P L D 1980 Lahore 489 (PLP)

The dispute relates to shop bearing No. U/745-46, situated in Raja Bazar, Rawalpindi. It was transferred to Abdur Rehman, predecessor-in interest of the respondents, on 20-5-1960. The appellant being in possession thereof became statutory tenant under Abdur Rehman, do;eased. It is admitted on record that a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the Act) was sent to the appellant by the deceased' indicating about the transfer as well as demanding payment of monthly rent at the rate of Rs.,64.

2. The monthly rent of the shop was increased to Rs. 300 with effect from 1st of July 1963, as per Exh. P.

4. Previous to that the monthly rent of the shop was assessed to be Rs. 60 by the Assessing Authority, Rawalpindi vide its order dated 5-6-1963. This order was, however, set aside, in exercise of revisional jurisdiction, by the Additional ' Commissioner. Rawalpindi Division, under section 10(2) of the West Pakistan Urban Immovable Property Tax Act, 1958 and the monthly rent was enhanced to Rs. 300 vide order dated 19-6-1964, copy Exh. P.

4. A notice under section 30 of the Act was sent to the appellant by the landlord on 7-1-1966 demanding payment of the monthly rent at the rate of Rs. 3(0 according to the latest assessment made by the authority concerned. This notice was replied by the appellant on 24-2-1966 refusing to pay the rent as demanded and insisting on payment of rent at the rate of Rs. 60 p.m. As a result of that the landlord filed ejectment petition against the appellant in the month of July 1966, Which was accented by the learned Controller. The appeal filed against the said order was also dismissed, vide impugned order dated 2-101978, by the learned Additional District Judge, Rawalpindi mainly on the ground that since the rent assessed according to the latest assessment being Rs. 300 p.m. was not paid in spite of notice having been received, therefore, the appellant was liable to be ejected.

3. According to section 30(i) (a) of the Act it is lawful for the transferee of a property to charge rent on the basis of the latest assessment carried out by the Municipal Committee or the Local Authority, as the case may be, for other properties in the locality generally. The words "for other properties in the locality generally" were added by way of amendment introduced by the Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Act, 1963 (Act XIX of 1963). It is contended while relying upon the aforesaid words that since previously the transferees of various properties used to get their properties assessed arbitrarily in collusion with the Assessing Authorities, therefore, the aforesaid' Amendment was introduced in order to safeguard the interest of the tenants. It is submitted that unless the latest assessment is carried out by the Assessing Authority generally keeping in view the assessment of the rental value of the other properties in the locality such assessment for a particular property cannot be relied upon. It is submitted that in this view of the matter the Rent Controller is obliged under the law to see whether the latest assessment of rental - value of a particular property is in accord with the assessment of other properties in the locality generally: and in the absence thereof he is not bound to rely upon such assessment. It is submitted that since in the present case, the assessment or rental value of the property in question made by the Assessing Authority vide its order dated 5-6-1963 was illegally and arbitrarily upset - by the Additional Commissioner by his order dated 19-6-1964, vide Exh. P. 4, in the absence of the appellant, therefore, his order cannot. be relied .upon. According to the learned counsel, in such circumstance valid assessment of rental value of the property in dispute being Rs. 60 gam. both the Courts below have erred in law in not relying upon that assessment.

4. The question which arises for consideration is whether the provision contained in section 30(i)(a) of the Act is specific and independent of the provisions as contained in West Pakistan (Urban Rent Restriction) Ordinance, 1959 (hereinafter called the Ordinance).; and further; what is the effect of section . 36. of the Act, providing that provisions of the Act and any rule or Scheme or order made thereunder shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any instrument having effect by virtue of such law. it means that the provisions as contained in the Act will have overriding effect over other law inconsistent with the same. According to section 9 of the Ordinance, a Rent Controller is competent to increase the rate of rent at the instance of landlord of a property.- That provision, obviously, is not attracted in the present case, because never any application wag made to the Controller for enhancing rent of the property in question. The rent determined according to the latest assessment carried out by the Municipality or Local Authority is the rent which can be charged by landlord under section 30(i)(a) of the Act and there being no provision i the Act empowering the Rent Controller to affirm or reject such assessment neither a landlord nor a tenant can approach him for affirmation or rejection of the rent so assessed.

