P L D 1964 (W (PLP)

The ejectment of the appellant has been ordered for the reason that she has defaulted in the payment of rent after a notice of transfer and demand was served on her by the respondent who is a transferee of the property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (herein after referred to as the Act). In the written statement filed by the appellant one of the preliminary objections taken was that the relationship of landlord and tenant did not exist between the parties as the notice served upon the appellant was illegal and contrary to the provisions of section 30 of the Act. There does not seem to be any adjudication on this point by the learned Rent Controller, and the point was not pressed in appeal before the learned Additional District Judge, Lahore. It is, however, now contended, in this second appeal, by Mr. Fazle Ghani that as the appellant did not come into possession of the property under any valid order of allotment, she was not covered by the provisions of subsection (1) of section 30 of the Act, and also for the same reason the terms and conditions on which she was holding the property were not ascertainable, as no such terms and conditions were ever laid down or prescribed by any competent authority. To put it differently, the contention is that the appellant being in unauthorised occupation of the property, she cannot be deemed to be a tenant by operation of law and for that reason the Rent Controller does not acquire jurisdiction in the case even if the appellant has not paid any rent etc., and the only course of action open to the respondent would be to invoke the relevant provisions of the Settlement or Rehabilitation Laws.

2. I see no force in the contentions raised by the learned counsel for the appellant. The opening words of subsection (1) .of section 30 are : "Where any person is in possession of any evacuee house or shop or . . . . . ". The meaning of the term "possession", as defined in the Act, has been amplified by a notification issued by the Central Government on the 13th of 3Octob:r 1959 in pursuance of the second proviso to clause (4) of section 2 of the Act, and as a result persons in unauthorised occupation of evacuee houses or shops have been deemed to be in possession for the purposes of the Act, if they have been in undisputed occupation of the property before the twenty‑first day of December 1958. The appellant has been in occupation of the disputed portion of the property since 1947. It is clear, therefore, that under the terms of the notification of the 13th of October 1959 who is to be deemed to be in possession for the purposes of the Act, and those purposes obviously include the purpose outlined in section 30 of the Act. I have, therefore, no doubt in my mind that by virtue of the provisions of subsection (1) of section 30 of the Act the appellant must be deemed to be a tenant of the transferee.

3. The next question which arises is about the terms and conditions on which she is to be deemed to be holding the property, for being an unauthorised occupant, no terms and conditions were prescribed in her case by any competent authority. I think it cannot be denied that the payment of rent is an implied condition of tenancy, whether or not such a condition is expressly stated or agreed to between the parties. Once a person is deemed to be a tenant, it follows inevitably that the obligation to pay rent exists. The question their would be abut the quantum of the rent payable by a person who is deemed to be a tenant under subsection (1) of section 30 of the Act. This question is easily answered by reference to proviso (a) to subsection (1) of section 30 of the Act which lays down that it shall be lawful for the transferee to charge the rent on the basis of the latest assessment of the municipality or local authority, as the case may be. It seems to me, therefore, that whatever the other terms and conditions of the tenancy may be, the condition regarding the payment of rent is clearly ascertainable even without having been expressly stated or agreed to.

4. In the present case, the rent of the entire house is stated to be Rs. 54 p.m. according to the latest assessment, and the transferee had demanded Rs. 12 p.m. from the appellant, whereas the Rent Controller has now determined the approximate rent to be Rs. 8 p.m. The notice of transfer and demand served on the appellant by the respondent cannot be said to be illegal or contrary to the provisions of the Act simply for the reason that the rent for the disputed portion was assessed at Rs. 12 by the respondent landlord as against Rs. 8 which has now been approximately determined by the Rent Controller. The contention of the learned counsel that the appellant was entitled to occupy the home free of rent cannot, of course, prevail, as she being a tenant, the payment of rent is an essential condition of her occupation of the home.

5. For the reasons given above, I find that even in the case of an unauthorised occupant the provisions of subsection (1) of section 30 come into play and if the rent is demanded in accordance with the provisions of proviso (a) to subsection (I) of that section, the notice of demand cannot be said to be illegal. As the rent has not been paid, there was clearly a contravention of the terms and conditions of the tenancy and the protection A given under subsection (4) of section 30 of the Act were no longer operative. The Rent Controller, therefore, clearly had juris diction to proceed with the matter, and to order ejectment of the appellant for being a defaulter. The second appeal fails and is dismissed in limine. K. B. A. Appeal dismissed.