Criminal Revisions Nos. 1097 and 1098 of 1963 were reported by the Additional Sessions Judge, Rawalpindi by two stereo-typed orders, dated the 8th of October 1963, recommending that the orders of Mr. Fiat Muhammad Khan M. I. C., Rawalpindi/S. D. M.Murree convicting Altaf Hussain and Muhammad Rafique for offences tinder section 116 of the Municipal Administration Ordinance, 1960 with an award of a fine of Rs. 100 and Rs. 50 respectively, may be quashed. This order will dispose of both the references.
2. The short background of the cases is that the Chief Officer, Municipal Committee, Murree, complained to the S. D. M. That Altaf Hussain and Muhammad Rafique were evading payment of a sum of Rs. 575 and Rs. 268.75 respectively due from them to the Municipal Committee, Murree and as such should be proceeded against under section 116 of the Municipal Administration Ordinance, 1960 for having committed an offence in terms of paragraph No. 1 of the Second Schedule to the Ordinance as defined in section 115 ibid. It may be observed that the precise' nature of the arrears mentioned in the complaint was not clarified therein. However, the learned Magistrate proceeding on the assumption that an offence as detailed above had been com--mitted by Altaf Hussain and Muhammad Rafique 'convicted them as stated earlier. Feeling aggrieved they preferred two revision petitions before the Additional Sessions Judge, Rawal--pindi on the ground that assuming that certain arrears as claimed by the Municipal Committee were due from them, the same were not covered by the expressions ' tax ' or `impost' as used in paragraph No. 1 of the Schedule to the Ordi--nance and as such no offence was committed by them. However, from ground No. 4 taken by both the convicts before the learned Additional Sessions Judge it is clear that the arrears assessed against them also included two sums of 75 and Rs. 18.75 due from Altaf Hussain and Muhammad Rafique, respectively, on account of water-tax. The remainder allegedly related to arrears of rent of shops in their respective posses--sion and the default in this regard did not amount to a criminal offence as envisaged by section 115 of the Municipal administration Ordinance.
3. The grounds taken by the petitioners found favour with the learned Additional Sessions Judge who as stated earlier referred the cases to this Court with the recom--mendation that the orders be quashed" (3-A). An offence under the Ordinance has been defined in section 115 ibid in the following terms :- "115. Every act or omission specified in the Second Schedule shall be an offence under this Ordinance." Paragraph No. 1 of the Second Schedule which alone has been and could possibly be invoked in this regard reads as follows :- "1. Evasion of the payment of a tax or other impost lawfully levied by a Municipal Committee."
I have already referred to the ambiguity attached to the claim of arrears against both the aforesaid persons without specifying the nature thereof. However, it is clear that except a sum of Rs. 75 due from Altaf Hussain and a sum of Rs. 18.75 due from Muhammad Rafique on account of water-tax, as admitted by "them the rest of the amount is not covered by the expression " a tax or impost". No doubt the payment of rent can be legitimately claimed by the Municipal Committee from all its tenants on account of their occupation of the Committee's premises, but this would be, at best, a contractual liability of a civil nature as envi--saged by section 26 of the Ordinance. Since, however, such rents cannot be covered by the definition of `imposts' the default in payment thereof would not, therefore, constitute a criminal offence as envisaged by section 115 read with Schedule 2 ibid. As rightly pointed by the learned Sessions Judge in his order pf reference, `an impost' would mean a tax or duty lawfully imposed by the Municipal Committee which by no stretch of imagination can be equated with `rent' as defined in section 3(38) of the Ordinance.,, The definition reads as thus :- "3(38) `rent' means whatever is lawfully payable in money or kind by a tenant or lessee on account of the occupation of any building or land ;"
Obviously, therefore, any imposition of tax or duty has nothing in common with rent, as defined above. It would thus be clear that default in payment of rent would not give rise to any criminal liability, amounting to an offence, as defined in section 115 of the Ordinance. A question might well arise whether in. These circumstances a tenant of a Municipal Committee may be allowed to occupy with impunity moneys belonging to the latter and. Continue to remain a defaulter leaving the Municipal Committee with no remedy except of having recourse to a Civil Court. It may be observed that the Ordinance seems to have taken suffi--cient care of such a situation. Subsection
(2) of section 38 of the Ordinance makes "all moneys claimable by a Municipal Committee under the Ordinance" recoverable as arrears of land revenue. It reads as follows :-- " 38(2) All arrears of taxes, rates, tolls and fees, and other moneys claimable by a Municipal Committee under this Ordinance, shall be recoverable as a public demand or as arrears of land revenue."
4. The provision does not stop short at this but places yet another and more effective weapon in the hands of the Municipal Committee for the recovery of arrears of moneys claimable by it.
Subsection (3) reads as follows:- "(3) Notwithstanding the provisions of subsection (2), the Government may empower any Municipal Committee to recover arrears of taxes, rates, tolls fees and other moneys claimable by the Municipal Committee under this Ordinance by distress and sale of movable property belonging to the person concerned, or by attachment and sale of the immovable property belonging to him."
5. I have already referred to the provisions dealing with the modes of contracts or on behalf of a Municipal Committee as envisaged by section 26 giving rise to contractual rights and liabilities.
Obviously any sums claimable by the Municipal Committee on account of rents would be covered by the expression "other moneys claimable by a Municipal Committee under this Ordinance", as used in section 38 (2) ibid. From this it would be clear that the Municipal Committee would not be helpless to deal with its defaulting tenants. Notwithstanding this however, the fact remains that the non-payment of rent does not constitute a criminal offence as envisaged by section 115 ibid.
6. The upshot of the discussion, therefore, is that no offence was committed by Altaf Hussain and Muhammad Rafique in so far as the alleged default on their part in regard to the payment of rent due from them is concerned. However, from their own showing, - they have accepted the liability of payment of Rs. 75 and Rs. 18.75 on account of water-tax, for which they were not separately billed and would be otherwise prepared to make payment thereof. Con--sequently, the recommendation of the learned Additional Sessions Judge is accepted and the conviction and sentence of Altaf Hussain and Muhammad Rafiq are hereby set aside.