P L D 1965 (W (PLP)

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30 (1), proviso (b) and S. 30(3)(i)‑Notice of transfer and notice of demand by transferee of property‑May be given in one letter registered post (acknowledgment due). (b) Displaced Persons (Compensation and Rehabilitation) Act, (XXVIII of 1958), S. 30 (3) (i)‑Notice of demand of rent by trans feree‑Notice intimating merely that tenant had failed to pay rent according to assessment‑Not notice of demand of rent‑Provisions to be observed strictly‑Tenant not obliged to find out what rent had been assessed by Municipality‑Transferee's duty to inform tenant of such assessment and to make demand of same. The transferee should give a clear notice of demand in accor dance with section 30 (3) (i), Displaced Persons (Compensation and Rehabilitation Act, 1958, and it is only on failure of the tenant to comply with the same within three months that he can be ejected in accordance with the West Pakistan Urban Rent Restriction Ordinance, 1959. Where there was only an allegation in the notice that the tenant had failed to pay the rent according to the assessment: Held that there being no notice of demand within the meaning of section 30 (3), clause (1), the tenant was protected in his possession and the relationship between him and the transferee could not be regulated in accordance with the Rent Restriction Ordinance, 1959. The petition under the Rent Restriction Ordinance was, therefore, incompetent in law. Where a power is given to do a certain thing in a 'certain way the thing must be done in that way and other methods of performance are necessarily forbidden. Moreover, the tenant has a statutory right to remain in possession for a period of six years and he can be ejected only on contravention of the provisions contained in section 30 (3). The provisions should be strictly observed. Nazir Ahmad v. King Emperor A‑I R 1936 P C 253 ref. If a transferee gives a notice to the tenant, without specifying the amount he intends to charge, and asks the tenant to pay rent in accordance with the assessment of the Municipal Committee, it will not be a valid notice of demand within the meaning of section 30(3) (i). There is no obligation on the part of the tenant ipso facto to pay the rent to the transferee in accordance with the assessment of the Municipal Committee. He is liable to pay the rent which he .was paying before the transfer. A right, however, is created in the transferee to charge the rent based on the latest assessment carried out by the, municipality. Unless the transferee exercises his right there is no corresponding obligation imposed on the tenant to pay that amount. The transferee, under the circumstances, must indicate his intention to do so before he can enforce his claim and complain of default in the context of the proviso. Since the right is vested in the transferee it is for him to be definite about the same and he cannot just call upon the tenant to make payment according to the latest assessment without specifying the amount. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑Default in payment of rent‑Order of ejectment against tenant within judicial discretion of Controller Tenant all along anxious to pay up rent. but landlord making uncalled for and incorrect claims regarding amount of rent Discretion exercised in favour of tenant. It is within the discretion of the Rent Controller to pass an order of ejectment against a tenant on ground of failure to pay rent. No doubt, the discretion has to be exercised judicially, but one cannot lose sight of the fact that a person in possession of the property transferred under Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) has a statutory protection for six years (section 30), and that being so, the discretion against him should be used only when he has flagrantly contravened the provisions. Where the tenant has all along shown his intention to pay the rent and the landlord himself has made uncalled for and incorrect claims purporting to be based on the assessment of the Municipal Committee, the discretion has to be exercised in favour of the tenant. (d) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30(3) (i)‑‑Default in payment of rent Application for ejectment under S. 13, West Pakistan Urban Rent Restriction Ordinance, 1959, competent only if landlord can prove contravention of S. 30(3) (i)‑Notice of demand of rent necessary before landlord can invoke jurisdiction of Controller. In every case when a landlord (who is a transferee under the Displaced Persons (Compensation and Rehabilitation) Act, 1958), invokes the jurisdiction of the Rent Controller to eject a statutory tenant, he must prove that the provisions of subsection (3) of section 30 have been contravened. These provisions were made to ensure the protection of such tenants for the ff statutory period of six years. They cannot be ejected like the' ordinary tenants by a simple default on their, part in the payment of rent. To warrant an action of ejectment against them, it is necessary to give them an opportunity to remedy the default which they would be within their right to do within three months after the receipt of the registered notice. If the landlord does not give the required notice, there is no contravention of section 30(3) of Act XXVIII of 1958. The landlord, therefore, cannot invoke the jurisdiction of the Rent Controller, under the West Pakistan Urban. Rent Restriction Ordinance, 1959. SARDAR MUHAMMAD IQBAL, J.‑

