' SAIDUZZAMAN SIDDIQUI, J.-The appellant has been ordered to be evicted from the premises both on the ground of default in payment of rent as well as personal and bona fide requirement of the respondent. I have heard Mr. Niazy A. Khaliq, Advocate for the appellant and Mr. Habibur Rehman, Advocate for the respondent.
2. The learned counsel for the appellant has raised the following contentions is this appeal :-
(i) That the Karachi Municipal Corporation ceased to have authority or jurisdiction to carry out fresh assessm ent of the properties in Karachi under the City of Karachi Municipal Act, 1933 (Bombay Act, XVII of 1933) upon promulgation and enforcement of Municipal Administration Ordinance, 1960 (Ordinance X of 1960) which repealed Bombay Act XVII of 1933 and as such the assessm ent made by K. M. C. On 7-10-1961 in respect of the subject property was invalid.
(ii) That as and from July 1953, the assessment of properties carried out by the Excise & Taxation Department was binding and should be held to be the latest assessment of the subject property.
(ill) That on the date the application was filed, the appellant could not be held to be a defaulter in view of the fact that rents in accordance with the assessment carried out by the Excise & Taxation Department were already paid or in the alternative were duly tendered to the respondent before filing of the ejectment application.
(iv) That the application on the ground of personal and bona fide, needs of the respondent was premature, as the protection period of six years available to the occupant of an evacuee property under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had not expired when the application for ejectment was filed before the Rent Controller by the respondent.
' In order to appreciate the above contentions raised by the learned counsel for the appellant, it is necessary to state herein some of the facts, which will be relevant for deciding the above contentions.
3. The subject-matter of the dispute is a shop premises bearing No, RC 8/4.A/234, G-I, behind Civil Hospital, Karachi. This property was transferred to the respondent under the settlement laws by a Provisional Transfer Order dated 14-10-1960. It is admitted that after transfer of the property in favour of the respondent a notice dated 16-4-1962 was served upon the appellant through registered post A/D, which was both a notice of transfer as well as a notice of demand. The rent was claimed in this notice by the respondent In respect of the shop at the rate of Rs, 75 per month, which was said to be the latest assessment of the property. As no rent was tendered or paid after service of notice, application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, was filed by the respondent against the appellant before the Rent Controller on the grounds of personal and bona fide requirement, default in payment of rent from 14-11-1960 up to the date of riling of the application and subletting. The Rent Controller after recording the evidence in the case came to the conclusion that the rent of the premises was Rs, 75 per month and since the appellant had admittedly not paid or offered rent to the respondent at this rate at any time after the transfer of property in favour of respondent, he was held to be a defaulter in payment of rent. On the issue of personal and bona fides requirement, the respondent's needs were held to be genuine. Issue of subletting was decided against the respondent. On the basis of the findings on the issues of default and personal and bona fide requirement the ejectment of the appellant was ordered from the premises. This order was upheld by the first Appellate Court in appeal.
4. The learned counsel for the appellant in support of his first contention relied upon subsection (1) of section 4 of the Ordinance X of 1960, which provides that on coming into force of the Ordinance the enactments mentioned in the First Schedule to the Act shall stand repealed. In the Schedule to the Ordinance at Serial No, 10 the Bombay Act XVII of 1933, under which the Karachi Municipal Corporation exercised power, is mentioned. Sections 1 and 3 of the Ordinance came into effect throughout West Pakistan on the promulgation of the Ordinance on 11-4-1960 and the remaining provisions of the Ordinance were extended to Karachi, on 16-4-1960 by a subsequent notification.
