This judgment shall dispose of four writ petitions bearing Nos.9725/94, 9726/94, 9727/94, and 9728/94. These petitions have been filed by the tenants against their eviction from different portions of the same building. The ejectment orders have been passed separately but on the same ground that the property is needed by the landlord for its reconstruction. This question beingcommon in all the writ petitions, they are proposed to be decided by the same judgement.
2. House No.1/1072-A, Kucha Killi Khana, Chowk Rang Mahal, Lahore is an old building owned by Captain Shafiq Ahmad Khan respondent No. 1. This property was gifted in 1937 to Captain Shafiq Ahmad Khan by his father-in-law. He himself lived in this house up to 1940 and thereafter, gave it on rent to various tenants who were the predecessors-in-interest of the writ petitioners herein. The Custodian of Evacuee Property was moved by the tenants in the building for a declaration that it was an evacuee property. Being unsuccessful they filed a writ petition in the High Court, which was accepted. Captain Shafiq Ahmad Khan, the landlord filed an appeal which was accepted by the Honourable Supreme Court on 12-12-1979, with the result that his title as owner of this building stood conclusively settled in his favour.
3. On 8-10-1973 the owner (respondent No.1) moved an ejectment application against his tenants but the proceedings before the Rent Controller were stayed by the High Court in the aforesaid writ petition. After the decision in his favour by the Supreme Court, respondent No.1 filed separate ejectment applications against his tenants on 21-11-1981 on the ground of bona fide need of the property for the purpose of reconstructions, for which purpose he had obtained sanction from the Lahore Municipal Corporation. Present Constitutional Petitions arise out of these ejectment proceedings initiated in 1981.
4. In all the four ejectment applications respondents/ tenants took up similar pleas. By way of preliminary objection it was pleaded that it was an evacuee property and, therefore, neither the relationship of landlord and tenant existed between the parties nor the Rent Controller had the jurisdiction. In answer to para. No.5 relating to the need of the landlord for the purpose of reconstruction of the property, similar reply in all the four written statements was given, which is to the following effect:-- "Para No.5 of the application under reply is absolutely wrong and is denied. Petitioner has no intention to pull down the property in question. In fact, petitioner has no funds to demolish the property in question and to reconstruct the same. Photo copy of the sanctioning letter is inadmissible in evidence and incorrect. The sanction to raise new construction is no sanction in the eye of law and, therefore, the ejectment application is not competent. It has been procured fraudulently. "
The following preliminary issue was separately framed in all the four ejectment applications:-- "Whether the relationship of landlord and tenant exists between the parties and the Rent Controller has jurisdiction to entertain this eviction petition? OPA. "
The learned Rent Controller vide order dated 18-12-1988 decided this issue in favour of the landlord and held that the property was owned by the landlord as held by the Honourable Supreme Court in earlier proceedings. He also found that relationship of landlord and tenant existed between the parties. Thereafter, the following issue on merits was framed in all the petitions:-- "Whether the disputed property is required by the petitioner for reconstruction in good faith and bona fidely? OPA. "
The learned Rent Controller vide order dated 20-5-1990 came to the conclusion that the property was required in good faith by the landlord for the purpose of reconstruction. However, he dismissed all the four ejectment petitions on the consideration that in this building there are some other tenants and the ejectment applications filed by respondent No. l against them had already been dismissed and there are yet some other tenants, ejectment against whom had not been sought.
Therefore, he thought that unless the property was first got vacated from all the tenants in the building it was not possible to reconstruct the property and hence partial eviction from some portions of the building could not be ordered. He also repelled the plea of the landlord that he would reconstruct the building in phases, by taking the following view as contained in para. No. 38 of his order:-- "However, it was added by the learned counsel for the petitioner that respondent admitted in cross-examination that he constructed his portion without demolition of other portion and as such the petitioner will construct the building in phases. The statement of the respondent does not advance the plea of petitioner because it is not possible for petitioner to raise construction even in phases because many tenants are engaged in legal battle with the petitioner and it does not appeal to reason that they will permit petitioner to construct building even in phases. "
5. Respondent No. l feeling aggrieved against similar orders of the Rent Controller filed four separate appeals under section 15 of the Punjab Urban Rent Restriction Ordinance. All the four appeals have been accepted and the tenants (petitioners herein) have been ordered to be evicted by separate orders. The learned Appellate Authority, relying on Abdul Malik v. Saeeda Khatoon (1985 CLC 839) has taken the view that the bona fide requirement of the property by the landlord for its reconstruction stood proved in view of the sanction for reconstruction by the Lahore Municipal Corporation and the pleas of the tenants that landlord had no sufficient funds or that other portions in the building had not been vacated cannot defeat the landlord's right to evict tenants of his choice. He further observed that conduct of the tenants in denying the very title of the landlord was contumacious. All the four appeals were accepted and tenants were ordered to be evicted by separate judgments dated 20-7-1994. These petitions under Article 199 of the Constitution have been filed to challenge the said orders of ejectment passed by the learned Appellate Authority.
