Non-payment of rent to the landlords is likely to trigger many landlords in the province and the assumption that all landlords are rich and affluent is fundamentally flawed. There are many who depend on this monthly rent and cannot make ends meet without it, writes Ahmed Pansota.
Following the rapid spread of the novel coronavirus (COVID-19), government of Punjab, through a notification dated 10.04.2020, effectively restrained landlords across Punjab from evicting tenants forcefully, illegally or without due process of law on account of non-payment/delay payment of rent.
The notification has been issued under section 144 Criminal Procedure Code, 1898, whereunder the government can direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if it considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.
In an attempt to safeguard the rights of tenants, it seems government has issued a notification, which is patently illegal and unlawful, on various grounds.
Firstly, the notification is in direct contravention to the spirit of the Punjab Rented Premises Act, 2009 (Act), a statute that regulates the relationship of landlord and tenant and provides a mechanism for the settlement of their disputes in an expeditious and cost-effective manner. In particular, Section 7 makes it mandatory for a tenant to pay the rent and section 15(b) recognises non-payment of rent as a ground for eviction of tenant found in default of payment of rent.
Secondly, the notification violates the spirit of Articles 24(1), 38(a) and 253 of the Constitution of Pakistan, 1973 (COP). Articles 24(1) provides that no person shall be deprived of his property save in accordance with law and the word property entails the benefits attached to it such as rent. Article 38(a) requires the state to secure the well-being of various classes of person including the landlords. Article 253 (1), amidst others, allows the federal legislature to prescribe limits, by law, as to the property or any class thereof. The said limit can only be placed through a legislation and not an executive order, PLD 2007 SC 642.
Thirdly, the government has very conveniently illegally tried to read in the ‘Force Majure’ clause in contracts governing the landlord/tenant relationships throughout Punjab. A force majeure event absolves a party from liability for the non-performance of a contract due to a supervening impossibility and that too if the contract includes a force majure clause. When a dispute arises, regarding such a force majeure event, the same should be proved in the appropriate forum by a party who wants to be absolved from its contractual obligation. For the court to allow claims under the Force Majeure clause, ‘inconvenience’ has to be distinguished from the ‘inability’ to perform the contract.
Fourthly, in light of the dictum laid down in Supreme Court judgment reported as 2017 SCMR 1218, general law cannot override a special law. In case of any conflict the later shall prevail. Through the issuance of this Notification effectively the government has not only suspended the operation of the Act but also violated various constitutional provisions.
Lastly, even if for the sake of argument it is believed that the notification is legal, then the next question to consider would if the spirit of the notification can be achieved by this i.e. to ensure public safety, conserve lives, maintain peace and tranquility and avoid chaos in Punjab.
Non-payment of rent to the landlords is likely to trigger many landlords in the province and the assumption that all landlords are rich and affluent is fundamentally flawed. There are many who depend on this monthly rent and cannot make ends meet without it. Issuance of any direction is likely to jeopardise the rights landlords gravely.
The notification is most likely to be challenged before the court and if any challenge is made, I don’t expect it to survive. Therefore, the government must consider its withdrawal to save embarrassment. Already the Supreme Court of Pakistan of Pakistan, vide its Order dated 13.04.2020, in suo motu case No.1/2020, concerning combating Corona Pandemic virus, has set aside the notification issued by the government of Punjab restricting inter-provincial movement of the people. The bench while setting aside the notification held as follows:
“…However, until such measure is taken by the legislature, the executive order of the Government of Punjab, restricting inter-provincial movement of the people, is struck down and set aside…”
The above excerpt clearly shows that any such action should have been taken by the legislature and not the executive. The Government of Punjab has recently passed the Punjab Infectious Disease (Prevention and Control) Ordinance, 2020 and could have included a section in the said Ordinance to deal with suchlike situation in a manner prescribed under the Constitution, Law and judgments of the superior courts of the Country.
Yet again a democratically elected government chose to follow a path which not only appears to be illegal but undemocratic as well.
Following the rapid spread of the novel coronavirus (COVID-19), government of Punjab, through a notification dated 10.04.2020, effectively restrained landlords across Punjab from evicting tenants forcefully, illegally or without due process of law on account of non-payment/delay payment of rent.
The notification has been issued under section 144 Criminal Procedure Code, 1898, whereunder the government can direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if it considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.
In an attempt to safeguard the rights of tenants, it seems government has issued a notification, which is patently illegal and unlawful, on various grounds.
Firstly, the notification is in direct contravention to the spirit of the Punjab Rented Premises Act, 2009 (Act), a statute that regulates the relationship of landlord and tenant and provides a mechanism for the settlement of their disputes in an expeditious and cost-effective manner. In particular, Section 7 makes it mandatory for a tenant to pay the rent and section 15(b) recognises non-payment of rent as a ground for eviction of tenant found in default of payment of rent.
Secondly, the notification violates the spirit of Articles 24(1), 38(a) and 253 of the Constitution of Pakistan, 1973 (COP). Articles 24(1) provides that no person shall be deprived of his property save in accordance with law and the word property entails the benefits attached to it such as rent. Article 38(a) requires the state to secure the well-being of various classes of person including the landlords. Article 253 (1), amidst others, allows the federal legislature to prescribe limits, by law, as to the property or any class thereof. The said limit can only be placed through a legislation and not an executive order, PLD 2007 SC 642.
Thirdly, the government has very conveniently illegally tried to read in the ‘Force Majure’ clause in contracts governing the landlord/tenant relationships throughout Punjab. A force majeure event absolves a party from liability for the non-performance of a contract due to a supervening impossibility and that too if the contract includes a force majure clause. When a dispute arises, regarding such a force majeure event, the same should be proved in the appropriate forum by a party who wants to be absolved from its contractual obligation. For the court to allow claims under the Force Majeure clause, ‘inconvenience’ has to be distinguished from the ‘inability’ to perform the contract.
Fourthly, in light of the dictum laid down in Supreme Court judgment reported as 2017 SCMR 1218, general law cannot override a special law. In case of any conflict the later shall prevail. Through the issuance of this Notification effectively the government has not only suspended the operation of the Act but also violated various constitutional provisions.
Lastly, even if for the sake of argument it is believed that the notification is legal, then the next question to consider would if the spirit of the notification can be achieved by this i.e. to ensure public safety, conserve lives, maintain peace and tranquility and avoid chaos in Punjab.
Non-payment of rent to the landlords is likely to trigger many landlords in the province and the assumption that all landlords are rich and affluent is fundamentally flawed. There are many who depend on this monthly rent and cannot make ends meet without it. Issuance of any direction is likely to jeopardise the rights landlords gravely.
The notification is most likely to be challenged before the court and if any challenge is made, I don’t expect it to survive. Therefore, the government must consider its withdrawal to save embarrassment. Already the Supreme Court of Pakistan of Pakistan, vide its Order dated 13.04.2020, in suo motu case No.1/2020, concerning combating Corona Pandemic virus, has set aside the notification issued by the government of Punjab restricting inter-provincial movement of the people. The bench while setting aside the notification held as follows:
“…However, until such measure is taken by the legislature, the executive order of the Government of Punjab, restricting inter-provincial movement of the people, is struck down and set aside…”
The above excerpt clearly shows that any such action should have been taken by the legislature and not the executive. The Government of Punjab has recently passed the Punjab Infectious Disease (Prevention and Control) Ordinance, 2020 and could have included a section in the said Ordinance to deal with suchlike situation in a manner prescribed under the Constitution, Law and judgments of the superior courts of the Country.
Yet again a democratically elected government chose to follow a path which not only appears to be illegal but undemocratic as well.