' SARDAR FAKHRE ALAM KHAN, J.-Firm Messrs Badar & Brothers Arms and Ammunition Dealers, Sadder, Peshawar has brought this Constitutional petition against Muhammad Aslam son of Gharibullah, proprietor Aslam Cycle Works, Shop No, 1092-A, Shahrah-e-Pehlvi, Peshawar Cantt.
And two others namely Controller of Rent, Cantonment Peshawar and the District Judge, Peshawar for a declaration that the order dated 10th November, W73 passed by Mr. Ihsanullah Khan, Controller of Rent, Peshawar Cantt. Whereby the application of the petitioner for ejectment of respondent No, I was rejected and also the order passed by Mr. Muhammad Ishaq Khan, District Judge, Peshawar on 18-9-1974 in appeal dismissing the same be struck down both being without lawful authority and of no legal effect and the application seeking the ejectment of respondent No, 1, be accepted.
2. It is contended in the petition that the petitioner is a firm dealing in Arms and Ammunition at Sadder, Peshawar Cantt. And respondent No, 1 is a tenant under the petitioner, of its Shop No, 1092- A situated at Sadder Road, Peshawar ; that the petitioner purchased this shop through a registered sale deed No, 232 dated 18.2-1971, with the primary purpose to reconstruct and remodel the same according to its own requirements to make it suitable for shifting its business therein ; that the petitioner approached respondent No, 1 with a request to vacate the premises but later instead of reacting reasonably to meet the genuine demand of the petitioner the respondent started threatening the members of the firm with dire consequences and simultaneously stopped payment of rent to the petitioner and did not pay rent for full four months from October, 1970 to January, 1971 and as such being a defaulter was liable to be evicted from the premises under section 17 of the Cantonments Rent Restriction Act, 1963 ; that the petitioner filed an application for the eviction of the respondent from the said property under section 17 of the Cantonments Rent Restriction Act, 1963 with the Controller of Rent, Peshawar Cantonment which was dismissed by Mr. Ihsanullah Khan the Rent Controller by his order dated 10.11-1973 ; that the petitioner went in appeal against the impugned order to the Court of District Judge, Peshawar who also by his judgment dated 18-9-1974 dismissed the same.
3. The petitioner further contended that both these orders Le. The order of Rent Controller and that of the Appellate Authority being illegal, incorrect and unlawful be struck down on the grounds that both the Subordinate Tribunals have not appreciated the facts brought on the record which positively established that the petitioner purchased property with the sole intention of shifting its business therein and the shifting was manifestly linked and depended on the suitability of the premises to be used as Arms and Ammunition shop ; that chronologically seeking the shop was first to be got vacated, then demolished and subsequently to be reconstructed to make it suitable for storing Arms and Ammunition and as such vacation, demolition and reconstruction were the pre-requisite of the process of self-occupation; that according to the statute for demolition and reconstruction of a building, sanction simplicitor is required and it is not necessary that the plan of the building proposed to be reconstructed has also to be got sanctioned prior to the entertainment of ejectment application ; that actually sanction for reconstruction which was accorded in this case could not have been approved without the scrutiny and approval of the plan of the building proposed to be reconstructed ; that the authorities while passing the impugned orders have failed to appreciate that the petitioner was running the business in a hired shop and was under perpetual threat of eviction and if his landlord succeeded In having him evicted from the rented premises the petitioner would have no place to move the stores worth lace of rupees, which being Arms and Ammunition, under the law are required to be housed in a special type of construction. It is prayed by the petitioner that by declaring the orders of the Rent Controller and that of the Appellate Authority to be illegal and without lawful authority a direction be issued to respondent No, 1 to vacate the premises.
4. The facts in short compass which gave rise to this Constitutional petition are that the petitioner Messrs Badar & Brothers is a firm de- ting in Arms and Ammunition which through a partner Seth Noorud Din brought an application for the ejectment of the respondent on the grounds of default in payment of rent, requirement of the shop for the personal use and that the respondent had sublet the portion of the suit property without permission. The respondent contested the application of the petitioner on various grounds which are reflected in the following issues:-
(1) Whether the respondent has failed to pay the monthly rent of the suit property in time ?
(2) Whether the petitioner requires the suit property for his personal use ?
(3) Whether the respondent has sublet a portion of the suit property without the permission of the petitioner
(4) Relief.
5. The Rant Controller as well as the Appellate Authority decided all the issues against the petitioner with the result that prayer of the petitioner for ejectment of respondent No, 1 was turned down.
