ALI AKBAR RIZVI Versus PAK ARMY FURNISHING STORES

S.A. NUSRAT, J.‑ ‑This appeal is from the judgment of the Sind High Court, dated 20‑11‑1984 whereby the First Rent Appeal of the respondents was disposed of imposing a restriction, as mentioned hereafter, in the matter of eviction of the respondents.

2. The brief facts of the case are that the appellants moved. the Rent Controller for ejectment of the respondents from the disputed shop premises situate on plot bearing No. 13‑A, SB‑6, Dundas Street off Abdullah Haroon Road, Karachi on the ground of reconstruction of a multi-storeyed building at the site for which the Karachi Building Control Authority (hereinafter referred to as the Authority) had granted sanction and approved the plan vide letter, dated 10‑2‑1981. The respondents denied such assertion in their written statement whereupon the following issues were framed in the case;

(1) Whether the opponents are the tenants of the applicant?

(2) Whether the applicants require the disputed shop in good faith for reconstruction and have obtained necessary sanction from the competent authority?

(3) What should the order be?

During the trial of the case the renewal of the building plan was suspended by the Authority as per letter, dated 1‑6‑1983 which reads as follows:‑

"There are tenants in the building cited above, therefore, the renewal of building plan granted vide No. BC A/DCB‑VIII/Prop 3998/BO/1, dated 1st February, 1983 is executed with the tenants. You are hereby advised to execute an agreement with the tenants and furnish a copy to this department, till then no work should be done."

3. The learned Rent Controller after recording the evidence of the parties, ordered ejectment of the respondents from the disputed premises on 21‑9‑1981. As regards the letter of suspension of the building plan, dated 1‑6‑1983 the learned Rent Controller held that mere suspension of the building plan was of no effect.

4. The above order of the Rent Controller was challenged by the respondents in First Rent Appeal before the High Court which was disposed of as per impugned judgment. The order of ejectment passed by the Rent Controller was affirmed and the respondents were allowed two months time to vacate the premises subject to the condition that if no objection certificate and approval of building plan was not revalidated or suspension was not withdrawn during the said period, the respondents shall not be evicted till such time that a valid building plan was obtained by the appellants. It was also observed that the respondents, in the event of their ejectment, shall be entitled to the rights and protections as provided under section 15(3) and (4) of the Sind Rented Premises Ordinance, 1979.

5. The appellants are aggrieved of the judgment of the High Court to the extent that it imposes a condition on ejectment of the respondents as mentioned above.

6. Leave to appeal was granted to examine the following contentions raised on behalf of the appellants.

(1) That passing of a conditional order as aforesaid was beyond the purview of the Sind Rented Premises Ordinance, 1979 as it amounted to curtailment of the right of ejectment.

(2) that although the learned High Court had declined to go into the question of validity of the Regulations framed by the Authority, yet it was found that the Authority was free to impose some reasonable conditions such as directing a landlord to enter into agreement with his tenants.

7. Much prevarication was shown in the case by the Authority in the matter of the grant of approval/ renewal of the building plan in favour of the appellants. Initially the building plan was approved vide letter of the Authority, dated 10‑2‑1981 without any conditions attached to it as would appear from the text of the letter reproduced below:‑

"The building plans for the above‑mentioned plot attached herewith are hereby approved and you are permitted to carry out construction of the said accordingly.

Provided that it does not entitle you to build on land not lawfully conveyed to you not it includes permission to occupy any land of road of the Karachi Metropolitan Corporation, the Karachi Development Authority or the Government or any other Local Authority with the building material.

Provided that the right of easement is a matter between the concerned parties with which the Authority has no concern.

Provided that this holds good only, if the work is started within one year from the date where after it shall be deemed to have lapsed."

8. The approval granted as above expired on 9‑2‑1982 on the lapse of the period of one year as no construction could be started by the appellants during the pendency of the ejectment proceedings. The Authority on 15‑2‑1982 renewed the approval for a further period of one year. As the work of reconstruction was still not commenced, the Authority granted second renewal of the approved plan for a further period of one year from 1‑2‑1983. When the case was pending in appeal before the High Court the Authority issued a letter to the appellants, dated 11‑10‑1983 vacating its order of suspension, dated 1‑6‑1983, which reads as follows.‑‑

"The renewal of your building plan for above‑mentioned plot which was suspended by this department vide No. BCA/DCB‑VIII, dated 1‑6‑1983, is hereby restored now."

