1990 PLP 1429 (CLC)

‑‑‑Ss. 3, 26 & 30‑‑‑Scheme for Management and Disposal of Urban Trust Properties, 1977, para.10‑‑‑Assessment and re‑assessment of rent ‑‑‑Jurisdiction‑‑ Power to assess or re‑assess rent of Evacuee Trust Properties being vested in Board constituted under S. 3 of the Act, in absence of any delegation of such power by Board in favour of Deputy Administrator or Administrator, re assessment of rent by Deputy Administrator, was wholly without jurisdiction. Nizam Ahmad for Petitioner. Ashiq Ali Anwar Rana for Respondents. Date of hearing: 29th August, 1989. SAEEDUZZAMAN SIDDIQUI, J.‑‑We propose to dispose of the sabove five petitions by this common order as the points of law and facts involved are common.

2. The petitioners in the above petitions have challenged the enhancement of rent by respondents in respect of several tenements situated in the building bearing No. R.B.7/2 known as `Capital Building'. The petitioner in Const. Petition No. D‑739 of 1984 is in occupation of tenement Nos.3/2 (third floor) the rent of this premises prior to 1978 was Rs. 67.17 p.m. This was enhanced from 1‑1‑1981 to Rs. 120 p.m. Again in September, 1981 the rent was proposed to be enhanced to Rs. 600 p.m. but on the objections of the petitioner, it was fixed at Rs. 240 by the Administrator (Respondent No.2) and this order was confirmed by the Secretary, Government of Pakistan (respondent No.3) in revision filed by the petitioner.

3. In Const. Petition No.D‑740 of 1984, the petitioner is in occupation of tenement No.3/1. The rent of this premises prior to 1978 was Rs. 68.41 p.m., which was enhanced to Rs. 150 p.m. from 1‑1‑1978. In September, 1981 the rent was proposed to be enhanced to Rs. 750 p.m., which was objected to by the petitioner and on the objections of the petitioner, the Administrator Chairman fixed the rent at Rs. 300 p.m. which was confirmed by the Secretary to Government of Pakistan in a revision filed by the petitioner.

4. In Const. Petition No.D‑741 of 1984, the petitioner is occupying tenement No.1/3. The rent of the premises prior to 1978 was Rs. 60 p.m. which was enhanced to Rs. 120 p.m. from 1‑1‑1978 and in September, 1981, it was proposed to be enhanced to Rs. 600 p.m. which on the objection of the petitioner was fixed at Rs. 240 p.m., by the Administrator and the same rent has been confirmed in revision by the Secretary to Government of Pakistan.

5. In Const. Petition No. D‑742 of 1984, the petitioner who is occupying tenement No.3/3 was paying rent of Rs. 60 p.m. prior to 1978 which was enhanced to Rs. 120 p.m. with effect from 1‑1‑1978. The rent was proposed to be enhanced again in September, 1981 at Rs. 750 per month to which objections were filed by the petitioner and finally the Administrator Chairman fixed the rent at Rs. 240 per month which has been confirmed by the Secretary to Government of Pakistan in revision.

6. In Const. Petition No.D‑743 of 1984, the petitioner is in occupation of tenement No.1/1. The rent paid by the petitioner prior to 1978 was Rs. 75 p.m., which was enhanced to Rs. 150 p.m, with effect from 1‑1‑1978. From September, 1981 the rent was proposed to be enhanced to Rs. 750 but on the objections of the petitioner, the Administrator Chairman fixed the rent at Rs. 300 which has been confirmed in revision by the Secretary to Government of Pakistan.

7. In all the above‑noted petitions, the petitioner has challenged the jurisdiction of respondents to assess or reassess the rent of the above‑mentioned premises. It is contended by the learned counsel for the petitioner that under the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975, the power to assess or re‑assess the rent or lease‑amount of the Evacuee Trust Property is vested in the Board, which is constituted under section 3 of the Act. It is accordingly, contended by the learned counsel that the re‑assessment of rent by Deputy Administrator was wholly without jurisdiction. The learned counsel for the Department, on the other hand, contended that under paragraph 10 of the Scheme for the Management and Disposal of Urban Trust Properties, 1977 (hereafter to be referred as the Scheme only for the sake of convenience) framed by Board under section 30 of the Act, the periodical assessment of rent of evacuee trust properties after every five years is to be done by the `District officer' which according to definition given in section 2 (t) of the scheme, includes an Assistant Administrator and a Deputy Administrator, incharge of the Evacuee Trust Property in a District. It is accordingly contended that as the first assessment under para 10 of the scheme was to be effective from 1‑1‑1977, the proposal for re‑assessment of rent of the above properties by respondent No.1 in September, 1981 was fully competent under the above scheme. We find that in the memo of revision tiled before respondent No.1 in the above cases it was specifically urged before that Officer that the Deputy Administrator and the Administrator (respondents Nos.l and 2 respectively) had no jurisdiction under the Act to make assessment or re‑assessment in respect of rent of these properties. The respondent No.3 while confirming the order of respondent No.2 and rejecting the revision applications of the petitioners in the above cases did not advert to the above contention of the petitioners. The learned counsel for the Department admits that in the comments filed on behalf of the Department except for relying on the Scheme, no other material has been placed on record to show that there was any delegation of power in favour of Deputy Administrator l‑y the Board under the provisions of Act XIII of 1975. 1t is true that under section 26 of the Act X111 of 1975, the Federal Government, the Board, and the Chairman, have been authorized subject to the provisions of the Act to delegate all or any of their powers to the subordinate authorities but there is nothing on record before us to show that there was any delegation of power by the Board under section 26 of the Act in favour of the Deputy Administrator or Administrator of the Evacuee Trust Property, Karachi. With regard to the contention of the learned counsel for the Department that the Scheme provided for assessment and re‑assessment by the `District officer' which included the A Deputy Administrator, suffice it to say here that the Scheme prepared under section 30 of the Act is subordinate to the Act and any provision in the scheme which is contrary to the provisions of the parent Act is to be ignored to the extent of inconsistency. We are, therefore, of the view that in the absence of delegation of power in favour of respondents Nos. 1 and 2 by the Board the re‑assessment of B rent of the above properties was not in accordance with law. However, as the power to re‑assess the rent in respect of the above properties was also exercised by respondent No.1 prior to September, 1981 which was not objected to on the ground of jurisdiction by the petitioners and the specific objection raised by them before respondent No.3 regarding exercise of such power by respondent No.1 in 1981, was not decided we declare the order passed by respondent No.3 in the above cases as without lawful authority and of no legal effect and remand the cases to respondent No.3 with the direction to decide the question relating that of jurisdiction of respondents Nos.l and 2 to assess and re‑assess the rent of the property under the Act in accordance with the law. As the cases are being remanded, the petitioner will be at liberty to raise any additional points with regard to validity of the re‑assessment of rent before respondent No.3. There will however, be no order as to costs. H.B.T./A‑799/K Order accordingly.