P L D 1967 Lahore 856 (PLP)

ANWARUL HAQ, J.‑This judgment will dispose of Letters Patent Appeals Nos. 4 and 7 of 1965 which concern the same property, namely, shop No. P‑127, situated in Buwana Bazar, Ward No. 6, Lyallpur. The shop was an evacuee property and was in the possession of the appellant Muhammad Amin who was paying rent for it at the rate of Rs. 8 per month to the Rehabili tation Department. The respondent Jamshed Ali purchased the shop in open auction on the 8th of July 1960. On the 18th of May 1961 the Municipal Committee of Lyallpur revised the assess ment of this property to Rs. 84 per mensem. The respondent thereupon demanded rent from the appellant at the enhanced rate of Rs. 84 per mensem, and on the appellant's failure to meet the demand the respondent brought an application for the appellant's ejectment on the 27th of July 1961 under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance). The grounds urged by the respon dent were that the appellant had defaulted in the payment of rent for more than two months, that the shop was required by the respondent for his personal use and that he wanted to reconstruct the shop as it was in a dilapidated condition.

2. The application was resisted by the appellant by asserting that no plan of re‑construction had been sanctioned by the Municipal Committee, that under the Settlement Law the appellant had a right to remain in occupation for three years (since raised to six years), that during this period of three years the respondent could not demolish the shop and that, in any case, the appellant had been paying rent to the Settlement Department at the rate of Rs. 8 per mensem which was the proper and fair rent and he had deposited rent at that rate from the 8th of July 1960 to the 8th of July 1961 with the Rent Controller and there had been no default on his part. Before framing issues in the case the learned Rent Controller examined the Tax Inspector of the Municipal Committee of Lyallpur who produced the Assessment Register for the year 1960‑61 showing the monthly rent to be Rs.

84. By comparing this assessment with the assessment of the neighbouring shop bearing No. P‑128, the learned Rent Controller determined the amount of rent due approximately at the rate of Rs. 69 per mensem and directed the appellant to deposit Rs. 1,083 as arrears of rent for the period from 8th July 1960 to the 31st of December 1961 after making adjustment of Rs. 136 already paid by the appellant before the. 5th of March 1962. The appellant was also directed to deposit the future monthly rent before the 5th of each succeeding month.

3. The appellant filed an appeal against this order which was partly accepted by the appellate authority and the rent payable for the interim period was reduced to Rs. 50 per mensem. The appellant was still not satisfied, and preferred a second appeal, namely, S. A. O. No. 128 of 1962, in this Court. When this appeal came up for hearing before Muhammad Yaqub Ali, J on the 21st of June 1962, he expressed the opinion that the question of the appeal-ability of such an interim order fixing approximately the rate of rent due should be examined by a Division Bench. Subsequently, this question was referred to a Full Bench. By a majority judgment it was held that such an order was appealable. The appeal (namely, S. A. O. No. 128 of 1962) was accordingly heard by our learned brother A. R. Sheikh, J. and dismissed on the 22nd of January 1965. L. P. A. No. 7 of 1965 has arisen out of this order.

4. During the pendency of S. A. O. No. 128 of 1962 in this Court, it was brought to the notice of the Rent Controller that the appellant Muhammad Amin had committed default in obeying the order of the appellate authority in the matter of the deposit of the arrears of rent inasmuch as he had deposited only Rs. 1,019 instead of Rs. 1,

088. On the 8th of October 1962, the appellant made an application requesting for condonation of delay and extension of time to make up the deficiency on the plea that the full sum was not deposited by him due to a mistake in calculation. The application was opposed by the respondent landlord on the ground that the default was intentional and that the delay could not be condoned under the law. The learned Rent Controller came to the conclusion that as the order for the deposit of the arrears of rent has been passed by the learned District Judge acting in appeal, the Rent Controller was not competent to grant any extension in time, nor did he have any authority to condone delay. He further observed that the order of the appellate authority was unambiguous and the tenant should have correctly worked out the amount of rent due from him. On these findings the learned Rent Controller passed an order on the 20th of Novem ber 1962 striking off the defence of the appellant and ordering him to put the respondent in possession of the premises. The appellant once again went up in appeal to the learned District Judge but the same was dismissed on the 19th of July 1963. Thereupon the appellant came up in second appeal to this Court in that behalf as well. This was S. A. O. No. 265 of 1963 and it has also been dismissed by the same order dated the 22nd of January 1965 by which the appellant's other appeal bearing No. 128 of 1962 was dismissed. L. P. A. No. 4 of 1965 is directed against the dismissal of S. A. O. No. 265 of 1963.

