' This judgment will decide S.A.O. No,3 of 1999 and S.A.O. No,4 of 1999 as the same arise out of common facts and raise common questions of law.
2. Appellant filed ejectment applications for eviction of two respondents in these appeals, from Shops No,1 and 2, in Property No,C-213 Bohar Bazar, on the ground of reconstruction, which was allowed in terms of the statements of two sides, vide order, dated 16-2-1989. Since the appellant delayed demolition and reconstruction of the building, respondent moved an application under sections 13(5) and 5-A of Punjab Urban rent Restriction Ordinance, for the restoration of possession, and for punishment of the President of appellant, in accordance with law. It was claimed that despite getting possession on 28-3-1989 and commitment to demolish the building and restore possession, the appellant failed to undertake demolition within four months times which entitled the respondents to the restoration of premises.
3. Respondents moved another application for restoration of possession. The learned Rent Controller, accepted the application on 30-4-1991 and directed restoration of possession. This order was set aside on 7-4-1994, by the learned Additional District Judge, Rawalpindi on the grounds that the application for restoration of possession was pre-mature.
4. S.A.O. No,11 of 1994 and S.A.O. No,12 of 1994 were filed which were accepted on 26-10-1994, by the High Court, with the consent of the parties. The order was to the following effect:-- "26-10- I 994. Mirza Anwar Baig, Advocate for appellant.
' Mr. Anees ul Haq, Advocate for respondents.
' By agreement of parties order, dated 7-4-1994, of learned Additional District Judge, Rawalpindi and order, dated 30-4-1991, passed by the learned Rent Controller, Rawalpindi are set aside and the matter is remitted to the learned Rent Controller, Rawalpindi who shall, after hearing both the parties determine all the questions relating to restoration of possession and terms to new tenancy.
The appellant/tenant has undertaken that he shall reconstruct the remaining wall and also lay floor at his own expense and shall not charge any amount from the Mosque Committee/landlord for the job done. This reconstruction will take place strictly in accordance with the plan approved by the Municipal Corporation. If the parties have any Reservation regarding this undertaking, they shall apprise the learned Rent Controller for their apprehension who shall also resolve the same.
' The learned Rent Controller is directed to complete the proceedings by 24th of December, 1994 even if day to day proceedings have to be resorted to. The parties are directed to appear before the learned Rent Controller on 31st of October 1994."
5. In post remand proceedings, the learned Rent Controller dismissed the applications of respondents on 15-5-1995 and directed that the appellant should pay Rs,2 lacs to the respondents as compensation. This order was challenged in appeal, which was accepted by the learned.
Additional District Judge, Rawalpindi on 20-9-1995.
6. S.A.O. No,26 of 1995 and S.A.O. No,27 of 1995 were filed to challenge the order passed in appeal, which was decided on 7-3-1997. In result the cases were sent back to the learned Rent Controller, for decision of the matter, within six months, after framing issues and recording evidence.
7. The learned Rent Controller, in post remand proceedings, allowed the applications of respondents, vide order, dated 31-7-1997 and directed the appellant to restore possession by reconstructing shops. Appellants went in appeal which were dismissed by the learned District Judge, Rawalpindi on 27-11-1998.
8. In these two appeals, the two orders, passed by the learned District Judge and learned Rent Controller, have been called in question.
9. Pre-admission notice was ordered to be issued to the respondents who entered appearance and were represented by their counsel.
10. Learned counsel for the appellant, argued, that keeping in view the requirements of the persons who offer prayers in the Mosque, the appellant had to construct number of baths and it was not possible for the appellant to either construct shops or to provide two shops to the respondents. It was added that at one time, Al-Haj Ghulam Farooq, Advocate was appointed as a local commission and the respondents had agreed to abide by his suggestion and, therefore, in view of the report of the local commission, order for restoration of the premises could not have been issued. Learned counsel stated that the respondents could find out a shop in any market and if some 'pagri' would be payable, to enable the respondents to have shops, the appellants were prepared to bear the expenses but the restoration should not be allowed. It was added that though the ejectment order was passed, in terms of the compromise, yet the appellant could not be compelled to raise shop as it would not be possible at this stage.
11. In reply, learned counsel for the respondents, submitted that there was no other shop in the area where the shops in issue are located and in any case, the respondents were entitled to the restoration of the shops as they had delivered possession, on the undertaking of the appellant that the shops would be demolished, new construction would be made and that shops would be allocated to the respondents, in the newly constructed building. Learned counsel contended that the appellant should honour its solemn commitments and could not be allowed to avoid the undertaking given in the judicial proceedings. It was added that on account of serious violation of the commitments and undertaking given in the Court, the officials of the appellant were liable to be punished in accordance with law, in addition to the restoration of shops to the respondents.
12. The submissions made by learned counsel for the parties, have been examined in the light of the material available on record.