The learned counsel argued that not only that the Ordinance was extended to Karachi but that the rules which were also framed thereunder, namely West Pakistan Municipal Committee (Building and Land Tax) Rules, 1962, came into effect from 28-6-1962, and Rule 2-A whereof provided that the valuation list prepared for the Municipality under the West Pakistan Urban Immovable Property Tax Rules, 1958, shall mutatis mutandis be the assessment list for the tax on buildings and lands levied by Municipal Committees unless otherwise directed by the Government. The learned counsel heavily relied upon this rule to show that the Karachi Municipal Corporation had no authority to re- assess the property after its transfer in favour of the respondent. The learned counsel also placed reliance on the case Noor Khan v. Abdullah (1) in support of his contention. In that case a learned Single Judge of this Court having considered the effect of the above rule came to the conclusion That the assessm ent made by Hyderabad Municipality effective from 24-2-1967 was not valid as the relevant time the assessm ent made by the Excise & Taxation Department was binding on the Municipality, which alone could form the basis of the latest assessment of the property. The facts of the ease cited above are quite distinguishable, as admittedly the assessment in that case was carried out by the Hyderabad Municipality in 1967 when West Pakistan Municipal Committee (Building & Land Tax) Rules, 1962, had come into effect and were very much in the field. It is an admitted position that the assessme nt in the case before me was carried on by the Karachi Municipal Corporation on 7-10-1961, when the West Pakistan Municipal Committee (Building & Land Tax) Rules, 1962, had not come into effect. The assessment thus made by K. M. C. Will be saved under subsection (2) of section 4 of Ordinance X of 1960, which reads as under :- "Section 4(2).-Where an enactment stands revealed under subsection (1) any appointment, rule, regulation, or by law made, notifications, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and the Rules, {{FOOT NOTE}}
(1) PLD 1976 Kar. 862 {{FOOT NOTE}} ' be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance."
A perusal of the above provisions will show that in so far as the rules have not been framed under the Ordinance, any assessm ent made under the existing rules, which in so far as were not inconsistent with or contrary to the pro visions of the Ordinance, was to be considered as a valid assessm ent. The learned counsel was unable to point out any inconsistency between the rule under which K. M. C. Had reassessed the property in 1961 and the provision of the Ordinance. In fact it was never contended before me that the rules, under which the Karachi Municipal Corporation had acted to reassess the property, were in any way in conflict or inconsistent with the provisions of the Ordinance. That being so, in my view, the assessment carried on by the Karachi Municipal Corporation on 7-10-1961, was valid and will form the basis of the latest assessment of the property which is the subject-matter of this appeal. It is not disputed that appeal preferred by the appellant the said assessm ent of the K. M. C., was dismissed on 10-9-1970. The learned counsel for the appellant also referred to the case of Muhammad Amin v. Jamshed Ali (1), which was decided by a learned Single Judge of the erstwhile High Court of Pakistan, Lahore Bench (as he then was), in support of his contention that the assessment carried on by the Municipality in 1961 was not a valid assessm ent. The case cited by the learned counsel for the appellant is based upon the rule laid down in the case of the Punjab Association Club v. The Corporation of Lahore etc. (2). The latter case came up for consideration before the Karachi Bench of the then High Court of West Pakistan in the case of Zakaria Noor Muhammad v. Karachi Municipal Corporation Petition No, 285 of 1964.
The learned Judges of the. Division judgment, dealt who decided the above petition. In paragraph 3 of the judgment, dealt with the contention as follows :- "(3) In the third place it was contended that the Ordinance X of 1960 (Municipal Administration Ordinance, 1960) having come into force on llth April, 1960, the Municipal Corporation could not impose the tax under the old rules. It is conceded that no rules had been framed under the Municipal Administration Ordinance, 1960 at the time when the petitioner was taxed. In this connection reliance was placed on PLD 1963 Lah.
380. There is not much force in this contention. It would appear from section 4 of the Ordinance that so long as no rules had been framed under the said Ordinance if any assessment was made under the old rules which was not inconsistent with the provisions of the Ordinance will be valid.
The relevant provision reads as under :- ' Section 4(2).-Where an enactment stands repealed under subsection (1) any appointment, rule, regulation, or by law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and the rules, be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance. It would appear from a perusal of the above provision that so long as no rules had been framed under the Ordinance X of 1960 if any assessment was made under the rules which was not inconsistent with the Ordinance would be quite valid." {{FOOT NOTE}}
(1) PLD 1967 Lab. 856
(2) PLD 1966 Lab. 380 {{FOOT NOTE}} ' Although the decision reported in PLD 1967 Lab. 856 supports the contention of the appellant but I would prefer to follow the view expressed by the Division Bench of the same Court in Petition No, 285 of 1964, which is also binding upon me.
5. The learned counsel's next contention was that the assessment of the Excise & Taxation Department was binding for all intent and purposes as a latest assessment of the property as and from 1-7-1963. The assessm ent of the property as and from 1-7-1963. The assessment made by the Excise and Taxation Department came up for consideration in the case of Tahir A. Khairullah v. Mst.