5. Most of the contentions raised before the learned Judge in Chambers by Ch. Aziz Ahmad, the learned counsel for the appel lant, related to the jurisdiction of the Rent Controller to enter tain a respondent's application under section 13 of the Ordinance. The validity of the municipal assessment of rent at the rate of Rs. 84 per mensem was also questioned. After noting these con tentions the learned Judge proceeded to observe that the question of absence of jurisdiction on the part of the Rent Controller was not raised during the proceedings before that officer, and as it was a mixed question of law and fact, it could not be permitted to be raised for the first time at the second appellate stage. On this view of the matter, the learned Judge dismissed both the appeals with costs.

6. The main points urged by the learned counsel for the appellant before us are (1) That the learned Judge in Chambers has erred in thinking that the question of jurisdiction was not raised before the Rent Controller, as in para. 2 of the written statement filed by the appellant it was clearly stated that the respondent's application was premature. (2) That the question of jurisdiction being a question of law could, in any case, be permitted to be raised even in second appeal. (3) That the Rent Controller had no jurisdiction to entertain the respondent's application for the following reasons:‑ (a) That there was no averment in the application that the notices as required by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) had been served on the appellant, (6) that the Rent Controller being a tribunal of limited jurisdiction, he could not even proceed to determine the question of default of payment of rent by the appellant, as such a question fell within the exclusive jurisdiction of the Settlement/Rehabilitation officials under sections 25 and 29 of the Act, and (c) that before proceeding with the application it was incumbent upon the Rent Controller to give a finding regarding default in the payment of rent, as such a finding was a condition precedent for his assumption of jurisdiction in terms of sub section (3) of section 30 of the Act. (4) That the latest assessment made by the Municipal Committee for the year 1960‑61 at the rate of Rs. 84 per mensem was a nullity m the eye of law in view of section 4 of the Municipal Administration Ordinance, 1960 read with Schedule I of that Ordinance. (5) That the new assessment could not operate retrospectively from the 18th of July 1960 and could at best take effect from the date it was made, and counting from that date there was no default on the part of the appellant. (6) That under section 9 of the Ordinance the municipal assessment could only form the basis for the approximate determination of rent, and not be the actual amount `realizable from the tenant and, therefore, the Rent Controller and the appellate authority had erred in insisting that the rent assessed should actually be paid. (7) That, in any case, the default on the basis of which the appellant's defence was struck off was not intentional and was the result merely of a miscalculation regarding as amount of Rs. 79 only and accordingly the delay should have been condoned by the Rent Controller or the appellate authorities which undoubtedly had the power to do so.

7. The first two points may be taken up together. In the written statement filed by the appellant there is no averment at all regarding the jurisdiction of the Rent Controller and in the preliminary paragraph 2 the only statement made is that the application is premature and liable to be dismissed on that ground. It is clear that this statement cannot be regarded as an objection to the assumption of jurisdiction by the Rent Con troller. However, it is well‑settled that a question of law or a question of jurisdiction can be permitted to be raised even in second appeal. In Connecticut Fire Insurance Company v. Kavanagh (I, R 1892 A C 473) Lord Watson observed that when a question of law is raised for the first time in a Court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interest of justice, to entertain the plea. This dictum was followed by the East Pakistan High Court in Mongal Muchi v. Abu Musa Ahmad Mustafa and others (P L D 1958 Dacca 26) as well as in Jiando Khan v. Hakim Muhammad Ishaq (P L D 1964 Kar. 61). It is clear, therefore, that if the question of jurisdiction raised in this case on behalf of the appellant can be decided on the basis of admitted or proved facts, already on the record, then the question should be permitted to be raised in second appeal, even though it was not specifically raised in the Courts below. On this view of the matter, we consider that we should examine the question of jurisdiction as raised by the learned counsel for the appellant, as it can be decided on the basis of the facts already on the record.