5. What the Legislature intended by the aforesaid amendment introduced on 6-9-:963 by Act, XIX of 1963 is that the Assessing Authority While. carrying out the latest Assessment of a particular property should also keep in view the rental value of the other properties situated in the locality and if a landlord or a tenant, as the case may be, feels aggrieved against such assessment, then he can pursue the remedy as provided by West Pakistan Urban Immovable Property Tax Act, 1958 or the Municipal Act, as the case may be. This amendment does not authorise a Rent Controller to go behind an order passed by an Assessing Authority, as he cannot ignore an order passed by a Settlement Authority transferring a property in favour of a particular person, irrespective of the fact the such order may be ex parte or otherwise illegal. Such order will be effective as long as set aside by a competent authority on the Settlement side or by a competent Court. Similarly, in the present case since the Additional Commissioner, Rawalpindi Division was competent to revise the[ the order of the Assessing Authority passed vide Exh. Y. `R/1', therefore; the Rent Controller was not competent to go behind that order. It is significant to notice that the Additional Commissioner while passing his order Exh. P. 4 has specifically mentioned that the same was being passed while considering the situation and location of the property as well as the rental value of other properties situated in the locality. It means that while passing the aforesaid order the Additional Commissioner specifically took into consideration the rental value of all other properties in the locality so determined according to the latest assessment carried out by the authority concerned.

6. The view that Rent Controller cannot go behind ate order of assessment made by a competent authority gains strength from Mian Rehmat All v. KkaAja Haim (i), Ahmad Khan and another v. Mst. Sakina Bib! (2), Muhammad Ramzan and another v. Habib Ullah (3), Muhammad Akram v. Dr. Ghqfur Muhammad (4), Mistri Ahmad Din v. Muhammad Munir (5), Abdul Bashir v. Muhammad Rafiq Khan Sherwani (6) and Messrs Yousaf & Company v. Mst. Rashida Begurn (7). (1) P L D 1967 Lah. 29 (2) 1969 S C M R 435 (3) P L D 1971 Lah. 495 (4) 1970 S C M R 40 (5) 1975 S C M R 74 (6) P L D 19'14 Kar. 451 (7) F L D 1975 Kar. 684 In P L D 1967 Lahore, the amendment so introduced in 1963 in section 30(i)(a) of the Act was very much reproduced in the judgment when the same was passed. There is no dispute that the question involved in the present case was not precisely involved in that case, however, the fact remains that after reproduction of the amended provision it was held that it was lawful for a person to charge rent on the basis of the latest assessment made by the Municipality or Local Authority, as the case may be and there was no obligation on the part of a tenant to pay rent in excess of the amount of rent so assessed. It was further held that transferee of a property was obliged to prove that the tenant had not within three months from the date of receipt of notice of demand sent to him paid or tendered amount of rent due from him according to the latest assessment. The appeal filed by the tenant against the landlady was dismissed for the aforesaid reasons.

6. According to 1969 S C M R, a tenant cannot refuse payment of rent demanded according to the latest assessment carried out by the Municipal Committee and particularly for the reason that he had preferred appeal against such assessment. It was held that the landlord was entitled to demand rent at .the rate assessed by the Municipal Committee.