The respondents thereupon produced the copy of a Circular by the Karachi Development Authority, dated 3‑12‑1983, which reads as follows:

"As per Governing Body Resolution No. 518 of the Governing Body meeting held on 1st December, 1983, it has been decided that following action should be taken in respect of reconstruction of buildings, which are occupied by tenants:‑

(1) No permission for reconstruction of a building on plot should be accorded by the Building Control Authority with existing structure under occupation by tenants unless agreement is arrived at between the landlord and the tenant for alternate accommodation or mutually agreed compensation.

(2) Any permission if already given by the Building Control Authority will stand suspended with immediate effect if no physical construction has been started and the premises are still occupied by the tenants.

The Building Control Authority will take immediate action in this regard and follow these instructions strictly."

Again on 10‑4‑1984 the respondents produced a letter of the Authority, dated 15‑12‑1983 which reads as under:‑

"The renewal of your Building Plan which was Rest vide No. BCA/DCB‑VIII/592/83, dated 11‑10‑1983, is hereby withdrawn. You are, therefore, advised to execute an agreement with the tenant and furnish the copy of the same so that your cases may reconsider."

The respondents also produced the copy of a public notice, dated 9‑4‑1984 notifying the Regulations called the "Building Control Regulations" framed by the Authority under section 21(A) of the Sind Building Control Ordinance, 1979 (hereinafter referred to as the Ordinance). The said Regulations are as under:‑

"In exercise of the powers conferred under section 21(A) of the Sind Building Control Ordinance No. V of 1979 (as amended upto date), the Authority is pleased to frame/make the following Regulations, namely;

(1) Short title, commencement and extent

(1) These Regulations may be called the Karachi Building Control Regulations, 1984.

(2) These Regulations shall come into force at once,

(3) These Regulations shall extend to the whole of Karachi Division.

(2) Definitions.

'Authority' means the Karachi Building Control Authority. REGULATIONS

(1) Approval of Building Plans or permission for reconstruction of buildings over plot or plots having existing structure under occupation of tenant/tenants shall not be accorded by the Authority unless an agreement is arrived at by the landlord/owner and the tenant for alternate accommodation or for mutually agreed compensation.

(2) All permission accorded /granted by the Authority wherein an agreement between landlord/owner and the tenant/tenants has not been submitted are hereby suspended with immediate effect if no physical construction has been started in pursuance of the permission /approval already accorded and the premises are still occupied by the tenant."

9. In the light of the above developments, which had taken place after the passing of the order of the Rent Controller, the order of eviction was challenged on behalf of the respondents. The learned High Court, however, dismissed the appeal of the respondents imposing restriction on the order of eviction as indicated in the penultimate paragraph of the judgment, which reads as under:‑

"Under section 15(2) while directing the tenant to hand over possession the Court can grant such period as may be specified in the order. This period has to be determined considering the facts and circumstances of the case and has been left to the discretion of the Court. In these circumstances, no one should be allowed to take advantage of .the situation at the detriment of the other. Section 15(3) and (4) of the Rent Ordinance provide protection to the tenants and the landlord is required to demolish the building within six months of the taking over of the possession of the premises in the facts of the case, in my view, it will be just and proper to impose condition on the ejectment of the appellant. In view of the observation in Rehmatullah v. Ali Muhammad 1983 S C M R 1064 that 'what is permissible for Courts of general jurisdiction in the field of fair, play, justice and equity when there is no statutory bar, is also permissible for the Controller' conditions which are demand of justice may be imposed. In the present case as all permissions have been suspended the respondent even after taking over possession cannot demolish the building and start reconstruction either at the disputed place or other part of the building. Therefore, two months time is granted to the appellant to vacate the disputed premises. However, if the no objection certificate and approval of building plan is not revalidated or suspension is not withdrawn within this period of two months, the appellant shall not be ejected till such time the respondent obtains a valid building plan from the Authority. In any event after ejectment the appellant shall be entitled to the rights and protections provided to a tenant under section 15(3) and (4) of the Sind Rented Premises Ordinance, 1979."

In pursuance to an application made on behalf of the appellants under Order XXXIII, rule 6 of the Supreme Court Rules, a notice of the appeal was issued to the Karachi Building Control Authority. In response to such notice, Mirza Yakoob Baig learned counsel, appeared before us on behalf of the Authority on 22‑5‑1986 and made a statement that there existed no law providing for the imposition of any pre conditions on the sanction/ renewal of a building plan.