6. Mr. Nazir Hussain Khan learned counsel appearing for the petitioner has confined his arguments in challenging the findings of the Rent Controller and the Appellate Court on issue No, 2 and urged that both have miserably failed to appreciate the correct legal position and have misread the evidence. While attacking the judgment of the Rent Controller on issue No, 2 the learned counsel urged that the mere fact that the petitioner is occupying a shop on rent in the vicinity of the shop in dispute cannot be a legal bar to estop the petitioner from seeking the ejectment of respondent No, 1 on the ground that the property is required for personal use and that the Rent Controller was legally wrong to hold that the petitioner could not seek the ejectment of the respondent from the premises on the ground of demolition and reconstruction as firstly, there was no issue in this regard and secondly, the petitioner had not placed on record a copy of the plan, approved by the Cantonment Board, authorising the petitioner to demolish and reconstruct the suit property and that the approach of the Appellate Authority i.e, the learned District Judge in deciding issue No, 2 against the petitioner relying on a decision of the Peshawar High Court cited as Sheikh Mohammad Yawl v. Mst. Zohran Bibi(1) to the effect that a landlord cannot eject a tenant by linking, personal requirement with that of reconstruction of premises, as these pleas are destructive of each other and go a lung way to mutilate the bona fides of the landlord is also not in accordance with the statutory provisions as contained in S. 17 of the Cantonments Rent Restriction Act, 1963.
7. Both the contentions put forth by the learned counsel for the petitioner are not without force and legal backing. While dealing with finding on issue which only are being vehemently contested by the parties, the Rent Controller had turned down the plea of the petitioner that the property was required for demolition and reconstruction ; firstly for the reason that there was no issue to this effect and secondly that the copy of an approved plan from the Cantonment Board for demolition and reconstruction of the property was not placed on record. To facilitate the resolution of the controversy the relevant portion of para. 2 and para. 3 in extenso of the application as in vernacular, are being reproduced :- {{URDU TEXT}} ' These cares. Would show that the petitioner did raise the plea that the property was required for reconstruction and the sanction to that effect had already been obtained and was appended with the application for ejectment. The requirements of section 17, subsection (2), clause (6) only are that the Landlord who intends to demolish the building for constructing a new one
(1) PLD 1973 Path, 186 ' on the site has to obtain the necessary sanction for the Cantonment Board and it is not incumbent under the law that he should also attach the approved A plan in this regard with the application for ejectment. To this extent the decision of the Rent Controller is misconceived.
Regarding the personal need of the petitioner both the authorities have held that another shop in which the business is being run situated on the same road I. e. (Shahrah-e-Pehlvi) in the vicinity of the shop in dispute, is owned by the firm and there is nothing on the record to prove that these premises occupied by the firm are insufficient for its needs. Apart from the aforesaid shop close to the shop in dispute the petitioner is in occupation of yet another shop owned by one Dr. Said Hamid who according to the petitioner is insisting for its vacation.
8. Regarding the findings of the Rent Controller and the Appellate Authority that the petitioner owns another shop in the Cantonment limits wherein the firm is already running a business, the learned counsel appearing for the petitioner contends that there is no evidence worth consideration on the basis of which the authorities have come to trill; finding. Noor-ud-din partner of the petitioner firm does not own any other property in the Cantonment area, the property . Where the firm is running the business is rented out from Dr. Hamid. The witness was not cross-examined in this regard and no question was put to him to rebut this statement. The only material on the basis of which the authorities have come to the finding that the petitioner firm owns another shop is the statement in examination-in-chief of Mohammad Aslam respondent No, 1 who therein stated: - "The petitioner owns other property in this cantonment which is situated at Sadder Road, which is being run as Arms and Ammunition shop."
' While cross-examined on the point, this witness elaborated:- "The petitioner owns a shop on Saddar Road near Habib Bank which is owned by his brother and members of the family. I know that this shop is owned by the family of the petitioner because I have been living in this Cantonment for the last 40 years."
' From the statement of respondent No, 1 before the Rent Controller, the only material on the subject, it cannot be said that it is proved that the petitioner firm owns another shop in the vicinity of the shop in dispute and as such is legally debarred from seeking the ejectment of respondent No,
1. The evidence of respondent No, 1 in this regard as quoted above, at the most shows that there is another shop owned by other members of the family of the petitioner's firm. It was not difficult for the respondent to conclusively prove the ownership of the other shop by calling the near B of the Cantonment Board which is maintained for this purpose. As such we are of the view that the finding of the Rent Controller that the petitioner firm owned another shop in the Cantonment area and approved by the Appellate Authority is based on misappreciation of evidence which is apparent on the face of record.