7. In P L D 1971 Lahore, it was held that the transferee-landlord could, under section 30 of the Act demand rent determined according to the latest assessment carried out by the Municipal Committee or a Local Authority, as the case may be, and the Rent Controller was competent to pass order for deposit of rent accordingly. The same view was taken in 1974 S C M R. It was further held that since the occupant of the property involved in that case failed to attorn to the transferee even after the service of notice under section 30 of the Act, therefore, he being clearly in default was liable to be ejected. In that case an application had been preferred by the tenant before the Rent Controller for the purpose of fixing fair rent. It was held that such application was against a specific provision embodied in section 30 of the Act itself and was not maintainable. According to their Lordships of the Supreme, Court the petitioner (tenant) before them was under an obligation to pay rent at the rate determined by the latest assessment. It is significant to notice in the aforesaid authority that the application preferred by the tenant under section 9 of the Ordinance for fixation of fair rent was held to be incompetent being against the specific provision of section 30 of the Act. It means that the Rent Controller is not competent to go into the question of assessment of rental value being valid or otherwise. that being the function of the appropriate authorities under the West Pakistan Urban Immovable Property Tax Act, 1958 as well as Municipal Act. The same view was taken in 1975 S C M R with the reasons given in detail. It was held as follows : "In the High Court the petitioner raised a new point namely that the respondent-landlord cannot charge rent on the basis of the latest assessment, unless the requirement of section 9 of Ordinance VI of 1959 is satisfied. The section provides inter alia that a landlord can increase the rent (subject to the approval of the Controller' even if such increase he in consequence of a fresh rate, cess or tax levied in respect of a rented premises, provided that the increase in the rent shall in no case exceed one-half of the existing rate of rent. The learned Single Judge repelled the objection taken by the petitioner on the ground that the relationship between the parties is entirely governed by section 30 of 1958 Act, which, by virtue of section 36 ibid shall have overriding effect notwithstanding any other law to the contrary. The first proviso to subsection (I) of section 30 expressly makes it lawful for the transferee of the property to charge rent on the basis of the "last assessment carried out by a Municipality or a local authority." The provisions of the section are not hedged by any further condition that the increase in rent should also have the approval of the Rent Controller before it becomes chargeable by the landlord. In reaching that conclusion, the learned Single Judge relied upon a judgment of this Court in Ahmad Khan v. Sakina Bibi (1969 S C M R 435). The view taken by the learned Single Judge is unexceptionable." This judgment gives complete answer to the contention of the learned counsel for the appellant.

8. In P L D 1974 Karachi, it was held that an occupant of a property was liable to pay rent under section 30(1)(a) of the Act at the rate determined by the latest Municipal assessment and the mere fact that such occupant had approached the Municipal Corporation for revision of the assessment could not prevent him from making payment of the assessed rent.

7. The above discussion would show that the amendment introduced in section 30(1)(a) of the Act empowers the Municipal Committee or the Local Authority to determine rental value of a particular property while keeping in view rental value so assessed of the other properties in the locality. A Rent Controller cannot go behind such assessment having been made by the aforesaid authorities. The validity of such an order can be challenged under the laws referred to above at the proper forum.

10. The learned counsel has referred to certain authorities in order to show that interpretation of the amended provision should be made ,in a manner to empower a Rent Controller' to go into the question of validity or otherwise of such assessment orders. d am afraid, bare reading of the amended provision does not lend support to the learned counsel. The only reasonable interpretation which can be put on the aforesaid provision is that which has been discussed above, otherwise the Rent Controllers would always remain busy in deciding the validity or otherwise of the orders of assessment passed by various authorities. The learned counsel has also relied, in this behalf, upon Muhammad Younis v. Mistri Didshad Muhammad and another (P L D 1968 Lab. 252), in order to show that in the case of assessment made ex parte the same cannot be relied upon. I am afraid, this reported case is of no help to the appellant. In that case, latest rental value of the property so assessed by the Municipality had been enhanced by the Chief Officer by means of a certificate issued in favour of the landlord while in the present case a judicial order has been passed by the Additional Commissioner, Rawalpindi Division in a regular manner enhancing the rental value of the property in conformity with the provision of section 30 of the Act. It may be mentioned that in P L D 1968 Lahore, unamended provision was dealt with and the effect of the amended provision was not in dispute.

11. It has not been denied by the learned counsel for the appellant that even after the receipt of the notice under section 30 of the Act for payment of rent at the rate determined according to the latest assessment, no rent was paid by his client. He always refused to make payment according to the latest assessment and even filed a civil suit challenging the validity of the order passed by the Additional Commissioner, which later on withdrawn by him. The default in the payment of rent, as such, was intentional and the same being willful both the Courts below have rightly passed ejectment order against the appellant. 12 As a consequence of the above discussion there being no force in the appeal the same is hereby dismissed with costs. Appeal dismissed.