P L D 1975 Karachi 18 (PLP)

TUFAIL ALI A. REHMAN, C. J.‑The petitioner in this case purchased fn open auction held by the Settlement Organization non‑residential commer cial premises, that is to say, a godown bearing the No. G./1 and the portion of ground abutting and appurtenant thereto bearing Survey Sheet No. 12, Survey No. 103 1 C 625, Jodia Bazar, Napier Quarters, Karachi‑2 ; respondent No. 1 who was one of the tenants thus became by operation of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a statutory tenant of the petitioner.

2. The assessed rental value of the premises which obtained at the time of the purchase in 1961, had been fixed in 1951 at Rs. 323 per month. Respondent No. 2 who is the Chief Assessor and Collector of the Karachi Municipal Corporation then fixed the assessment with effect from 1‑7‑1960 at Rs. 360 and sent a notice to the petitioner and to the tenants including respondent No. 1 inviting objections within one month, which, admittedly is the prescribed period for filing any objections. No objections were filed but an application was made on the 26th March 1963, by respondent No. 1, to the Chairman who confirmed the rental value of Rs.

360. Against this respondent No. 2 filed an appeal to the Commissioner who is under section 119 the authority prescribed for hearing appeals from the orders of the Chairman or Vice‑Chairman of a Municipal Committee. The Commissioner who is respondent No. 4 allowed this appeal and reduced the value to Rs. 250 per month and it is against this appellate order that the present petition is directed.

3. The only ground that is taken up in the written petition and, at first, the only argument that was orally canvassed before us was that the respondent No. 4 was acting in the course of a second appeal and his powers of interference were, therefore, confined to questions of law. It a was claimed that he had really entered into questions of fact and that this rendered his decision without lawful authority. In my view the argument in wholly misconceived. The principle that in the course of a second appeal the Court cannot go into questions other than those of law is based upon the concept of a second appeal under section 100 of the Civil Procedure Code which itself lays down this limitation. Outside this provision the expression "second appeal" has no technical meaning, whatever, and the authority of respondent No. 4 to hear an appeal arises from section 119 of the Municipal Administration Ordinance, 1960, which reads thus: "

119. Appeals.‑(1) Any person aggrieved by an order passed by a Municipal Committee or its Chairman or Vice‑Chairman in pursuance of this Ordinance or the rules or bye‑laws, may appeal to such authority, in such manner and within such period as may be prescribed. (2) Any order passed in appeal shall be final and shall not be called in question in any Court." What respondent No. 4 was hearing was a second appeal only in the sense that this was the second time that the matter was being agitated before an appellate authority. It was by no means a second appeal under section 100 of the C. P. Code. It was an appeal without further limitation although from an order which in this case happens to be as an appellate order. I can see no reason whatever and none has been advanced at the bar why any qualification should be read into section 119 so as to limit the power of the appellate authority.

4. Looking at this provision, however, we ourselves could not under stand how respondent No. 3, that is, the Chairman of the Corporation exercised any powers in this case at all since, admittedly, the period within which objections could have been filed to the proposed assessment expired without any such being presented. It appears to us, therefore, prima facie, that the assessment had become final. We were, however, referred by learned counsel for the Municipal Corporation to the West Pakistan Muni cipal Committee (Appeals) Rules, 1960 made under the Municipal Admi nistration Ordinance, Rule 2, of which reads thus "

2. Appellate authority.‑Unless otherwise provided, appeals against the orders of the authorities specified in column I of the Schedule annexed to these rules shall lie to the authorities specified in column 2 thereof." A reference to the Schedule to the Rules shows that in the case of an order made by "an officer or servant of a Municipal Committee the appellate Authority will be the Chairman. It is thus clear that c the Chairman had the power of hearing an appeal. Learned counsel for the petitioner then objected that if this be so and clearly upon his own case this was so since he was criticising the order of respondent No. 4 as being outside the ambit of a second appeal‑the appeal was hopelessly time‑barred. Now .the period of limitation is prescribed in Rule 3 of the same Rules which reads thus "

3. Period within which appeals are to be filed.‑(1) Unless otherwise provided in any law for the time being in force or in any rule framed under the Municipal Administration Ordinance, 1960, the period of limitation for an appeal to which these rules apply shall be 30 days from the date of the order appealed against. (2) An appeal may be admitted after the period of limitation prescribed in sub‑rule (1), if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within such period." It will be noticed that the rule itself gives the appellate authority a power of condonation if the appeal is filed beyond time. It is true that there is nothing before us to show that this power was exercised and under what circumstances. The respondents are, however, hardly to blame for not bringing this material to Court for it was not even the case of the petitioner at any stage that the appeal to the Chairman itself was incompetent or time‑barred and that, therefore, the original assessment became final in which view of the matter of course there would be no power in respondent No. 4 to interfere under section 119 of the Ordinance. We cannot at this stage set up for the petitioner an entirely new case which he has never pleaded or asserted. In these circumstances we must presume in favour of the regularity of official action.

5. Reverting to his argument that the order of respondent No: 4 transgressed the limits of the authority of a second appellate Court learned counsel for the petitioner then contended that respondent No. 4 himself considered that he was a second appellate court within the meaning of section 100 and yet went on to interfere on facts. Even if he had so misdirected himself I do not think that would be a sufficient reason for our interference in the course r;: a petition under the Constitution for, upon that view of the matter, the authority would still have the jurisdiction to do what he has done, In fact, however, in the course of his order respondent No. 4 said no such thing. His reference to section 100 of the C. P. Code is in the course of the summary which he states of the argument raised before him and then goes on to say : "But in this case the appeal is filed under section 119 of the Municipal Administration Ordinance. Assessment proceedings are summary proceedings and, therefore, neither the proceedings are fully conducted nor is any one allowed to cross‑examine witnesses, etc." Clearly so far from holding that he is a second appellate Court within the meaning of section 100, C. P. Code he is holding that he is an appellate authority under section 119 of the Ordinance.

6. It was finally argued that respondent No. 4 has proceeded merely upon the assessment made by the Excise and Taxation Department and has not applied his mind to the merits of the matter at all. A perusal of the order shows that this is an entirely unjustified criticism. Having said that he had heard arguments on both sides respondent No. 4 goes into the figures of various assessments, holds that the non‑increase in the rate of assessment during all the preceding years was unjustifiable and finally considers the situation of the premises and its condition. It is only there after that he says "It appears that the property is an old building and, therefore, the assessment done by the Excise and Taxation Department appears to be fair and proper." The next sentence which is the last sentence in the order is the formal one order announcing that he is accepting the appeal. So far from basing himself upon the assessment of the Excise and Taxation Department for reasons which he has already detailed he has come to the view that that assessment was fair.

7. I can, therefore, see no substance in this petition which I would, therefore, dismiss with costs. FAKHRUDDIN G. EBRAHIM, J.‑I agree. S. A. H. Petition dismissed.