Malik Abdul Aziz appellant was in possession of an evacuee shop No. S‑64‑R‑140, Anarkali, Lahore. It was disposed of by a public auction held on the 15th of May 1960 and purchased by Dr. Sayyed Najam‑ud‑Din. A provin cial transfer order was issued in his favour on the 24th of August 1960. The appellant, on the 21st of August 1960, remitted a sum of Rs. 96 to the transferee as rent for three months from the 15th of May 1960 to the 14th of August 1960. The amount was received by Dr. Sayyed Najam‑ud‑Din. He, however, on the 17th of October 1960 sent a registered notice (Exh. P. 5) to the appellant through his lawyer that he should vacate the premises within one month alleging, inter alia, that he had remitted the rent to him which was less than the one he was liable to pay in accordance with the latest assessment of the Municipal Committee. The appellant replied to the notice on the 25th of October 1960, denying all the allegations made against him and he further asked the transferee to elucidate the basis on which he was demanding enhanced rent so that he should make the necessary adjustments. The appellant continued remitting the rent at the rate of Rs. 32 per month to the transferee, but he refused all the money orders without intimating the appellant as to its cause. He did not inform the appellant of the rent which he thought was in accordance with the assessment of the Municipal records. He, however, filed an application under section 13 of the West Pakistan Urben Rent Restriction Ordinance VI of 1959 on the 1st of September 1961. Among other grounds he alleged that the appellant was liable to pay Rs. 37 per month as rent, but committed default in its payment. He withdrew the petition on the 11th of October 1961, with the permission of the Court to file a fresh one. He filed a fresh application on the 2nd of November 1961, again alleging that the appellant had committed default in the payment of rent to him. This time it was averred that the rent of the premises was Rs. 250 per month and the appellant had paid only Rs. 96 out of Rs. 4,154 which were due to him from the 15th of May 1960, to the 15th of October 1961. The transferee in, the meantime sold this property to the present respondent by a sale‑deed dated the 5th of June 1962. On an application made by the vendee under `Order XXII, rule 10, C. P. C., they were impleaded as a party. Qazi Muhammad Dastagir, learned Rent Controller by order dated the 7th of September 1963, held that the appellant was liable to pay the rent at the rate of Rs. 37 and ordered his ejectment on the ground of default. The appeal preferred against his order was dismissed by Mr. Muhammad Amir Akbar Khan, the learned Additional District Judge, Lahore. The appellant preferred a second appeal which was dismissed on the 22nd of February 1964. This is a Letters Patent Appeal against the order of the learned Single Judge.

2. It may be stated at the very outset that no notice of transfer was given to the appellant as contemplated in proviso (b) to clause (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and there was no notice of demand of rent made in accordance with The provisions of sub‑clause (i) of clause (3) of section

30. Dr. Sayyad Najam‑ud‑Din, however, had given a notice (Exh. P. 5) on the 17th of October 1960 calling upon the appellant to vacate the premises alleging, inter alia, the default on his part to pay the rent according to the latest assessment of the Municipal Committee. On behalf of the respondent it was argued that objection as to notice of transfer under proviso (b) to clause (1) of section 30 'of the Displaced Persons (Compensation and Rehabilitation) Act was waived by the appellant and that notice of ejectment Exh. P. 5, referred to above, could be interpreted to mean as a notice of demand under sub‑clause (i) of clause (3) of section 30.

3. To appreciate the contentions which have been raised by the parties in this case it is necessary to mention that clause (1) of section 30 of Act XXVIII of 1958 creates a statutory relationship of a tenant and a landlord between a transferee of an evacuee property and a person in possession. The person in possession is deemed to be a tenant on the same terms and conditions as to the payment of rent or otherwise on which he held the property immediately before the transfer, subject to a proviso that the transferee could lawfully charge a rent on the basis‑of the latest assessment of the Municipal Committee. The incidents of this statutory relationship are that a tenant is protected against ejectment for a period of six years. The period is to commence from the date of transfer if the notice is given by the transferee within one month of such transfer by a registered post (acknowledgment‑due) or from the date of the receipt of such notice by a tenant if the notice is not given within one month. The right of the tenant to continue in possession for the statutory period, however, is subject to the condition that he pays or tenders the amount of rent or arrears of rent due for any period after the transfer within three months from the date of the receipt of notice of demand sent to him by the transferee by registered post (acknowledgment due). The section, therefore, clearly contemplates two notices, one to be given of the factum of the transfer of property which is necessary to determine‑the‑commencing day for computing the period of six years, and the other is the one under which a demand of rent is made. Both the notices have to be sent by a registered post. Under clause (4) of section 3 the tenant becomes liable for ejectment only on the expiry of the period of six years or on the contravention of the proviso o clause (3) which includes his failure to pay the rent within three months of demand by a registered post (acknowledgment due). We, however, should not be understood to mean that these two notices should necessarily be by two separate registered letters. A notice is not the same thing as a letter, nor have these words has been used to convey one and the same meaning in these provisions. A letter may contain one notice desiring a particular thing to be done or if may contain more than one notice calling upon the addressee to do different things. In the latter case, the letter will be one, but notices will be different. Thus a landlord may give these two notices one under section 30(1) (b) and the other under section 30(3) in one registered letter, informing the tenant under the former of the transfer and calling upon him under the latter to pay the rent. In one case the statu tory period of tenancy for six years will commence, and in the other case the tenant will have the information to pay the rent within the prescribed period, failing which he will render himself liable to ejectment under the ordinary law for the time being in force.