9. Regarding his second contention the learned counsel for the petitioner relies on a decision of the Supreme Court in the case of Abdul Salans Akhtar v. Dr. Najam Parvez (1) wherein their Lordships of the Supreme Court have observed :- "The next contention advanced on behalf of the petitioner is that since (1) 1976 SCM R 52 the landlord was living in rented premises, he was in occupation of another residential building suitable for his needs in the same urban area and, therefore, he was not entitled to evict the petitioner. The requirement that the landlord should not be in occupation of another 0 residential building suitable for his needs at the time does not, I our view, extend to cover rented premises, for, otherwise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all. It would be more reasonable to hold that the other residential accommodation, which the landlord is occupying at the time, must be shown to be his own and not merely rented premises."
10. With respect following dictum in this judgment, we are of the view that the evidence is to the effect that the firm was in the occupation D of only the rented shop and they could ask for the ejectment of the respondent tenant for the reason that it requires the property for personal use.
11. We also do not approve the view taken by the learned District Judge, Peshawar, the Appellate Authority though based on a judgment of this Court because with due respects, we are of the view that the enunciation of law in the reported authority Sheikh Mohammad Yusuf v. Mst. Zohran Bibi (I) is not judicially sustainable and In accordance with the provisions of the Rent Restriction Act, 1963, wherein it has been held :- "Quite apart from this position, the two Courts below seem to have misconceived the scope of respondent's application In which she had linked her personal requirement with that of reconstructing the premises. These two pleas were evidently destructive of each other inasmuch as how could respondent conceivably need the shop premises for her own use when on her own showing, these were in dilapidated condition and needed reconstruction."
' We wonder as to how it can be said that a landlord who intends to reconstruct the rented premises to remodel it with the purpose to make it suitable for his personal requirement, can be debarred from taking the plea of reconstruction of the premises for personal needs. It cannot be said in a general manner that in each and every case if the two pleas of personal use and reconstruction are taken by the landlord, these are destructive of each - other. Every case has to be decided on i's evidence and merits. In the instant case the petitioner is a firm in business of Arms and Ammunition, to house the merchandise which they sell, special type of strong room is required by law without which these cannot be stored. By arriving at the finding the learned Judge of the Peshawar High Court in the reported judgment referred to has followed the dictum laid down in the case of Abdullah Baloch v. Adam All (2) wherein their Lordships of the Supreme Court were pleased to observe that once the Rent Controller had specifically negatived the plea of the personal requirement as alleged by the landlord then the same must necessarily react upon the allegation of reasonable and bona fide requirement for reconstruction. Construction for the sake of reconstruction, is not a valid ground to enable a landlord to obtain the ejectment of a tenant under the Karachi Rent Restriction Act, 1963. Nowhere their Lordships of the Supreme Court have held that a landlord cannot simultaneously take both the pleas of personal requirement and of reconstruction to make the premises suitable for his needs.
(1) PLD 1973 Pesh. 186 (2) PLD 1961 SC 28
12. It will be most pertinent to note that clause (6), subsection (2) of section 17 of the Cantonments Rent Restriction Act, 1963 is worded in a way that the words "Reasonably and in good faith" are conspicuous by their omission and it reads:- "17. Eviction of tenant.-(1) After the commencement of this Act, no tenant, whether before or after the termination of his tenancy, shall be evicted from building in his possession or occupation in execution of a decree passed after such commencement, except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may after giving the tenant a reasonable opportunity of showing cause against the application make an order directing the tenant to put the landlord in possession, if he is satisfied that :- (i).
(ii)..
(iii).
(iv)
(v)..
(vi) the landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction from Cantonment Board."
13. For comparison the relevant provisions similar to some extent contained in West Pakistan Rent Restriction Ordinance, 1959 are reproduced:- "13. Eviction of tenant.-(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that- (i)
(ii)
(iii)
(iv)
(v)
(vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction of a building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated."
' Clause (6). Subsection (2) of section 13 which is in part materia with the Karachi Rent Restriction Act, 1953, the wordings of both the statutes are substantially distinct from the provisions of Cantonments Rent Restriction Act, 1963 inasmuch as that a landlord seeking ejectment of the tenant under the later is not to prove that he bona fidely requires the property for reconstruction but has only to prove the fact by placing the sanction for reconstruction, the authority reported in the case of Abdullah Baloch v. Adam Ali is as such also distinguishable and not applicable to the facts of the present case.
14. Now we deal with the objections raised by the counsel for the respondent that in spite of the defect apparent in the orders of the Rent Controller and of the Appellate Authority i.e, District Judge these being concurrent, cannot be interfered by this Court in exercise of extraordinary Constitutional jurisdiction by issuing a writ of the nature of certiorari, as these orders cannot be said to be without jurisdiction, lawful authority and as such of no legal effect. Before a writ of certiorari could go, it has to be established that the authority concerned had no jurisdiction to act or acted in excess of jurisdiction or that there was violation of natural justice or that there was an error of law apparent on the face of the record.
