(1) Writ Petition No. 13236 of 2001;
(2) Writ Patitiori No. 13237 of 2001;
(3) Writ Petition No. '13238 of 2001; and
(4) Writ Petition No. 1,3239 of- 2001.
2. Brief facts of the case, as given in the iivrit-petitions, are that petitioner herein, Anjuman-e- Khadman Rasool Masjid Jamia Hanfia Farooqia; Gulistan Colony, Mustafabad, Lahore, through its President filed an ejectment petition against the respondents regarding ejectment of quarters attached with 'the' mosque' at Gulistan Colony, Street No. ' 17, Mustafabad, lahore on the grounds :- _
(i) that the respondepts are, rent defaulter as they failed to deposit the rent since, February, 1997; and
(ii) that the -building of the mosque is not sufficient for the needs and requirements of the people of the ,locality and the petitioriers was expand the Wilding of the mosdue in the interest of public at large and-the same is required for personal bona fide use and occupation.
The petition was resisted by the private respondents by filing written reply. It was, inter alia, contended that the petitioner was not competent person to file the ejectment petition; the rate of rent is fixed which was regularly paid by the respondent and now the same is being deposited, in the Court' on refusal of the petitioner to receive the same. It was denied that there was any need to expand the building of the Mosques in the interest of public at large. It was further contended in the written statement that the ejectment petition is mala fide, baseless, false 'and frivolous.
4. From the divergent.Pleadings of the parties, the learned Rent Controller, Lahore framed the following issues:-
(1) Whether the respondents failed to tender increased rent, despite having been given notice in this regard? OPA
(2) Whether the demised premises are bona fidley required for extension of the mosque? OPA
(3) Whether the petitioner has no cause of action to file this petition? OPR.
(4) Relief.
5. The learned Rent Controller decided issues Nos. 1 and 2 in favour of of the Petitioner while issue No. 3 was decided against the respondents and consequently passed the ejectment order dated 28.6.2000. It was observed by the learned Rent Controller, while deciding issue No. 1 regarding default in payment of rent, as under:- 'Receipts produced by the respondents clearly show that the rent tendered- by the respondents has not been deposited after its statutory increase and it is held in esteemed citation 1987 CLC 1658 that tenant would be ejected if he had, not paid or tender rent after its statutory increase within 60 days.
On the personal need, the learned Rent Controller was of the view that the premises are bona fidley required for extension of the Mosque. The appeal filed by the respondents against the order dated 28.6.2000 was accepted by the-learned Additional District Judge,ahore vide order dated 26.5.2001.
Hence this writ petition.
6. At the very out-set, the learned counsel for the petitioner has argued that the issues of default and personal bona fide use were proved by the petitioner on the record by producing cogent evidence but the learned Additional District Judge has wrongly exercised the jurisdiction vested in her while accepting the appeal on the ground that the petitioner Anjuman is not a registered body and nothing in support of the same has been produced as documentary evidence. According to the learned counsel, the observation 'of the learned Additional District. Judge that, "the Mosque and the said premises were built by the appellant on their on expenses on the ground owned by the Government" was irrelevant for the decision of the case since the relationship, of landlord and tenant was admitted between the parties.
7. On the other side, the learned counsel for the respondents has argued that the appeal has been accepted by the learned Additional District Judge, who had the jurisdiction to decide the appeal therefore the writ petition is not maintainable. He has further argued that no doubt the relationship of landlord and tenant is admitted between the parties but the onus of proving that the respondents have committed default in payment of rent was on the petitioner which he has failed to prove on record. Finally, the learned counsel for the respondents has made much stress on the point that the ground of personal bona fide use and occupation was not available to the Mosque and there is no evidence on the record that the premises in occupation of the present respondents is required in good faith for extension of the mosque.
8. The record attached with the writ petition has been examined by me with the assistance of the learned counsel for the parties. The ejectment petition field by the petitioner on 4.11.1999 does not show that any notice under Section 5-A of the Ordinance for increase of rent to the extent of 25% qua each tenant was issued to the respondent/tenants. Though the notice dated 25.3.1997 (Exh.A/1) was produced in evidence, yet the same does not find any mention about the increase in rent under Section 5-A of the Ordinance. Even otherwise, notice Exh.A/1 regarding increase of 25% rent of each residential premises, in dispute, is not relevant for the purposes of deciding the ejectment petition. The amendment regarding increase of rent of nonresidential building in the Rent Restriction Ordinance has been inserted by adding Section 5-A by Act Ill of 1991 i.e.f. 16.3.1991.
Admittedly, the present respondents are not occupying the commercial premises and the ejectment petition was regarding ejectment of the tenants who are occupying the quarters of the mosque. The rates of rent of Rs.175/-, 250/- and 312/- have been admitted by the respondents which is being paid.
It is in the ejectment petition of the petitioner that the rent was enhanced in February, 1994 and the above-stated rates were fixed. PW-1 Ilyas Hussain has admitted that the rent till February, 1997 has been paid and the same was increased from Rs.175/- to Rs.250/- per month and he has refused to accept the same. He has stated that he had issued notice Exh.A/1 through which he demanded the rate of rent at Rs.500/- per month and on his refusal to receive the rent from the respondents they started depositing the same. He has admitted that the rent had been Paid by the respondents till date, i.e. 2.4.1999. There are receipts on the file Exh.R/1 to R/23 at pages 97 to 110 of the writ petition, which show that the respondents started paying rent at the rate of Rs.250/- per month through money order from. January, 1997 and thereafter it has been admitted by the petitioner, PW, that the rent is being deposited by the respondent in Court. There was no legal justification for the petitioner to ask for the enhancement of rent of Rs.500/- per month instead of getting the agreed rent. In this view of the matter, I have no option but to hold that there was no default on the part of the respondents.