4. To deal with the contention of the learned counsel for the respondent that the notice dated the 17th of October 1960, is one of a demand for the rent in accordance with the assessment of the Municipal Committee and. since he failed to pay or tender the rent for three months he became liable to ejectment on the 1st of September 1961, when the application for ejectment was made its the first instance, we can do no better than to reproduce the relevant portions of the notice itself: "(1) That by virtue of the Provisional Transfer Order No. 524669, dated 15‑5‑60, issued in favour of my client by the Settlement Authorities my client has been transferred the property known as S‑64‑R‑140, Anarkali, Lahore." "(2) That subsequent to the transfer of this unit and after your having been informed of the transfer of the said shop in favour of my client you tendered Rs. 96 as three months rent through money order in the month of August 1960, which my client accepted subject to certain conditions along with the proposed assessment of the Municipal Committee and of Urban Property Tax Department. After ascertaining from the record and by calculating, it transpires that you have remitted less amount than the actual amount liable to be paid." "(5) That in view of the above‑mentioned circumstances my client does not wish to keep you his tenant any. more because you are committing acts which are destructive and injurious to property in addition to the default in the payment of rent, and, therefore, gives you one month notice to vacate the property failing which my client shall seek his remedy in the law Court." The tenor of the notice does not even remotely indicate that it was a notice for demand. This was in fact to ask the appellant to vacate the premises. It is indeed‑mentioned that the appellant p, has not paid the rent in accordance with the assessment of the G Municipal Committee, but this was not done with a view to Lt demanding the rent on that basis but to show th t he had committed a default in the past. The notice, under t9e circum stances, is not in due compliance with the provisions of sub‑ iq clause (i) of clause (3) of section 30, which reads as under:‑ "(3) Nothing in proviso (b) to subsection (1) (it deals with the right of the tenant to remain in possession for a period of six years) shall apply to a tenant‑ (i) who has not, within three months from the date of receipt of a notice of demand sent to him by the transferee by registered post (acknowledgment due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or In this case it was, therefore, necessary for the respondent that he should have given a clear notice of demand and it was only on failure of the appellant to comply with the same within three months that he could be ejected in accordance with the law in force, i.e., the West Pakistan Urban Rent Restriction Ordinance.

5. Learned counsel for the respondent, however, tried to argue that the appellant should have at least after the date of the notice paid the rent according to the Municipal assessment. This contention is untenable for the reason that the liability to pay the rent cannot be equated with liability to ejectment. The liability to ejectment is dependent on a condition precedent that a notice of demand should have beets given. Moreover, when the law requires a certain thing to be done in a particular way, it should be done in that manner and .not otherwise. In Nazir Ahmad v. King‑Emperor (A I R 1936 P C 253 (2)), it was held that where a power is given to do a certain thing in certain way the thing must be done in that way another methods of performance are necessarily forbidden. More over, the tenant has a statutory right to remain in possession for a period of six years and he can be ejected only on contra vention of the provisions contained in section 30 (3). It it necessary that the provisions should be strictly observed. They being no notice of demand within the meaning of section 30 (3), clause (1), the appellant is protected in his possession and the relationship between him and the transferee could not be regulate of in accordance with the Rent Restriction Ordinance. The petition under the Rent Restriction Ordinance was, therefore, incompetent in law.