15. As discussed earlier and observed, the Rent Controller did not give a finding on question of reconstruction of the premises for two-fold reasons: - ' Firstly that there was no issue in this regard and secondly that the approved site plan of the proposed building to be reconstructed was not accompanying the application for ejectment.
Paras. 2 and 3 of the application for ejectment as reproduced in the earlier part of the judgment incorporates the plea that the property is to be demolished and reconstructed for which the sanction Exb. P. 2 of the Cantonment Board was obtained. It has been repeatedly observed by the superior Courts that the Rent Controller is a special tribunal constituted under the Ordinance and is not a Court strict senso and the proceedings before him are not to strictly follow the procedure prescribed under Civil Procedure Code and as such failure to frame an issue should not have deterred him from giving a finding on the plea about reconstruction, moreso when it appears from the judgment that the same was taken up and argued before him. The other finding about the failure to attach the approved plan with the application is not in accordance with the requirements of the statute Le. Clause (6), subsection (2 of section 17 of the Cantonments Rent Restriction Act, 1963 as therein only sanction from the Cantonment Board is required to be placed on record to show that the landlord intends to demolish the building for constructing a new building on the site which the petitioner did comply by placing sanction Bah. P. 2 on the record. The Appellate Authority i.e, District Judge, Peshawar had approached the case from absolutely different angle by dismissing the plea of reconstruction for the reason that this plea cannot be linked with the plea of personal requirement, which we have already held does not expound the correct law on the subject. We also do not approve the observation of the Rent Controller incorrporated in para. (6) of his judgment to the effect "The respondent is in occupation of the shop in dispute for the last more than 43 years and has no other source of earning income for his livelihood except the small cycle repairing business in the suit shop whereas the petitioners are a partners firm who are in occupation of more than one property in the same locality. Even if the
(1) PLD 1961 SC 28 ' case of the petitioners would have been proved, the ejectment of the respond dent from the shop in dispute would have been withheld on humanitarian grounds especially in view of the long occupation of the respondent over the suit shop".
16. The Rent Controller is not supposed to act as a benevolent despot or to refuse to exercise jurisdiction in accordance with law and to act on his own peculiar ideas of social justice. It is obligatory on his part to act within the jurisdiction and according to law applicable to the matte in dispute. The findings in the case arrived at by the Rent Controller and for that matter the Appellate Authority i.e, District Judge, Peshawar which we have held to be not in accordance with the statutory provision as contained in the Cantonment Rent Restriction Act, 1963, as such this Court would then go into the question of these findings and also examine facts which are to be the foundation of that conclusion. In exercise of 0 the Constitutional Jurisdiction the superior Courts have got the unquestionable authority to correct such errors which are touching the question of jurisdiction and these would in reality amount to the errors of law. Positively a finding will be interfered with which is not in accordance with the provision of law. The High Court may also interfere with the finding of fact which is absolutely perverse, or is based on no evidence at all or on a misreading of evidence, or if some relevant evidence has not been taken into consideration, or some irrelevant evidence has been taken into consideration. The consistent view taken by the Courts in cases of errors on the point of jurisdiction, has been that if a finding in a given case deals with facts relatable to the question of jurisdiction, and such finding appears to be prima facie incorrect then the High Court itself would go into the question of that finding and also examine the facts which be the foundation of that conclusion.
' In exercise of the Constitutional Jurisdiction the superior Court have got the unquestionable authority to correct such errors, which are touching the question of jurisdiction as they would in reality amount to errors of law. In the instant case we have observed that there is no reliable evidence on the record to show that the petitioner is in occupation of another shop which it owns and the findings of both the authorities below could not be maintained by this Court being based on no evidence.
' As it has been held by us that the Rent Controller as well as the Appellate Court was not legally correct to hold that they could not decide about the plea of the petitioner that he wanted to reconstruct the property, as no issue was framed to that effect, and also that the approved plan was not placed on record, which is not a prerequisite under the law for the entertainment of an application for ejectment on the basis of reconstruction of the property, and further that the Appellate Authority, the District Judge has approached the controversy from different angle, that the petitioner could not link the plea of reconstruction with that of personal needs which we have held to be not legally correct, therefore, by accepting this Constitutional petition we set aside the order of the Rent Controller and that of Appellate Authority and remand the case back to the Rent Controller to frame an issue to the effect whether the property is required for reconstruction by the landlord petitioner and as such the tenant can be elected and to allow the parties to lead evidence and decide the matter afresh on the additional issue as well as on issue No, 2 so as to enable them to substantiate their respective stands.
' No order as to costs. . Case remanded.
SUPREME COURT (AZAD J & K)