6. Predominantly the common question involved in all these writ petitions is, whether ejectment orders on the ground of reconstruction of the building can be passed against some of the tenants of a building, even though ejectment against the remaining tenants has either been refused by the Rent Controller or not sought for by the landlord.
7. Mr. Hakam Kureshi, Advocate, learned counsel for the petitioners has vehemently argued that it is established on record that M/s. Akram, Ishaq and Ismail are occupying different portions in the same building and ejectment applications against them have been dismissed. There are yet some other persons against whom landlord has not sought ejectment. According to him unless and until whole building in occupation of various persons is got vacated and demolished, it cannot be reconstructed and, therefore, ejectment petitions on the ground of reconstruction of the building cannot be allowed if it is not possible to get the entire building vacated. He has further argued that the learned Appellate Authority did not consider the evidence on record in each case. According to him, the tenants themselves got the portions in their possession, repaired and as such there is no need to reconstruct the building and that the landlord has no funds to raise the building.
8. As against this, Kh. Ahmad Tariq Rahim, learned counsel for the landlord has submitted that both the Courts below have concurrently held that the property was needed for reconstruction in good faith and there is a sufficient safeguard under subsections (5) and (5-A) of section 13 of the Punjab Urban Rent Restriction Ordinance, that if landlord does not reconstruct the building he is liable to be convicted and the tenants can always get back the possession from the landlord. He has further submitted that after securing ejectment of the petitioners he can start the reconstruction work in different phases and the remaining part of the building which is in occupation of other persons can be got vacated in due course of time after paying them compensation for vacating the premises or otherwise. So far as the petitioners are concerned they have no right to defeat the right of the landlord to get the portions in their possession vacated, by agitating that some portions of the building in occupation of other persons cannot be got vacated simultaneously. He has further contended that discretionary jurisdiction under Article 199 of the Constitution cannot be exercised in favour of the petitioners who engaged their landlord for 22 years in litigation, and even denied his title.
9. I have carefully considered the submission made by the learned counsel and the material placed on the record. There is concurrent finding of fact by the Rent Controller and the Appellate Authority that the property in possession of the petitioners is required by the landlord for reconstruction, in good faith, this finding is based on the sanctioned site plan Exh.A2 and the statements of Muhammad Hassan A.W.1 who is brother-in-law of the landlord and A.W.2 Zahid Shafiq Khan who is attorney and son of the landlord. Production of the sanctioned site plan from Competent Authority coupled with the desire of the landlord and the safeguard provided under subsections (5) and (5-A) of section 13 of the Punjab Urban Rent Restriction Ordinance are good enough to prove the bona ` fide requirement of the landlord for the purpose of the reconstruction of the building, as held in Messrs Amir Din Allah Dittta v. Seth Adamji Abdullah and others (1969 SCMR 131), Muhammad Raft and 2 others v. Mian Sharif Ahmad (PLD 1982 Lahore 380) and Akbar v. Faiz Muhammad (1982 CLC 982). In the case of Abdul Aziz v. Rent Controller and others (1987 SCMR 2074), the following observations were made by the Honourable Supreme Court:-- "It may be observed once again that as for reasonableness of the decision to reconstruct the building in question is concerned, it is the owner of building who is in the best position to determine, whether, despite the fact that the building is relatively recent or the structure thereof is quite firm, he would like to renovate or reconstruct it so as to make it commercially more beneficial for him."