6. As already indicated there is no demand of rent on the basis of the assessment of the Municipal Committee. There is only an allegation that the appellant has failed to pay the rent according to the assessment. It was not mentioned in the notice as to what that assessment was. Assuming that a transferee gives a notice to the tenant, without specifying the amount h intends to charge, that he should pay the rent in accordance wit the assessment of the Municipal Committee, it will not, in our opinion, be a valid notice of demand within the meaning o section 30(3)(i). There is no obligation on the part of the tenant ipso facto to pay the rent to the transferee in accordance with the assessment of the Municipal Committee. He is liable to pay the rent which he was paying before the transfer. A right, however, is created in the transferee to charge the rent based o n1 the latest assessment carried out by the municipality. Unless he exercises his right there is no corresponding obligation imposed on the tenant to pay that amount. The transferee, under the circumstances, must indicate his intention to do so before he can enforce his claim and corn lain of a default. in the context of the proviso, which reads: "It shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be, for other properties in the locality generally;" It clearly implies that the transferee must find out as to what that assessment is and then base his claim on that. Since the right is vested in him, it is for him to be definite about the same and he cannot just call upon the tenant to make payment according to the latest assessment without specifying the amount. He cannot put a tenant on an enquiry in this behalf. Doubtless, it is an incidence of tenancy to pay the rent, but it can hardly be spelt out of the provisions of Act XXVIII of 1958 that there is any obligation on the part of the tenant also to know as to what rent the landlord intends to charge. A failure on the part of the tenant to ascertain the rent according to the latest assessment of the Municipal Committee and to pay the same to the transferee cannot make him a defaulter so as to attract the provisions of clause (4) of section 30 which says that on the contravention of any of the provisions of subsection (3), the relationship of landlord and tenant between the transferee and the tenant shall be regulated in `accordance with the law for the time being in force relating to such relationship. 6A. The appellant in the present case, at any rate, could not be held to be defaulter in the payment of the rent. Without a notice received by him of the transfer the appellant sent the rent of three months by money order for the period from the 15th of May 1960 to the 15th of August 1960. He believed the verbal assurance of Dr. Sayyed Najam‑ud‑Din that a provisional transfer order had been issued to him on 15th of May 1960. The provisional transfer order in fact was issued on the 24th of August 1960. The conduct of the appellant shows his anxiety to honour his liability. He was in fact not liable to pay anything before the 24th of August 1960. The Chief Settlement Commissioner m his memorandum No. S. A. W.‑81‑P&K‑60/406, dated the 25th of June 1960 (printed at pages 204‑206 of the Manual of Settlement Law and Procedure) instructed that the transferees could recover the rent from the tenants from the date of the provisional transfer order and the rent for the earlier period could be recovered by the Department. He again remitted the money order on the 24th of September 1960. It was only on the 17th of October 1960 that the respondent sent a notice tom , paining that the rent had not been paid to him according to the "proposed assessment" of the Municipal Committee. The appellant hurried to acknowledge the receipt of the notice through a letter of his Advocate dated the 25th of October 1960 (this was produced by the respondent himself) and asked the respondent to elucidate his demand based, on the Municipal records to enable him to make the necessary adjustments. The respondent failed to do so. The appellant, however, continued to remit the rent. It appears that the respondent himself was not certain as to what rent was to be charged. It may as well be that the respondent adopted this unusual course to coerce the appellant into committing a default and make him liable for ejectment under the ordinary law. He filed a petition on the 1st of September 1961 alleging the rent at Rs. 37 per month. It was based on the Municipal assessment of the Municipal Committee, Lahore, for the year ending 1947 (Exh. P. 3). The annual value of the shop is shown as Rs.

400. The monthly rent on that basis comes to Rs. 33-5‑

4. The respondent, however, claimed Rs, 37 by adding 10 per cent. to the same. This he calculated in accordance with the provisions of section 107 of the City of Lahore Corporation Act of 1941. The learned Additional District Judge has given effect to this provision in holding that the rent was payable at this amount. He lost sight of the fact that the said Act had since been repealed by the Municipal Administration Ordinance of 1960. The respondent, under the circumstances, was not justified to allege that the rent of the premises according to the records of the Municipal Committee was Rs. 37 per month. This would indicate that even if the appellant had ascertained the rent from the Corporation and paid to the respondent at the rate of Rs. 33‑5‑4 per month the respon dent would not have accepted it, he being of the opinion that the rent was Rs. 37 per month. In these circumstances when the respondent himself had not correctly determined the rent due to him according to the Municipal records, it can hardly be said that he was justified in considering the appellant a defaulter.