8. The first ground on which the jurisdiction of the Rent Controller is denied is that there was no averment, in the appli cation instituted by the respondent, to the effect that the notices as required by section 30 of the Act had been served on the appellant. Section 30 of the Act creates a statutory tenancy in favour of a person in possession of any evacuee house or shop which is transferred to any other person under the provisions of the Act, and such tenant is to continue on the same terms and conditions as were applicable to him immediately before the transfer, subject to certain limitations mentioned in the section itself. Proviso (b) to subsection (1) of section 30 prescribes that a notice of transfer has to be served by the transferee on the tenant by registered post (acknowledgment due), within one month of the transfer, and if that is done, then the period of protection extending to six years will commence from the date of transfer; but if the notice is given after the expiry of one month, then the commencing point for the period of protection is the date of receipt of such notice by the tenant. Clause (i) of subsection (3) of the same section then prescribed a notice of demand, again by registered post (acknowledgment due), and the tenant is placed under an obligation to pay rent within three months of the date of receipt of this notice. If the tenant does not pay rent within the stipulated period, then he loses the protection envisaged by proviso (b) to subsection (1), and under subsection (4) the relationship of landlord and tenant is then to be regulated in accordance with the law for the time being in force relating to such relationship. It is clear, therefore, that before a statutory tenant can be dealt with by the Rent Controller, he has to be served with the notices of transfer and demand, and there has to be a default on the part of the tenant in the payment of arrears of rent within three months from the date of receipt of the notice of demand.

9. Mr. Aziz Ahmad has referred us to rules 1 and 11 of Order VII of the Civil Procedure Code in support of his contention that if there is no averment in the application regard ing the service of the two statutory notices in the prescribed manner, then the Rent Controller should reject such an application. Rule 1 of Order VII prescribes the particulars which should be mentioned in the plaint and clause (f) relates to the facts showing that the Court has jurisdiction. "Clause (d) of rule 11 of the same Order says that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. The argument of the learned counsel is that since the application did not disclose the service of the statutory notices, the Rent Controller should have come to the conclusion that the application was barred by law, namely, section 30 of the Act.

10. As regards the mandatory nature of the notices, the learned counsel has placed reliance on E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 536), Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. (P L D 1965 Lab. 82) and Muhammad Shafi v. Abdul Hayee (P L D 1965 Lab. 681).

11. There is no controversy in this case on the question whether there is a statutory obligation on the transferee to serve upon the statutory tenant the notices of transfer and demand as prescribed by section 30 of the Act. The question of default naturally arises after the notices have been served, more especially the notice of demand. It is true that in the application pre sented by the respondent there was no averment that the notices had been served, but at the same time there was no assertion by the appellant as well that he had not received such notices. In fact, even at the Bar, the learned counsel for the appellant did not take up the position that the notices had not been served, and the argument was confined merely to a technicality, namely, that the respondent had omitted to mention the service of these notices in his application. We consider that the jurisdiction cannot be denied to the Rent Controller merely on the ground that the factum of the service of the two statutory notices was not mentioned in the application. The provisions of Order VII of the Civil Procedure Code do not strictly apply to proceedings before the Rent Controller, but even if the principle embodied in clause (d) of rule 11 of Order VII is invoked, it is clear that on the same analogy, under Order VI, rule 6, C. P. C., an averment for giving of such a notice must be implied in the petition and it was for the appellant, under Order VIII, rule 2, C. P. C., to have alleged in his written statement the fact of non‑service of these notices to show that the petition was not maintainable. In this view of the matter, we are fortified by the decision in Mehdi Hassan v. Ghulam Muhammad, etc. (P L D 1964 Lah. 648). It seems to us, therefore, that although it would obviously be desirable for transferee landlords to make specific mention that they had served the statutory notices on the tenant concerned, yet the jurisdiction of the Rent Controller is not automatically ousted simply on account of an omission to make such mention.