This leads me to see the decision of the issue No. 2, i.e. Whether the premises can be got vacated for extension of the mosque. The provisions of Section 13(2)(vi) and 13(3)(a)(i) of the Punjab Rent Restriction Ordinance reads as follows:- "13. Eviction of tenant (1).................................. (2) A landlord who seeks to evict his tenant shall apply to the Controller for 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), (i.e), (iv), (v).......... (vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site and the landlord has {{Blur Page}} obtained the necessary sanction for the said reconstruction or erection from the Town iniprovement Trust, Municipal Corporaticim, -Municipal Ctitninittee or Town Committee for the area 'Where such building or rented land is situated; 13(3)(a) A landlord may'apply to the Controller for an order directing the-teriant to put the '1.16`ndlord in possession--
(i) in the case of residential building, if--
(a) he-requires itin good faith=for hit on occupation or for the occupation of any of his children;"
Neither the President, namely, Ilyas Hussain or the Secretary of the Anjurnan of the Mosque hai'asserted in theejectment petition that after vacation of the quarters the same will be occupied by them nor this could have been asserted under Section 13(3)(a) of the Rent Restriction Ordinance. Therefore, the quarters could have not been vacated for personal bona fide use and occupation. If the mosque was to be extended, in my view, the only way of getting the vacation of the quarters from the respondents was to get the plan approved from the local authorities and then ejectment petition could have been field under' Section 13(2)(vi) of the Rent Restriction Ordinance after getting the plan approved from the concerned authorities. The petitioner ilyas Hussain in his statement has stated that the plan wascapproved- by the Local Authority, but neither this,groundyvas asserted by, the petitioner in the ejectment petition northar Site-plan has been produced on the record.
The property involved in the present case-does not vest in a private. indiVidklat nor the petitioner- is its owner. This property belongs;, to the Mosque:and, therefore, the Mosque. Is landlord in the instent,caseAn,the;provitions,for.Initiatingimpceedings under Section 3:34.$1(-4, the is --more': on- 'the ,-wbrds 'on occupation' rather than on the .Wad, ',requires'. No doubt the 'need' not always be present.In.The ,sense. Of constituting strictly individual and personal'neeA,*but it. May be needed forlandlord or for one's children and riot otheri relation. In this background, I may make reference to a ..case4..Reportecl, as Muhammad Saeed Vs. {{Blur Page}} {{Blur Page}} Anjuman-e-Jarnia Hanfia, (Regd.) 'Mosque (PLD 1g82- Lahore 657) in-whith eieotment. Order was passed against the tenant on the-r_ground-of-Oersonal bona fide use and occupation because the-disoutectiarernises- was needed by the Mosque for settinTuoraAibrary volnpriSing of books on Islam. Admittedly, no such case has been Set,Up.In the pleadings. By-the -petitioner. The existing residential quartersAn occupation of the respondents may be required for the religious purposes of the Mosque. Therefore, on -- the contrary, in this case, the petitioner has set up a case in its ejectment petition for extension of the mosque. Firstly, there is no provision in the Rent RestrictionOrdinancefor the extension of the building-. The provisiOntof,lavVwhich-couldhave:been helpful to the petitioner+was 'Sectiorr-,1342Mi.) Of the, Rent Restriction Ordinance, whereby the building on renRdland is reasonably and in good faith required 'by'Ahe reconstructiorf;Ot'erectiOn of a building on the site and the landlord has obtained the necessary sanction for the seittrecOnStruction or erection from the Town Irriprovernent Trust, Municipal Corporation, Municipal Committee or Town Committeejor the r area, for extension of the Mosque. Admittedly the quarters are in occupation of the respondents. And there will be structural change in the existing building. In case reported as Mst. Zulekha and 7 others v. Masjid-e-Merajur Nabi Trust and 5 others (1984 CLC 3057) the provisions of Section 1342)(vi) -regarding. Bona ,o fide requirement by - tdruilbrd . For construction:Of mosqueWasAnterpreted and it was held:- yifiqh lot morn- '- 'TKitees of property obtaining approval of plan from mpe Mtent authority for construction of - Mosque of on 0.. disOuted lanaquirment of land, held, reasonable and c I7 inrc-dOod fait0 ; :1:100Y7 It myp.?49observed 4:hait),94-sp of Muhammad .Saeed v,,AnjumJ40#9,f; 4-0,rip0-1-4p.q?) lipaz01-
1. 657) which ,,interpretedotthw-i priwisjPg%-i*AeOaThilP(3)(a) which is-rel-ataWe tocreilkiiMment3IttvlaNior.0.490is;owniccuoati_on or for the occupetioptofiianvofti.5.-: children,i-isFpotpplicable, , .p! --'Sineellth4'fietitibilerr has failed to prove the issue of default ayairietiffi' tries-pcindentS and no other ground for ejectment was petifOner, in'thiS-view of the matter, there was no ofitionpfrif'ihq5learnerVA'dditiOnaf District Judge but to accept the {{Blur Page}} appeal and dismiss the petition filed by the petitioner. However, if the ejectment petition is filed on legal grounds available to the petitioner for ejectmet of the respondents this order will not preclude the Committee to pursue the matter of ejectment, which will be decided, on its on merits under the provisions of the Punjab Urban Rent Restriction Ordinance, 1959.
For what has been discussed above, this writ petition has not force and the same is dismissed.