GUL ZARIN KIANI, J:~A spacious three-storeyed building bearing survey No. 2280, situate at Chowk Khawajgan of Pind Dadan Khan belonged to Khawaja Muhammad Umar. In execution of a decree of civil Court passed against him the building was put to auction for its sale and was purchased by Mushtaq Ahmad respondent. Khawaja Zia Ullah son of the original owner objected to the attachment and sale of the building but was unsuccessful in the first Court as well as the Court of appeal. Thereupon, a suit was brought by him against auction- purchaser that the building was gifted to him and his mother Mst. Ghulam Fatima jointly by its late owner. His suit and appeal were dismissed, and, eventually Civil Revision No. 215/1989 also failed in this Court on 20.11.1989.
2. At the time of auction, the building was in occupation of Muhammad Riaz Shah as its rent paying tenant. Upon acquisition of ownership rights, respondent brought a petition under Section 13 of Rent-Ordinance 1959, seeking eviction of the successors-in-interest of the late tenant, who are petitioners in this Court, on the grounds of non-payment of due rent, subletting of premises, requirement for self-use of the building and its total reconstruction in accordance with the building plan. Petitioners submitted their written statement and denied averments in the ejectment petition.
Tenancy, however, was not questioned by them.
Ejectment petition was tried on following issues:-
1. Whether the petitioner requires the disputed house in good faith for his personal use ? OPA
2. Whether the petitioner requires the disputed house in good faith for reconstruction ? OPA
3. Whether the respondent is defaulter and as such entitled to ejectment ? OPA
4. Whether the respondent has sublet the part of the house to some other person ? OPA
5. Relief
3. In support of above issues, parties gave their evidence, oral as well as documentary. Upon its assessm ent, Rent Controller found that pleas of rent- default and subletting of rented premises were not established but bona fide requirement for self-use of the building and its reconstruction in accordance with the building plan were proved. Upon this conclusion, he gave an ejectment order of the petitioners. They preferred an appeal from the ejectment order. Appeal was dismissed and their ejectment from the building was maintained. Against this decision, a petition in Constitutional jurisdiction was preferred for its quashment.
Seen from the above, it was manifest that ejectment of the petitioners was based on two fold grounds; requirement of the owner for self-occupation of the premises and their demolition and reconstruction in accordance with building plan. Findings upon these two material points only were canvassed at the hearing. It was argued that neither the building was bona fide required for self- occupation by the owner, nor, was it needed by him in good faith for reconstruction after its demolition. A further defence was taken that the respondent had agreed for sale of the building to Muhammad Idrees Shah, one of the petitioners, for a sum of Rs.l,50,000/-and received Rs.l,00,000/- on 28.3.1990 by promising to finalize the sale later. Upon his failing to complete the sale, Muhammad Idrees Shah had instituted a civil suit on 19.5.1990, for specific performance of sale- agreement against the respondent in the civil court at Pind Dadan Khan. Suit was at the initial stage and was now fixed for taking evidence on 22.10.1992. It was argued that the agreement to sell and the suit for specific performance on its basis were a complete defence to the ejectment petition filed by the respondent.
At trial, respondent succeeded to prove his own requirement of the house for his self-use and its reconstruction in accordance with building plan. There was no dispute about ownership of the building and that the petitioners occupied it as tenants under the owner. Only material point for decision was, whether the twin requirements for self-use and reconstruction were sufficiently established or that there was any defect in the findings recorded on them.
4. With assistance of the learned counsel, original record was examined. Upon its scrutiny, no fault could be found with the decision given in favour of respondent. Respondent had two wives with prolific progeny from them. He was blessed with about fourteen children from the two wives. It was in evidence that respondent intended bona fide to reconstruct his building, partly for residential and partly for commercial purposes, for housing his need for residence and setting up business by him and his sons. Respondent did not own any other residential or non-residential building at Pind Dadan Khan. He hailed from Bhaira. He gave enough evidence to prove that reconstructed premises were intended for use by him and his family members for residing in it and utilizing its commercial portion for setting up a business in it. Lower Courts relied upon his evidence and accepted his version of the case. His evidence was neither faulty nor infirm. The building was an old one. It was not in good condition. Municipal Committee Pind Dadan Khan took exception to its soundness. There were reports to that effect on the file of the ejectment case which sufficiently established the dilapidated and unsound character of the building. Though the initial sanctioned plan of the building was not available on file to assist its original period of construction yet there was no dispute that it had come into existence much before the partition of sub-continent. Parts of the building were shown collapsing, therefore, it could not be successfully gain-said that need for its demolition and reconstruction was ungenuine or fake. The owner had every right to improve upon his property for adding to its value and utility. The tenant could not arrest his right to rebuild his property.
