Ashfaq Ahmed vs Government of Pakistan

IN THE FEDERAL SHARIAT COURT

(Original Jurisdiction)

PRESENT

MR. JUSTICE DR. TANZIL-UL-RAHMAN, CHIEF JUSTICE.

MR. JUSTICE IBADAT YAR KHAN

MR. JUSTICE DR. FIDA MUHAMMAD KHAN

MR. JUSTICE ABDUL RAZZAQ A, THAHIM

SHARIAT PETITION NO.5/1 OF 1985

Ashfaq Ahmad s/o -- Petitioner Rashid Ahmad, Shop No.226/236, Adamji Road, Saddar Bazar, Rawalpindi Cantt.

VERSUS

1.Government of -- Respondents. Pakistan.

2.Mst. Sheerin Bai Muhammad Ali wife of Fazal-i-Abbas, r/o 14/A, Saifullab Lodhi Road, Rawalpindi Cantt.

For the Petitioner -- Nemo. For the Federal -- Mr. Iftikhar Hussain Ch. & Government Syed Riazul Hassa Gilani, Advocates.

For the Government -- of Punjab.

For the Government -- of Sind.

For the Government -- Haji Mirza Andul Qayyum of N.W.F.P. Mazhar, Advocate. For the Government -- of Balochistan.

For Ministry of --- Mr. Muhammad Salahuddin, Defence D .M .E .O .

Juris-consults -- Dr. Mehmood Ahmad Ghazi, Dr. Abdul Malik Irfani, Dr. Tufail Hashmi, Allama Khalid Mehmood, Moulana Muhammad Taseen.

Date of hearing 18-1-1991, 29-1-1991 Date of decision -- 1-10-1991.

JUBDGMENT

IBADAT YAR KHAN, J.-This petition was filed on 21-11-1985. It was registered as Shariat Petition No.5/1 of 1985 and came up for hearing on 8-1-1986. It was admitted to regular hearing with the following observat ions:t

"The question whether the tenants in the cantonments are entitled to equal treatment can be answered only if it is shown that the relevant provision in the Provincial Statutes are also not repugnant to the

Injunctions of Islam."

2.The petitioner has challenged the provisions of Section 17(2) clause (vi) of the Cantonment Rent Restriction Ordinance, 1963. The basis of his grievance is that this section does not provide that after reconstruction of an old building the tenant of an old building or a portion thereof should be provided accommodation in newly constructed building to the extent that was previously occupied by the tenant. The petitioner has referred to a similar provision in the West Pakistan Urban Rent Restriction Ordinance, 1959, in which provisions have been made that the tenant would be "put in possession of such area in the new building as does not exceed the area if the old building of which he was in occupation," The petitioner contends that Section 17(2)(vi) is discriminatory and being discriminatory is repugnant to the Injunctions of Islam. For the purposes of convenience both provisions are reproduced below:- t

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Section 17(2)(vi) of Cantonment Section _13(2)(vi)(5-B) of West Rent Restriction Ordinance,1963. Pakistan Urban Rent Restriction Ordinance. 1959.

"17(2) A landlord who seeks to "13(2) A landlord who seeks to evict his tenant shall apply evict his tenant shall apply to the Controller for an order to the Controller for a in that behalf, and the direction in that behalf. If Controller may after giving the Controller, after giving the tenant a reasonable the tenant a reasonable opportunity of showing cause opportunity of showing cause against the application, make against the application, is an order directing the tenant satisfied that - to put the landlord in possession, if he is satisfied that -

(vil The landlord intends to (vi) the building or rented demolish the building land is reasonably and in for constructing a new good faith required by the building on the same site landlord for the and has already obtained the reconstruction or erection the necessary sanction for of a building on the site, such construction from the and the landlord has Cantonment Board; 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:

(5-B) Where, in pursuance of an order under clause (vi) of sub­ section (2), a landlord has obtained possession of a build­ ing, (in this sub-section referred to the old building), and constructs a new building on the same site, the tenant who t

was evicted from the old building

may, before the completion of

J

the new building and its occupation by another person, j apply to the Controller for an t

order directing that he be "put in possession of such area in

S.P.No.5/1/85 - 4 -

* the new building as does not exceed the area of ' the old building of which he'was in occupation',' arid the Controller shall make ah order accordingly in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality.

3.-We have in a very detailed judgment dealing with three Shariat Petitions No.60/1 of 1990, 71/1 of 1990 and 9/L of 1990 examined in detail credibility of the two statutes namely, West Pakistan Urban Rent Restriction Ordinance, 1959 and Sind Rented Premises Ordinance, 1979, in the light of the Injunctions of Islam and held that the very idea of interfering ‘•with the rights of the owners in their immovable properties in normal conditions is repugnant to the Injunctions of Islam, 4, The broad question is whether any such order can be passed and enforced against the will of the landlord who has constructed new building on the land after demolishing the old building.

5, This question has been answered by the petitioner himself in clause (e) of the grounds of his petition.. At page 6 the petitioner has stated as follows:- "That the provisions of section 17(2)(vi) ibid are also opposed to the principles of A d '1 ( Jj__c which prohibits one party over-reaching the other It is the contract of lease/Aq'd Ijara ( which shall determine the rights and liabilities of'the contracting parties. A law, which takes away something from the rights of a contractors party to the advantage of the other contract

- '■ W WW,

S.P.No,5/1/85 5

party, is opposed to the principles of Ad'l ( J j--- e ). It is also submitted that this principle enjoins to maintain a mean between the rights and liabilities of the contracting parties. No onerous condition can be .imposed upon a contracting party to the advantage of the other, more so, when such a term was absent from the contract."

6.How true it is that "no onerous condition can be imposed on one contracting party to the advantage of the other. More so when a term is absent from the contract.” In plain words if there was no such Stipulation or understanding or assurance by the landlord to the tenant in the contract of tenancy how can it be imported now specially when the subject matter of Ijarah itself has disappeared. If there was any such stipulation in the contract of tenancy the case would be different • • and the contract should have to be enforced not by giving powers to the Rent Controller but under the Act which provides relief for specific performance of the contract. This petition is, therefore, misconceived and must be dismissed.

7, It may be mentioned in the end that during the hearing of the petitions disposed of by our judgment mentioned above, neither the petitioner nor his advocate had turned up. Casually a question whether such a provision providing for alternate accommodation in the newly constructed building can be in accord with Sharia, was raised and the jurisconsults, who were addressing us on the other laws, were unanimous that when the basis of Ijarah itself had disappeared no such order can be

P .N o .5 ^ / 8 5 6

passed because that would amount to making a new contract.

Islamabad, the lat October. 199L.

♦M.Faridun*

Fit for reporting.