1980 SCMR 41), it was held that:-- "It is not necessary that a building must be so old and dilapidated that is about to fall down before the landlord can be considered justified in wanting to demolish and reconstruct it. Every person has a right to improve his property, utilize the land on which the building is constructed in the best and most profitable manner and erect a new building if the old building is outdated although it might yet be habitated or sufficiently strong for another few years."
10. In view of the authoritative pronouncements of the Honourable Supreme Court in the aforementioned precedents, tenants have no case to urge that the requirement of the landlord is not bona fide because the portions in dispute have already been repaired/reconstructed and the landlord has no funds for the reconstruction or the building is fairly strong.
11. Mr. Hakam Kureshi, learned counsel for the tenants has vehemently urged that it is not possible to reconstruct a building unless the whole of it is first demolished, and for that there must exist eviction - orders against all the tenants in the building, but in the present case there are three tenants namely Muhammad Akram, Hafiz Muhammad Ismail and Muhammad Ishaq, whose eviction has been refused by the Rent Controller in separate proceedings and there are yet some other occupants whose eviction has not been sought by thelandlord so far. He has further contended that the portion in possession of Muhammad Akram is situated right above the portion in possession of Mst. Mumtaz Begum whereas the portion in possession of Muhammad Javaid Butt is situated below the portion in possession of Hafiz Muhammad Ismail, and in such situation unless and until the upper storey is demolished no building can be raised on the ground floor. The submissions made by Mr. Hakam Qureshi appear to be attractive but on deeper appreciation these submissions have no substance. It must be observed that scientific techniques have now virtually vanquished impossibilities in every field. The civil engineering including the field of architecture is no exception to that. Reconstruction of a building can be undertaken through a phased programme, in different stages. Piecemeal construction of a building, without demolishing the whole of the existing building is practicable. Even a portion of a building in the ground floor can be rebuilt/reconstructed without demolishing the upper portion. This can be done by providing additional support to the upper portion and improvising I constructional techniques. I am, therefore, not convinced that for the purpose of reconstruction of the building the entire existing building should in the first instance be got vacated and demolished.
12. It is also not necessary that the occupants against whom eviction orders have been refused by the Rent Controller, will not vacate the portions of the building in their possession, in future. The landlord can always strike a bargain with them on promise of some handsome compensation, or otherwise. Similar is the case with the person against whom ejectment has not been sought for. It is the prerogative of the landlord to choose a tenant to seek his eviction on the ground of requirement for reconstruction. Such a tenant cannot defeat landlord's right by taking the plea that other tenants/occupants should be evicted first. The Legislature has taken sufficient safeguards against unscrupulous ejectment under subsection (2)(vi) of section 13 of the Ordinance by the landlord on the ground of reconstruction. Under subsection (5) of this section, such a landlord can be convicted and punished for a term which may extend to six months or with fine or with both.
Under subsection (5-A) a further safeguard has been provided, that the possession of the evicted tenant can be restored to him if the premises which was got vacated from him is not demolished and reconstructed within the stipulated period. Subsections (5) and (5-A) of section 13 of the Punjab Urban Rent Restriction Ordinance are reproduced below:-- "(5) Where a landlord has obtained possession of a building in pursuance of an order under clause
(iv) of subsection (2) of this section and does not have the building demolished within a period of four months froiri the date of taking possession of the same or does not construct the new building within a further period of two years after the expiry of the period of four months from the date of taking possession of the same, he shall, unless to construct the building within the prescribed time for reasons beyond his control, be punished with imprisonment for a term which may extend to six months or with fine or with both.
(5-A) Where a landlord has been convicted under the provisions of subsection (5), the tenant who has been evicted from the building or rented land in respect of which the landlord is convicted, may apply to the Controller for an order directing that he shall be restored to possession of building which has been demolished, the Controller shall make an order accordingly."
The effect of the forequoted provisions of law is that if the building is not reconstructed within the stipulated period, then the landlord can be convicted and the evicted tenant can get back the possession by making an application to the Rent Controller. Indeed this is an adequate safeguard for the evicted tenant.