7. There is another aspect to be noticed. The respondent withdrew the petition on the 11th of October, 1961 and filed a fresh petition on the ground that the rent was Rs. 250 per month. The petition on which the proceedings had been taken and the impugned orders had been passed is based on the claim of the respondent for rent at the rate of Rs. 250 per month and it is also alleged that the appellant was liable to pay this amount from the 5th of May 1960. The respondent himself had filed the first petition on the 1st of September 1961 claiming that the petitioner was liable to pay the rent at Rs. 37 per month. It is not understandable as to how the appellant could be held defaulter in not having paid the rent at Rs. 250 from the 24th of August 1960. The appellant under the circumstances cannot be held to be a defaulter even if the rent was more than the rent which he had already paid. The default on the part of the tenant does not automatically in the forfeiture of tenancy nor does it become obligatory on the part of the Rent Controller under the Ordinance to pass an order of ejectment against a tenant. It is within the discretion or the Rent Controller to pass such an order. No doubt, the discretion has to be exercise judicially. We, however, cannot lose sight of the fact that person in possession of the property transferred under Ac XXVIII of 1958 has a statutory protection for six years, and that being so, the discretion against him should be used only when he has ‑flagrantly contravened the provisions, In a case like this, where the tenant has all along shown his intention to pay the rent and the landlord himself had made uncalled for and incorrect claims purporting to be based on the assessment of the Municipal Committee, the discretion had to be exercised in favour of the appellant. Strangely enough, this aspect had not been adverted to by any of the Courts:

8. W e must take notice of a contention raised on behalf of the appellant that the Rent Controller had no jurisdiction in this case and no proceedings could be taken against him under the Rent Restriction Ordinance. The precise argument put forth is that the appellant was a statutory tenant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, and as between him and the transferee, the ordinary laws could not regulate their relationship as landlord and tenant unless in compliance with the provisions contained in sub section (4) of section 30 of the Act, which reads as ; "(4) On the expiry of the period of six years mentioned in proviso (b) to subsection (1), or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship." The said subsection (3) is as follows: "(3) Nothing in proviso b to subsection shall apply to a (i) who has not, within three months from the date of receipt of a notice of demand sent to him by transferee by registered post (acknowledgment due), paid or tendered the mount of rent due for any period after the transfer; or (ii) who, after the transfer, has sublet or otherwise parted with the possession of the house or shop or any part thereof, or has committed acts which are destructive` or injurious to the property." Thus the ordinary law regulating the relationship of a landlord and a tenant can come into operation only under subsection (4) of section 30 of the Act, either on the expiry of the period of six years mentioned in proviso (b) to clause (i) or on the contra vention of the provisions of subsection (3) of section

30. Unless one of these things is proved, the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance cannot assume jurisdiction. The period of six years has not expired as yet. The case against the appellant is based on the allegation that he has committed default in the payment of rent. The Mere default, however, will not subject him to ordinary law. It has further to be proved by the landlord that he had given a notice for the payment of the rent but the tenant had failed to pay the same within three months. Unless, therefore, it is established that there was a notice of demand by the landlord: by a registered post and the tenant had failed to pay the amount within the said period of three months, there cannot be a contravention of subsection (3). If on the aforesaid notice given by the landlord, the tenant does not pay the rent within the specified period, the landlord can proceed against him under the ordinary law, because in that case the provisions of section 3,0 (3) (i) would be contravened. On the contrary, if after the notice, the tenant has paid the rent, the landlord is left with no cause of action to proceed against the tenant under Ordinance VI of 1959. If subsequent to this, a default is, committed by the tenant, the landlord again must give him a notice because if he does not do so and files a petition, the petition is liable to be dismissed on the ground of lack of jurisdiction for the reason that the Rent Controller under the ordinary law can assume jurisdiction in such cases only if it is proved that the provisions of sec tion 30 (3) (i) have been contravened. Those provisions, as already stated, are not contravened unless a notice is given and the tenant has failed to pay the amount within three months. We are, therefore, of the opinion that in every case when landlord (who is a transferee under the Displaced Person (Compensation and Rehabilitation) Act, 1958), invokes the juris diction of the Rent Controller to eject a statutory tenant, he must prove that the provisions of subsection (3) of section 3 have been contravened. These provisions, we may add, were,, made to ensure the protection of such tenants for the statutory period of six years. They cannot be ejected like the ordinary tenants by a simple default on their part in the payment of rent. To warrant an action of ejectment against them, it is necessary to give them an opportunity to remedy the default which they would be within their right to do within three month after the receipt of the registered notice, The respondent did not give the required notice in the case. There is thus no contra vention of section 30(3) of Act XXVIII of 1958. The respondent, therefore, could not invoke the jurisdiction of the Rent Controller, under the West Pakistan Urban Rent Restriction Ordinance.

9. In the view of the matter we take, we do not feel it necessary to adjudicate on the question of the failure of the respondent to have given notice of transfer under proviso (b) to clause (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and also whether it can be held under the circumstances that the principle of waiver can be pressed into service in the case or that the appellant has in any way waived his objection as to the notice. Accordingly we accept the appeal, set aside the order of the learned Single Judge in Chambers and also the orders of the Courts below. The petition for ejectment filed by the respondent is dismissed. There will be no order as to costs. A. H. Appeal accepted.