12. The next ground urged in this behalf is that the Rent Controller being a tribunal of limited jurisdiction, could not proceed to determine the existence of facts which conferred jurisdiction upon him, namely, whether there was default in the payment of rent by the appellant, especially as such a question fell within tile exclusive jurisdiction of the Settlement/Rehabili tation authorities under sections 25 and 29 of the Act. We shall first take up the second part of the argument, namely, that even after the permanent transfer of the property the question of default in the payment of rent remains within the exclusive jurisdiction of the Settlement/Rehabilitation authorities. Mr. Aziz Ahmad placed reliance on Subedar Muhammad Afzal v. Syed Nafis Ahmad and others (P L D 1962 Lah. 45) in which it was held that the power of ejectment conferred by section 29 of the Act was exercisable in respect of evacuee property or property acquired under section 3 of the Act, but does not extend to property which has already passed into the ownership of the transferee. That was a case where the property had not yet passed into the owner ship of the auction‑purchaser for the reason that he had not yet paid the full auction price, the Provisional Transfer Order had not yet been issued in his favour and possession of the entire area had not been delivered to him. It will be seen that the conditions mentioned in that case are not present in the instant case and, therefore, the dictum is not attracted. Even otherwise, that case was dissented from by a Full Bunch of this Court in Dr. Cowes C. Mehta v. Additional Settlement and Rehabilitation Commis sioner and others (P L D 1963 Kar. 938) in which the question with which we are dealing here was directly answered against the appellant. One of the questions referred to the Full Bench was "whether section 29 of the Act is available for ejectment of a person in possession of a house which has been transferred to another under a valid Provisional Transfer Order. The answer returned by the Full Bench was that section 29 of the Act is not available for the ejectment of such a person, except for non‑payment of dues to the department in relation to the period prior to transfer. This view was endorsed by a Full Bench of five Judges in The Bank of Bahawalpur Ltd., Lahore v. The Chief Settlement and Rehabili tation Commissioner, Lahore, etc. (P L D 1966 Lah. 515) and it was reiterated that "section 30 aims at affording protection to persons in possession and they can be ejected only in specified limited circumstances. The protection so afforded can be real and substantial only if to such persons section 29 is not applicable". It is, therefore, clear that section 29 of the Act has no application in the present case and the only means available to the respondent for ejecting the appellant was by invoking the jurisdiction of the Rent Controller under the ordinary law applicable to the relationship between a landlord and tenant, provided, of course, that the conditions mentioned in section 30 were satisfied.

13. In support of his contention that the Rent Controller being a tribunal of special and limited jurisdiction, has no jurisdiction to determine facts which form the basis of his jurisdiction, Mr. Aziz Ahmad has referred us to Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (P L D 1965 S C 698). The relevant observations appear on page 704 of the Report and are as follows:‑ "A purely administrative officer who is empowered. to pass an order if certain circumstances exist, has no jurisdiction to determine these circumstances and the objective existence of these circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present it will declare the order to be void. Of course, although the officer has been granted no jurisdiction to determine any facts, he will have to ascertain whether the requisite circumstances exist, for otherwise he cannot pass the order, but his conclusion as the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist . . . . . So far as special judicial tribunals are concerned they are given jurisdic tion to determine certain facts but they are not judges of the facts which are the foundation .of their jurisdiction nor can they define the limits of their own jurisdiction. If an election tribunal is empowered to hear election petitions in respect of particular elections it will always have to determine whether the petition lodged before it relates to such an election, but if as a matter of fact that petition does not relate to such an election, any proceedings taken by the tribunal in that petition will be void in spite of the finding by the tribunal to the contrary . . . . . ."

14. In the case before their Lordships the question was whether the jurisdiction of a Civil Court was barred in view of the provisions appearing in sections 22 and 25 of the Act, and the observations quoted above were made in that context. It is clear that these observations cannot be construed as implying an ouster of jurisdiction on the part of the special judicial tribunal to determine the existence of facts which are a pre requisite for the exercise of its jurisdiction, the observations only bring out the proposition that such a finding of fact would not be immune from scrutiny by a Civil Court, for the reason that it is not within the exclusive jurisdiction of the special tribunal. According to our understanding of these observations, the Rent Controller would have the jurisdiction, in fact he would be under a duty, to determine whether any of the conditions mentioned in section 30 of the Act giving him jurisdiction exists; but his finding in this behalf may be open to challenge in an ordinary Civil Court in spite of the bar contained in subsection (5) of section 15 of the Ordinance. However, it is not necessary for us to decide this last point in the present case.

15. There are some observations in the well‑known case of Jamal Shah v. Election Commission (P L D 1966 S C 1) which are of assistance in this connection. While discussing the scope of Article 98 of the Constitution viz‑a‑viz special tribunals, Kaikaus, J. observed (on page 54 of the Report) that "all administrative officers have, before they act, to find out whether circumstances which entitle them to act do exist". His Lordship, however, added that "the mere fact that an officer has to find out before lie acts a whether certain facts exist does not make that officer a judicial tribunal for determination of such facts". From these observations as well it becomes clear that the Rent Controller has the power to determine whether the statutory tenant has defaulted in the payment of rent within the prescribed time after the receipt of a notice of demand, and only when he answers this question against the tenant, can he proceed to assume jurisdiction under the Ordinance.