13. Now notice may be taken of the submission made by Mr.Hakam Qureshi that the learned Appellate Authority did not discuss the evidence on record. This submission too has no force. The learned Additional District Judge has taken into consideration the material evidence on record. He dealt with the merits of the case as follows:-- "The controversy regarding the relationship of landlord and tenant was decided in favour of the appellant. The learned trial Judge came to the conclusion that there was relationship of landlord and tenant between the parties. The learned appellant counsel relied on precedent cases Azeemullah etc. v. Kh. Inayat Ullah etc. (1983 SCMR 642), Abdu Malik v. Mst. Saeeda Khatoon (1985 CLC 839), 1969 SCMR 131. The respondent/tenant counsel relied on Muhammad Yousaf v. Abdullah (PLD 1980 SC 298). Muhammad Hussain appeared as A.W.1 in support of the petition. He deposed that the disputed building is in a dilapidated condition and petitioner/landlord (appellant herein) got site plan sanctioned for its reconstruction. He denies the suggestion that occupants of disputed building had made necessary repairs of the house in question, and there was no need of reconstruction. He also denied suggestion that occupant of the disputed building had already reconstructed the same. The attorney of appellant/landlord appeared as A.W.2. He deposed that the disputed building is an old building in a dilapidated condition. He also corroborated the assertions of A.W.1 by stating that the site plan Exh. A-2 was got sanctioned by appellant/landlord for reconstruction of the building. The attorney who appeared as A. W .2 was subjected lengthy cross-examination but no discrepancy could be elicited in the statement of A.W.2. In rebuttal one Zahoor-ud-Din Babar appeared as R.W.l. He controverted the narration made by A.Ws. By stating that the building is a multi-storeyed and is in good condition. He also stated that the occupants of building got the damaged portion repaired and it was reconstructed 15116 years ago. Before the learned Rent Controller respondent had also questioned the existence of relationship of landlord and tenant and that issue after recording evidence was answered in affirmative against the respondent vide order, dated 18-12-1988. The learned Rent Controller observed in para. No. 19 of his judgment as under:- The learned Rent Controller dismissed the eviction petition merely on the ground that partial eviction from some portions of the building is not visualised by status. The learned Rent Controller failed to appreciate and consider the law laid down in case of Abdul Malik v. Saeeda Khatoon (1983 CLC 839), wherein it was held by Honourable Karachi High Court that plea of landlord for bona fide need in good faith for reconstruction established because there was an approved site plan on the record. The tenant's plea that landlord had no fund for raising construction and other tenants had not evicted other portions was not to defeat the landlord's bona fide.
It is the prerogative of landlord to get vacated any portion of the property which is best suited to him according to his own needs. In this case respondent/tenant had denied the existence of relationship of landlord and tenant and issue was decided against them. Thus, it speaks of contumacious attitude on the part of respondent. The impugned order passed by learned Rent Controller appears to be self-contradictory which is not sustainable under the law. I, therefore, reverse the findings of learned trial Court on this issue."
14. Perusal of the above would show that the learned Additional District Judge considered all the relevant facts. It may be stated here that evidence in all the four cases is almost the same. It cannot be urged that he did not attend to the facts and circumstances of each case.
15. For what has been discussed above, the view taken by the learned Appellate Court does not suffer from any illegality. The impugned orders are just and proper in the circumstances of the case. Accordingly, all the four writ petitions filed by .The tenants deserve to be dismissed.
16. There is yet another reason for the dismissal of these writ petitions. The ejectment applications were initially filed in 1973 but proceedings were stayed on account of the writ petition filed by the tenants because of the denial of the very ownership of the landlord. After the decision by the Honourable Supreme Court in 1979 in favour of the landlord, present ejectment applications were moved on the ground of reconstruction in 1981. Despite decision by the Honourable Supreme Court, the tenants prolonged the litigation by denying the very relationship of landlord and tenant. The preliminary issue was decided after 7 years, in 1988. Denial of the relationship without justification is a contumacious act which disentitles them from the discretionary relief under Article 199 of the Constitution. They even claimed title unto themselves. It is after protracted litigation of 13 long years that the landlord has been able to get the order of ejectment against the petitioners on 20-7-1994 vide the impugned orders. The building is 70/80 years old and by now the building must have become sufficiently dilapidated/old so as to require reconstruction. A tenant cannot prevent a landlord for all times to come from reconstructing the building which belongs to him.
The upshot of the whole discussion is that all the four write petitions filed by the tenants are dismissed, but the parties are left to bear their own costs.