NOOR KHAN Versus ABDULLAH

1. The appellant/landlord purchased the property in dispute House No. 201 situated in Ward E, Pishori Para, Hyderabad, through auction held on 24-2-1967. P. T. D. was issued in his favour on 3-10-67. The landlord served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) on 31-10-67 in which he demanded rent at the rate Rs. 25 per month, calling upon the tenant to pay the rent at that rate with effect from 24-2-67. The tenant/ respondent, however, tendered rent for a period of 9 months at the rate of Rs. 6 per month, This rent was not accepted by the landlord and instead he brought an ejectment application against the tenant on 21-4-68. The ground for ejectment was obviously default in the payment of rent.

2. The tenant challenged the notice given by the landlord under section 30 of the Act. He also claimed that the demand of rent of Rs. 25 per month was exorbitant and he was not liable to pay it at that rate. The learned Rent Controller framed the issues if the notice under section 30 of the Act was served as per requirements of law and if default was committed by the tenant in the payment of rent. The learned Rent Controller came to the conclusion that because of the demand at the rate of Rs. 25 per month, which was in accordance with the assessment of the Municipal Committee or the local authority, notice had become improper although not illegal. He held that the tenant was liable to pay the assessment rent, which he did tender and which the landlord refused to accept. The application was con sequently thrown out. Appeal before the District Judge met the same fate. The learned District Judge came to the conclusion that the application was premature because the period of three months since transfer of the property to the landlord had not yet expired when rent at the rate of Rs. 6 per month was tendered on 18-12-67. The first appellate authority also held that the finding of the learned Rent Controller that the . Taxation Department was not Municipal or local authority and, therefore, the assessment made by that department was not assessment as envisaged by section 30 of the Act.

3. In appeal before me the learned counsel has placed reliance on one point only and that is if the assessment of the Excise and Taxation Department is assessment as envisaged by section 30 of the Act, Proviso (a) to subsection (1) of section 30 makes it lawful for the transferee landlord to charge rent on the basis of the latest assessment carried out by the Municipality or local authority. In the present case, the landlord made a demand of rent on the basis of the assessment made by the Taxation Department. This has been held by the two Courts below not to be in accordance with the provisions of section 30 of the Act. In this connection it seems that the provisions of West Pakistan Municipal Committee (Building and Lands Tax) Rules, 1962, were not brought to the notice of the Courts below. In rule 2(a) following provisions have been made:

4. "Unless otherwise directed by Government either generally or in any specified case, the valuation list prepared for the municipality under the West Pakistan Urban Immovable Property Tax Rules, 1958, shall mutatis mutandis be the assessment list for the tax on buildings and lands levied by the Municipal Committee."

5. By making this provision the rule-making authority under the Municipal Administration Ordinance, 1960, adopted the assessment made by the Excise & Taxation authority, in respect of property lying in the are of each Municipal Committee. In the face of this provision the Municipal Committees were not required, unless specifically asked, to prepare separate assessments, and the assessments of the Taxation Department would hold good for other purposes, including those under section 30 of the D. P. Act. The learned counsel for the respondent has, on the other hand, relied upon P L D 1966 Pesh. 89, where it has been held that the Excise & Taxation Department notwithstand ing the fact that it is assessing and collecting authority of the tax imposed under the North West Frontier Province Urban Immovable Property Act 1928, as also under West Pakistan Urban Immovable Tax Act 1958, is not a local authority. But it is clear from this authority that although it took into consideration the provisions of subsections (24) and (26) of section 2 of the Municipal Administration Ordinance, 1960, the West Pakistan Munici pal Committee (Buildings and Lands Tax) Rules. 1962, were not brought to the notice of their Lordships of the High Court of West Pakistan, Peshawar Bench, and these provisions were not considered while giving this judgment, This ruling is, therefore, not helpful to the respondent.

6. The learned counsel for the respondent has also contended that there is no proof on record that assessment made by the Taxation Department was duly incorporated by the Municipal Committee in its record and register of assessment. This was not necessary in view of the declaratory nature of the provisions of sub-rule (a) of rule 2 of the above-mentioned rules of 1962. It might have been necessary for the Municipal Authorities to physically in corporate these assessments in their own record for the purposes for which the Municipal Committees require such assessment to be made, but for persons acting under the provisions of section 30 of the Act it was enough to note that the assessment required under this section was to be the assessment made by the Taxation Authorities. So long as the transferees of the Evacuee Properties acting under section 30 of the Act adopted and followed the assessment made by the Taxation Authorities, wherever they were to be found, they were acting within the provisions of law. Such objections, as A raised by the learned counsel for the respondent, have, therefore, do value. The assessment made by the Excise and Taxation Department would, there fore, by virtue of rule 2(a) of the above referred Rule of 1962, be deemed to be the assessment of Municipal Committee for the purposes of section 30 o the Act.

7. The next point taken by the learned counsel for the respondent is that by demanding payment for the period starting from 24-4-67 and not from the issuance of P. T. D i.e. 3-10-67, the landlord had contributed to the com mission of default by the tenant and he was, therefore, entitled to the exercise of the discretion in his favour in term of Ghulam Qadir v. Tajammul Hussain (P L D 1964 Lah. 329). In this ruling the facts were that the tenant used to pay Rs. 7 per month prior to the property being transferred to the landlord. The landlord demanded Rs. 14 as the monthly rent, which, according to this ruling, was not in accordance with the provisions of section 30 of the Act and, therefore, the landlord was partly responsible for the default of the tenant. In such circumstances, it was held that the discretion, as given under section 13 of the West Pakistan Urban Rent Restriction Ordinance, was rightly exercised in favour of the tenant. In the present case, a3 observed earlier, the demand of Rs. 25 was perfectly in accordance with law and as such could not be claimed to be exorbitant. The learned counsel, however. asserts that because the rent was demanded for a period longer than it was due, therefore, the demand was not in accordance with law. That argument is not parallel to the grounds of the ruling cited before. In any case the tenant was bound to tender rent for the period it was due. Not having done so he could not claim that the discretion should be exercised in his favour.

8. In view of this discussion, I find that the tenant has failed to tender the rent which was legally demanded by the landlord. He is, therefore, defaulter and liable to ejectment. The appeal stands accepted. The tenant should put the landlord in possession within a period of four months.

9. S. Q. Appeal accepted.