16. This brings us to the last point urged by Mr. Aziz Ahmad on the question of jurisdiction, namely, that it was incumbent upon the Rent Controller to determine the question of default in the first instance before taking any action whatsoever under the provisions of the Ordinance, and especially before passing an order under section 13 (6) of the Ordinance for the deposit of the arrears of rent and striking off the defence of the tenant in case of failure to comply with such an order. In this behalf the learned counsel placed reliance on Muhammad Ismail v. Israr Ahmad (P L D 1961 Lab. 601), Mehdi Hassan v. Ghulam Muhammad, etc. (P L D 1964 Lab. 648) Muhammad Shafi v. Abdul Hayee (P L D 1965 Lab. 681) and Muhammad Rizwan v. Ashiq Ali (P L D 1966 Quetta 11). In the first‑mentioned case it was held by a Division Bench that "in an action for eviction if the respondent denies that he is a tenant under the petitioner, the Controller must put the controversy in an issue and determine whether the plea raised in defence has merit. If the answer be that the respondent is a tenant under the petitioner, section 13 (6) of the Ordinance will immediately come into operation and the Controller may pass such orders as he deems fit in the circum stances of the case". It was further observed that "the issue whether the relationship of landlord and tenant exists between the parties is one of jurisdiction and should be determined first; in case the answer be in the negative, the Controller loses seisin over the lis and must stay his hands forthwith. A Rent Con troller is not a Civil Court of general jurisdiction but is a Special Tribunal and as soon as it is established that the relation ship of landlord and tenant does not exist between the parties, his jurisdiction over the subject‑matter of the lis and the parties terminates".

17. The same principle was armed in Mehdi Hassan's case. In the case of Muhammad Shafi the question now before us was directly considered by our learned brother Sardar Muhammad Iqbal, J. and it was held: "The fact that a relationship of landlord and tenant was created between the parties under clause (1) of section 30 of the Act, by itself, could not warrant an action under clause (6) of section 13 of the Ordinance against the appellant. The Rent Controller could ask the tenant to deposit the rent only if he had jurisdiction in the case. He could have jurisdiction only if it was proved that the transferee had given a notice and the tenant had failed to pay or tender the amount of rent within three months. The Rent Controller had, therefore, to determine this issue before he could direct payment under clause (6) of section

13. Where the notice was given on the 7th of March and the application for ejectment was filed on the 25th of March, and three months had obviously not elapsed between the receipt of notice and the filing of the petition, it was clear that the tenant had not contravened the provisions of sub- clause (i) of clause (3) of section

3. The petition was, there fore, premature. The Rent Controller had no jurisdiction in the case at all. The order passed by him was one without jurisdiction and hence a nullity."

18. In the last case relied upon by Mr. Aziz Ahmad, namely, Muhammad Rizwan v. Ashiq Ali, the provisions of section 30 were analysed at some length by Noorul Arlin, J., and it was concluded that "the application of the Ordinance is attracted to such tenants or occupants only if subsections (2) and (3) of section 30 of the Act have come into operation. It is only when any of the events enumerated in subsection (2)(sic) of section 30 of the Act have happened that the general law relating to the relationship of landlord and tenant can be applied. Therefore, before proceeding under the Ordinance or to make any order under section 13 thereof, it will first have to be determined whether there is default on the tenant's part to pay the rent within the period prescribed by clause (i) of sub section (2). A finding to this effect is the condition precedent to confer jurisdiction on the Controller to proceed under the Ordinance against tenants and occupants of properties under the Act.

19. On behalf of the respondents, Ch. Muhammad Siddique referred us to the Full Bench decision in Akhtar Ali Parvez v. Altafur Rehman (P L D 1963 Lab. 390), in an attempt to show that their Lordships did not contemplate that in cases of the present kind an inquiry into the question of default must be held before taking action under section 13 (6) of the Ordinance. We think, however, that the case in question does not support the learned counsel for the respondent. The question referred to the Full Bench was whether, where there is a denial by the alleged tenant of the relationship of landlord and tenant, it is incumbent upon the Rent Controller to decide first the question of the existence or non‑existence of that relationship, and only then to order the tenant to deposit arrears of rent, etc., if the preliminary question is decided against him. The answer returned by the Full Bench was that action under subsection (6) of section 13 of the Ordinance could only be taken when it is not disputed that the Rent Controller has jurisdiction in the matter or when having been disputed, it has been decided that the Rent Controller either has the jurisdiction, or is bound to proceed on the assumption that he has the jurisdiction under section

13. It is clear from this dictum that in the view of the learned Judges the question of jurisdiction has to be decided first. In the case before them the relationship of landlord and tenant was being denied, and it was found that the denial could not be accepted because the property had in fact been transferred to the opposite‑party and, therefore, by operation of the statute the appellant had become a tenant. The question as it has arisen in the present case was not before the learned Judges, but `the principle enunciated by them is clearly applicable. It seems to us, therefore, that, in view of the authorities to which we have already referred, the Rent Controller could assume jurisdiction in the present case only after giving a finding that there bad in fact been default on the part of the appellant in the payment of the arrears of rent. within three months of the receipt of the notice of demand. However, no such determination was made by the Rent Controller before passing an order under section 13 (6) of the Ordinance. To this extent, therefore, the order must be held to be without jurisdiction, with the result that all the conse quences which have ensued from the non‑compliance of that order must be regarded as a nullity in the eye of law.