11. When the matter came up for final hearing today, it transpired that yet another change had taken place during the pendency of this appeal. Learned counsel for the Authority produced a letter issued by the Karachi Building Control Authority bearing No. BCA/DCB‑VIII‑ Prop/3998/80/949/2; dated 16‑6‑1986 whereby the validity of approval of the building plan has been extended for a further period of one year with effect from 16‑6‑1986. The said letter reads as under:‑

"KARACHI BUILDING CONTROL AUTHORITY

MP & EC DEPARTMENT, KDA,

(AUTHORTY UNDER SIND BUILDING CONTROL ORDINANCE, 1979)

No. BCA/DCB‑VIII‑Prop/3998/80/949/2, dated 16‑6‑1986

To,

S.A.A. Rizvi (Owner) C/o Mr. Habib Fida Ali, Lid Architect.

Sub: RENEWAL OF APPROVED PLAN OF PLOT No. 13‑A SB‑6, SADDAR BAZAR KARACHI.

Ref: YOUR APPLICATION DATED 3‑5‑1986.

Validity of approval of the ab9ve‑cited building plan granted under No. BCA/DCB‑BIII/Prop‑3998/80/949, dated 10‑2‑1981 is hereby extended for further period of one year with effect from 16‑6‑1986 subject to the condition as contained in the letter of sanction and the sanctioned plan and further subject to the following conditions:

Provided that Messrs Pak Army Furnishing Stores are after re‑construction of the building, as far as possible, provided equivalent accommodation (i.e. equal to the accommodation occupied by them in the present building) at the same place:

Provided further other tenants are provided accommodation as per agreements, already filed before the Authority by the owners.

You are, now permitted to carry out the construction in accordance with the above approved plan under the supervision of licensed Architect/Engineer/Supervisor as under law.

Sd/‑DEPUTY CONTROLLER BUILDING‑V BUILDING CONTROL AUTHORITY."

He also produced a copy of the judgment passed in Constitutional Petition No. D‑914 of 1984, filed by Hashwani Sales and Services Ltd. v. Karachi Building Control Authority and others, whereby a learned Division Bench of the Sind High Court has declared the Regulations framed under the provisions of the Ordinance as ultra vires the powers of the Authority and of no legal effect. Thus the entire complexion of the case has undergone a change. The finding of the learned Judge in the impugned judgment on the question of applicability of Regulations now stands set aside in the hierarchy of the same High Court by a Division Bench. Even otherwise the restriction imposed under the impugned judgment on the right of the appellants to execute the order of eviction has been removed, as a result of extension of the validity of the building plan. The appellants are, therefore, free to evict the respondents and execute the order of ejectment. We would, however, not like to comment on the validity or otherwise of the Regulations and the judgment of the learned Division Bench collaterally in this appeal.

12. The learned counsel for the appellants, however, challenged the validity of the conditions now imposed by the Authority in the letter of extension, dated 16‑6‑1986. Mirza Yakoob Baig, learned counsel for the Authority attempted to justify the same by referring to paragraph No. 17 of the Karachi Building and Town Planning Regulations, 1979. The said paragraph reads as under:‑

"Every person who carries out building works or demolition works shall comply with the directions and conditions accompanying the sanction."

The above contention is devoid of any substance as the relevant. paragraph, which appears in Chapter II of the Regulations under the head "SUBMISSION OF PLANS FOR APPROVAL" cannot be read out of context. The various conditions laid down in Chapter II relate to the manner of submission of plans and the requirements to be completed with in the construction or making any condition or alterations therein. The Authority is not empowered to impose any restrictions on the rights of the landlords in the matter of eviction of the tenants. However, the question whether or not the imposition of any conditions as mentioned in the letter of extension can be supported by any other law is not open for consideration in this appeal. Suffice to say that the consideration of this question is otherwise also premature because it will be open to the appellants to raise this question in the proceedings under section 15(4) of the Sind Rented Premises Ordinance, 1979 as and when the same are filed or in some other appropriate proceedings. We are, further not called upon now to answer the question indicated in the leave granting order. In view of the above facts and discussions.

The appeal is disposed of as indicated above with no order as to costs.

M. Y. H. Appeal disposed of accordingly.