions precedent, under Part (vi) of subsection (2) of section 13, it should have been mentioned there in its proper context where there is also a reference to obtaining necessary sanction for the said construction from the Improvement Trust, Municipal Corporation and Municipal Committee, etc. I am, therefore, of the view that this is not a ground on which an application under Section 13 filed by a landlord could be successfully resisted."
8. The same principle was reiterated in the case of Raja Muhammad Khan v. Babu Fazal Karim (PLD 1973 Note 131) and Khushi Muhammad v. Mst. Anwar Begum (PLD 1982 Lah. 295).
9. The consensus of authority, therefore, is that non-compliance of section 11 of the Ordinance is not a ground for resisting the application of a landlord for ejectment on the plea of reconstruction.
Therefore, I am of the view that the finding of the Rent Controller on issue No.l is clearly unwarranted and cannot be maintained.
10. The next argument of the learned counsel for the respondent that Mst. Sheerin Bai was not entitled to file application in respect of three shops is completely misconceived. Clause (vi) of subsection (2) of section 17 and clause (c) of section 2 of the Cantonments Rent Restriction Act (Act XI of 1963) are as follows:- 17 (2) (vi). The landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction for such construction from the Cantonment Board.
2(c). "Commercial Building" means a building used solely for the purposes of business or trade;
11. A bare examination of clause (vi) of subsection (2) of section 17 and clause (c) of section 2 of the Act makes it clear that according to the definition, the entire building or the part of building is considered to be a building and under the provisions of section 17, a landlord may claim the entire building or the portion of building for reconstruction according to his needs. There is no restrictive provision in section 17 that he could only claim one part of the building and not the whole building or not more than one premises in the building. If a I landlord needs the whole building, it is to be seen in the context of requirement I of reconstruction.
12. In the case in hand, the building comprised of three shops. The appellant landlord obtained the sanction for rebuilding on the premises of the whole building and gave application against the three tenants who were enjoying three shops in the same building.
13. Reverting to the argument of the learned counsel for the appellant that sanction granted by the Cantonment Board on 12th of April, 1981 for a period of one year has elapsed, loses sight of the fact that the sanction is not pre-conditioned for filing an application for eviction. The spirit of obtaining the sanction is to establish the intention of landlord to demolish a building with an object to reconstruct at the premises of old building by incurring investment. This point came up for consideration in Rashid Brother Faisalabad v. Ch. Muhammad Anwar Khan and another (1981 SCMR 782) and the Supreme Court observed as follows:- "As for the plea that the sanction was valid only for one year it has been pointed out that to get sanction renewed is only a formality and it is not reasonable for the respondents landlords to get sanction renewed every year during the pendency of the proceedings which have been going on for the last many years."
14. For the foregoing reasons I have no hesitation in coming to conclusion that the order of the Rent Controller dated 6-7-1986 cannot be maintained. I accordingly accept the appeal, set aside the order of the-Rent Controller, reverse the finding on issue No.l and accept the application for eviction. The respondent is granted three months' time. He shall vacate the disputed premises within three months of this order, shall deliver the possession to the appellant landlord by or before 24-6-1989. Till that time, the order of eviction passed by this Court shall not be executed.
There shall be no order as to costs.