5. Respondent submitted a building plan for reconstruction to the Municipal Committee, Pind Dadan Khan for its sanction on 18.9.1990. Building plan was marked Exht A/7. Municipal Committee failed to pass any order on the application for permission and the building plan submitted to it for its sanction for more than sixty days after their registration in its records. Therefore, by a deeming provision contained in Sub-Section (4) of Section 77 of Punjab Local Government .Ordinance 1979, the building plan shall be held to have been sanctioned except to the extent of its contrariety to the Building Bye-Laws of the Municipal Committee or its sanctioned site development scheme, if any Neither Building Bye-Laws were placed on file nor was there any indication about the sanctioned site development scheme in the area. Further, Municipal Committee did not ever rescind the "deemed" to have been sanctioned plan nor did it raise any objection to it on any score. Therefore, it could be safely found that on the basis of evidence available on records, respondent was possessed of a valid sanction from Local Council of the area to reconstruct his building in terms of plan Exht. A/7. Section 13(2) (vi) laid emphasis on obtaining necessary sanction for reconstruction or erection from the Local Councils of the area. Procedure for obtaining sanction was available in the relevant Enactments. In the case of Municipal Committee Pind Dadan Khan, Local Government Ordinance 1979 shall apply. Section 77 of the afore-noticed Ordinance provided that no building shall be erected or re-erected unless a sanction for it was taken from the Local Council. The Local Council was empowered either to grant the proposed sanction or reject it. In case, the Local Council did not dispose of an application for sanction for a period of sixty days from the date of its registration without any order having been passed on it meanwhile, the sanction shall be deemed to have been granted to the extent to which it did not contravene the provisions of the Building Bye-Laws or sanctioned site development scheme, if any. So, either the building plan must have been actually sanctioned by the Local Council or alternatively it should be deemed to have been sanctioned under Section 77(4) of the Ordinance to meet the requirements of law in section 13(2)
(vi) of the Rent Ordinance. In the instant case, second alternative was available. Therefore, it could not be successfully urged that there was no sanctioned plan for the proposed reconstruction of the building from the Local Council. An objection was raised that the building plan was violative of Building Bye-Laws. Firstly, Building Bye-Laws were not produced and secondly, the tenants were not equipped with forceful right to raise objection on this score. In my opinion, neither the tenants nor the Rent Controller could question the sanction for reconstruction either actually granted or "deemed" to have been granted. It was a matter between the owner and the Local Council. The tenant had a mere tenuous right which was insufficient to permit him to block the proposed reconstruction of the property by its owner. If the tenant desired, he could leave any moment. He was not bound to stick to the property. At his instance, development of the property and improvements in it could not be obstructed. It is the right of the owner to improve his property and in this behalf he could not be dictated by the tenant. Further, section 11 of Rent Ordinance applied only to the existing structure and did not affect the right of the owner to reconstruct his property for a different purpose. Not only the will and earnest wish, the respondent was possessed with necessary wherewithal to proceed with the proposed project. His statement inspired confidence and could safely be taken to be an expression of bona fide and good faith requirement for reconstruction of his property. There was no material to doubt his credit in this behalf. Even at the risk of repetition, it may be worthwhile to observe that the Courts below upon analysis of evidence before them had found for him on this score. The conclusion that the building was required for self- use and for reconstruction was based on sound evidence. Having held that the twofold requirements were adequately fulfilled, I shall now advert to the plea that the pendency of a suit for specific performance must provide a bar to the ejectment of the petitioner. Respondent denied the agreement and receipt of earnest money. He described it as a fake document. Taking due account of the previous history of the litigation fought out between the parties, its longevity and the result, the stance taken by the respondent on the genuineness of sale-agreement was not an inconceivable possibility. However, since the case regarding agreement to sell was before the civil Court in the suit for its specific performance, I shall make no comment on its merits for leaving the trial court free to express itself. As far the case under consideration, neither the agreement to sell was put in nor any evidence given in support of it by the petitioners. Therefore, the contention based on it could not be successfully entertained. Decision in Allah Yar and others v. Additional District Judge and others--1984 S.C.M.R.741 was in point. As far the tenant's objection to the proposed construction in the alleged violation of Building-Laws, I may advantageously rely upon the judgment of this Court in Agha Muhammad Afzal and two others v. Municipal Corporation, Rawalpindi and 10 others-PLD 1992 Lahore page 448.
6. In the aforesaid view of the matter, writ petition is dismissed in limine and petitioners are allowed two months to vacate the building in favour of respondent No.3.
Records be returned.