20. We now proceed to consider the contention that the municipal assessment relied upon by the respondent as well as by the learned Rent Controller and the learned District Judge was invalid and could not be acted upon. It has already been stated that the appellant was paying rent at the rate of Rs. 8 per month to the Rehabilitation/Settlement Department. However, accord ing to the statement of Taxation Inspector Muhammad Aslam, the assessment was revised by the Municipal Committee on the 18th of May 1961 for the year 1960‑61 and raised to Rs. 84 per month, although the learned Rent Controller fixed the rate at Rs. 69 per month and the learned District Judge in appeal reduced it to Rs. 50 per month. The argument is that after the promulgation of the Municipal Administration Ordinance (10 of 1960) on the 11th of April 1960 and its enforcement with effect from the 1st of May 1960, repealing the Municipal Administra tion Act of 1911, the new assessment could be made only in accordance with the rules to be framed under the Ordinance, as contemplated by subsection (1) of section 41 of the Ordinance, and as the rules were not framed until the 28th of June 1962, the new assessment made on the 18th of May 1961 was invalid and incompetent. The rules which were made in June 1962 gave power of assessment to the Excise and Taxation Department, although by an amendment in 1964 the power has been restored to the Municipal Committee.

21. The question of the validity of an assessment made by the Corporation of the City of Lahore between the 1st of May 1960 and the promulgation of the rules on the 28th of June 1962 was considered by a Division Bench of this Court in The Punjab Association Club v. The Corporation of Lahore, etc. (P L D 1963 Lah. 380) and it was held that "from the 1st of May 1960 no officer of the Corporation had the power to re‑assess the property in dispute, owing to the enforcement of the Municipal Administration Ordinance and the repeal of the previous enactment applying to the Corporation". It was further observed that although it was true that section 4 (2) of the Ordinance provided that where an enactment stood repealed under subsection (1), any tax imposed or assessed under such enactment would, so far as it was not inconsistent with the provisions of the Ordinance and the rules, be deemed to have been imposed or assessed under the Ordinance, yet this merely meant that the old assessment was to continue till legally entered, and could not be construed as investing the officers of the Corporation with a power to carry out a fresh assessment. It was added that in fact until the rules were framed, no fresh assessment could have been carried out. The rules promulgated on the 28th of June 1962, as already stated, contemplated that unless otherwise directed by Government, the Buildings and Lands tax shall be assessed and collected on behalf of the Municipal Committee by an officer of the Provincial Excise and Taxation Department.

22. We consider that the dictum in the case just cited applies with full force to the facts before us, with the result that the assessment carried out by the Municipal Committee on the 18th of May 1961 must be held to be invalid and inoperative. After the enforcement of the Municipal Administration Ordinance with effect from the 1st of May 1960 the assessment could only be revised in accordance with the rules promulgated on the 28th of June 1962, as amended from time to time.

23. The position which emerges from the foregoing discus sion is that before ordering action under section 13 (6) of the Ordinance it was incumbent upon the learned Rent Controller to determine whether the appellant had committed a default in the payment of the arrears of rent in terms of clause (i) of sub section (3) of section 30 of the Act. In doing so, the learned Rent Controller had to take note of the fact that the latest assessment on which reliance was placed by the respondent was not valid, with the result that the appellant would be entitled to continue as a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer, as contemplated by subsection (1) of section 30 of the Act. If he comes to the conclusion that there has been default on the part of the tenant, he can then assume jurisdiction to deal with the case under the various pro visions of the Ordinance.

24. On this view of the matter, It is not necessary for us to deal with the other points raised by Mr. Aziz Ahmad on behalf of the appellant we would accept both the appeals set aside all the orders so far made by the learned rent controller as well as by the learned district judge acting as appellate authority as being without jurisdiction and remand the case to the learned rent controller for proceeding in accordance with law as explained in the preceding paragraphs in view of the legal question involved the parties are left to bear their own costs in this court.