13. Admittedly, appellant filed ejectment applications under section 13(2)(vi) of Punjab Urban Rent Restriction Ordinance for the eviction of respondents from the shops, on the ground of reconstruction wherein it was claimed, that the appellant had decided to demolish the existing shops including the shops in issue and intended to reconstruct new shops at the ground floor and residential rooms at the upper floor. It was alleged that requisite sanction had already been obtained from the Committee. On 16-3-1989, respondents recorded their statements, to the effect that if the appellant undertakes to deliver two shops, to the respondents, on market rent, after raising new construction, they would not object to the acceptance of the ejectment applications.
This offer was accepted by the learned counsel for the appellant, who recorded his statement that the statements of the respondents were acceptable. In view of the statements, the learned Rent Controller allowed the ejectment petition and directed eviction of the tenant.
14. Since the appellant did not demolish the building, after obtaining possession, respondents filed applications for the restoration of possession and for the punishment of official of the appellant.
Other applications were filed for the restoration, during the pendency of the first application.
Hammed Rent Controller allowed the application for restoration of possession, vide order, dated 30-4-1991. This order was challenged in appeal by the appellant which was accepted by the learned Additional District Judge, Rawalpindi on 7-4-1994, who took the view that the applications for restoration of possession were pre-mature. S.A.O. No,11 of 1994 and S.A.O. No,12 of 1994 were filed in this Court, which were allowed, with the consent of both the parties, vide order, dated 26-10-1994.
In the order, dated 26-10-1994, it was directed by this Court that the construction should be raised in accordance with the sanctioned plan approved .By the Municipal Committee while the learned Rent Controller was directed to complete proceedings till 24th of December, 1994. After remand, the learned Rent Controller dismissed the applications of the respondents and directed the appellant to pay Rs,2 lacs, as compensation to the respondents.
15. Order, dated 15-5-1995 of the Rent Controller was again challenged in which was allowed by the learned Additional District Judge on 20-9-1995. Appellant filed S.A.O. No,26 of 1995 and S.A.O. No,27 of 1995 which were decided by the High Court, on 7-3-1997. The operative part of the order reads as follows:-- "In view of consensus, these appeals succeed. The order passed by the learned Appellate Authority as well as the learned Rent Controller, dated 15-5-1995 are hereby set aside. The cases are, resultantly, remitted to the learned Rent Controller/original Forum with a 'requested direction' to decide the applications within a period of six months commencing from the receipt of the order of this Court. He shall frame the issues arising out of the divergent pleadings of the parties, record their evidence and then decide the applications as mandated above."
16. In the post remand proceedings, learned Rent Controller on 3-4-1997 framed the following issues:-
(1) Whether the petitioner/tenant is entitled to restoration of possession? If so on what terms and conditions?
(2) Whether the petition for restoration of possession is pre-mature?
(3) Relief.
17. After considering the evidence led by the two sides, the learned Rent Controller, vide order, dated 31-7-1997, allowed the two applications for the restoration of shops and directed that the appellant should demolish the bath rooms, reconstruct shops and restore possession thereof to the respondents. The findings were that the appellant was bound to reconstruct the property and restore possession and that the delayed demolition was mala fide, the construction of bath rooms instead of shops was mala fide and that the avoidance to honour the commitments was unjustified.
18. Order of the Rent Controller was even upheld by the learned District Judge, Rawalpindi, in appeal, who shared the views of the Rent Controller and did not accept the explanation given by the appellant for not honouring the agreement.
19. The perusal of the evidence, leaves no room for doubt that the appellant, invoked jurisdiction of the Rent Controller for seeking eviction on the ground of reconstruction of shops. Instead of prolonging litigation, the respondents in good faith, offered to vacate and accept the plea of appellant, subject to the condition that the appellant should adjust the respondents in the newly built shops after raising new construction, on the prevailing market rental. This offer was accepted and the appellant agreed to restore the shops after reconstruction, in terms of the statement made by the respondents. It was, thus, a solemn commitment which the appellant made for availing the benefit of ejectment order. In principle, the possession was delivered to the appellant, as the appellant had undertaken to provide new shops to the respondents after reconstruction. The appellant did obtain the possession, but delayed the process of demolition which compelled the respondents to file applications for restoration of possession. As noted supra, these applications remained in process as the case was remanded for more than two occasions. The applications were firstly allowed but were disallowed in appeal and the cases were remanded in second appeal with the consent of two sides. The applications were then dismissed by the Rent Controller but allowed in appeal and subsequently the cases- were again remanded by this Court. From the evidence on record it is discernible, that the appellant did not follow the sanctioned plan. The plan was got sanctioned for raising construction of shops at the ground floor and residential accommodation at the upper floor. On the representation, that the appellant intended to raise construction and to accommodate the tenant in the new shops, the ejectment order was obtained, possession was secured, but despite that, demolition process was delayed. Respondents moved application at this stage, when the demolition had not been completed. The second application was also moved, for the restoration of possession. Appellant was, thus, conscious of the fact that they had obtained the possession by giving commitments to restore shops in the new construction, to the respondents. It was also in the knowledge of the appellant that the applications for restoration of shops had been filed by the tenant, with the allegations that the commitments were not honoured and that she demolition was not made. This being so, there was hardly any justification for the appellant, to construct bathrooms, instead of constructing shops, during the pendency of the present proceedings. This deliberate departure from the commitment, with a view to avoid the order of the Rent Controller, could not obviously be approved. Under section 13(5) of Ordinance (VI of 1959), the landlord, on obtaining possession in pursuance of order under Clause (VI) of subsection (2), of section 13, is duty bound to demolish the building within four months of the taking of possession and to reconstruct new building within two years. Under subsection (5-B), of section 13, if the landlord, after obtaining possession, failed to reconstruct new building, the tenant is entitled to apply to the Rent Controller for an order, directing the landlord to put the tenant in possession of such area in the new building as will not exceed the area of the old building in his occupation and the Control. Is required to order accordingly. It is true, that the landlord is not required to provide accommodation, as previously occupied by the tenant or to keep in view, the need of the tenant, but however, the landlord is required to take into consideration the rights conferred by law on the tenant, by accommodating him in the new construction.
20. In "Akbar Ali v. Zoaib Ali and 5 others" (1981 CLC 592), it was observed that the landlord is obliged after reconstruction to put the tenant in possession of new premises as nearly as possible on the same site as originally occupied by the tenant and that if the landlord is given unrestricted discretion to give one or other premises in the newly constructed building, to the evicted tenant, the tenants right of restoration may become illusory, making subsection (5-B) redundant.
21. In "Muhammad Aslam v. A. Majid & Sons Ltd." (1986 CLC 872), it was observed that the tenant has a right to obtain possession in the new construction and the discretion left with the Rent Controller is to the extent of looking into the nature of building, area available, location and type of new building, to make adjustment in the area to be allocated to the tenant. It was further observed that the adjustment for allocation of tenant could be similar or lesser but would not exceed area previously held by the tenant.
22. In "Abdul Rehman v. S.A. Matim" (1986 CLC 889), it was observed that the ejected tenant is entitled to the lease of premises after reconstruction and the Rent Controller is empowered to lease out the tenant, an area in the new building smaller than premises originally occupied by the tenant.
23. In "Abdul Rauf v. Noman and 5 others" (1986 CLC 1499), it was observed that if the landlord let out the shop to the other people, prejudicial to the interest of tenant, he can be directed to provide alternate accommodation to the tenant from the space in his own possession.
24. In "Ghulam Haider v. Muhammad Hanif and others" (1979 SCM R 396), it was ruled by the Hon'ble Supreme Court that the landlord getting premises vacated for rebuilding is expected to realise that tenant will naturally expect to be put into possession of a new shop constructed on the old site or to the corresponding areas in any other shop.
25. In "Muhammad Shafi Butt and others v. Khawaja Muhammad Naseem and others" (1991 SCM R 1311), it was ruled that if a compromise having been voluntarily entered into between the parties without any undue influence from any side, it could not he ignored, especially when the execution thereof had not been challenged. It was further ruled that if the tenant admitted the landlord as owner in the compromise deed and promised to deliver possession of the house, he could not be after execution of compromise be permitted to take shelter behind technicalities.
26. In view of the rule laid in the precedent cases, it is evident, that if the landlord obtains possession, on the ground of reconstruction, with commitment to adjust the tenant in the new construction, he is duty bound, to demolish construction within four months and to raise new construction according to the plan, within the statutory period and to adjust the tenant in the new construction on the prevailing market rental. The tenant is required to apply before the completion of construction and its occupation by a third person, for restoration of possession. In this case, not only that the appellant made representation that the ejectment was required for reconstruction of shops building plan was sanctioned for that purpose but also, the ejectment was allowed in terms of the agreement which contained a commitment to provide shops in the new construction, to the respondents. The respondents did approach the Rent Controller, well in time and pointed out deviations from the commitments. Knowing well that the proceedings for restoration were pending, the appellant, opted not to construct the shops and instead, 12 bath-rooms are claimed to have been constructed. It is not understood, as to why 12 bath-rooms were required. Be that as it may, the appellant was expected. Not only to honour the commitment but also to raise construction according to the sanctioned plan. It is not the case of the appellant that according to the motioned plan. There was no provision for accomodating the tenant. Instead 'he facts as on the record. Show that the sanction was 'or the shops but the construction was raised in the form of bath-rooms, in total departure to the sanction and also terms of the ejectment order. It was thus a case, in which, no plausible explanation was put-forth, to avoid the consequential events.
27. As regard the argument, based on the report of the local commission, it may be observed that the local commission was not appointed as 'Referee' nor the record indicates if the respondents had ever agreed to accept the verdict of the local commission. Even otherwise the object of appointing local commission is to make factual inquiry who cannot be delegated with authority 9f the Court or tribunal and, therefore, the, suggestions of the commissions, would not have any binding force nor can deprive the tenant of his right to seek enforcement.
28. The learned Rent Controller as well as the learned District Judge, after considering the entire evidence and also the circumstances noted supra, directed restoration of possession by reconstruction of shops, to which no exception can be taken. The order do not suffer from any legal infirmity or misreading of record.
29. For the reasons above, these appeals are devoid of merit which are accordingly dismissed.
30. Since the period allowed by the Rent Controller for construction and restoration of possession has already expired, therefore, the appellant is allowed four months time, from today, to implement the order of the Rent Controller.