Zarifunnisa (1) wherein it was held, while repelling the contention of the tenant in that case that the assessm ent made by the Excise & Taxation Department should have been considered as the latest assessm ent of the property, that Excise & Taxation Department does not fall within the definition of Municipality or local authority. The observations of the learned Single Judge at page 186 of the report were to the following effect :- "The fallacy in this argument is that, the latest assessment is required to be either of a municipality or a local body. The Excise and Taxation Department comes into neither category."
' I am in respectful agreement with the observation of the learned Single Judge in that case and I accordingly hold that in the present case the assessment made by the Karachi Municipal Corporation shall be deemed to be the latest assessment of the property. The latest assessment as contemplated under' section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, in my view is that which is made for the first time by the Municipality or the local body after the transfer of the property in favour of the transferee It is an admitted position that in the case before me the first assessm ent after transfer of the property was made by the Karachi Municipal Corporation on 7-10-1961, which was Rs, 75 per month. I accordingly hold that the two Courts below were justified in holding the latest assessment of the property vis-a-vis the rent payable by the appellant in respect thereof was Rs, 75 per month. The learned counsel for the appellant very candidly conceded that on merits the findings of the two Courts below on the issue of default being concurrent are not open to review in this appeal. It was nevertheless argued that there being a bona fide dispute between the parties with regard to the quantum of rent, the two Courts below ought to have exercised the discretion in favour of the appellant. The contention has no substance.
The exercise or non-exercise of the discretion by the two, Courts below can only be interfered with in IInd Appeal if it is shown that the Courts below acted perversely or against the settled principles of law. The learned counsel for the appellant was unable to point out anything in the order, which would have justified interference by me with the order of the two Courts below. It is an admitted position that the application for ejectment was filed on 27-9-1967. Prior to the filing of the ejectment application the rent even at the rate, which the appellant was contending to be the latest assessm ent, was not offered to the respondent from June 1963, to July 1966. The learned counsel for the appellant pointed out that the entire arrears of rent were deposited in Court before the finding of the application and as such there was no deliberate or wilful default on the part of the appellant. A copy of application for deposit of rent made in the Court produced before the Rent Controller in evidence, shows that it was made on 19-7-1966. There is no explanation whatsoever as to why the rent was not tendered by the appellant from June 1963 till the filing of the application for deposit of rents in Court on 19-7-1966 even at the {{FOOT NOTE}}
(1) PLD 1968 Kar. 182 {{FOOT NOTE}} ' rate, which the appellant claimed to be latest assessment of the property. 1 am, therefore, of the view that on merits the default committed by the appellant was wilful and deliberate and there was hardly any occasion for the two Courts below for exercising discretion in favour of the appellant in the circumstances of the case.
6. The last contention of the learned counsel for the appellant was that the application on the ground of personal and bona fide requirement was premature and not maintainable. The contention is that the property was transferred on 14-10-1960 but notice of transfer and demand was sent to the appellant on 16-4-1962 and the application for ejectment on the ground of personal and bona fide requirement was filed in Court on 27-9-1967. The application was admittedly filed within six years of the service of the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. On these premises it was contended by the learned counsel for the appellant that on the day the application for ejectment on the ground of personal and bona fide requirement was presented in Court, the protection period of six years provided under section 30 of the Act had not expired and as such the application was not maintainable on that ground. In reply to this contention, the learned counsel for the respondent, argued that the protection of 6 years provided in proviso (b) to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is lost if the tenant upon service of notice of demand by the transferee failed to tender or pay all the rents due and the future rent within three months of service of such a notice. The argument of the learned counsel for the respondent has substance. Subsection (3) of section 30 of the Act is in the following language :- "(3) Nothing in proviso (b) to subsection (1) shall .Apply to a tenant-
(i) who has not within three months from the date of receipt of a notice of demand sent to him by the transferee by registered post (acknowledgement due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer."
' It is not disputed before me that the rent was paid by the appellant for the first time after service of the notice dated 16-4-1962 on 18-8-1962 when the proceedings by way of distress warrant were initiated against the appellant by the respondent for recovery of the arrears of rent. I am, therefore, of the view that on account of the default committed by the appellant in tendering/paying the rent to respondent within three months of the service of the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the protection provided under sub-clause
(b) of subsection (I) of section 30 of the Act was lost and accordingly the application on the ground of personal and bona fide requirement, though filed within six years was competent in law.
The learned counsel for the appellant, in support of his contention that the application was premature, relied upon the case of Abdul Bashi,. v. Muhammad Rafiq Khan Sherwani (I). The above- cited case has no application to the case before me, as I have already held that the appellant had already lost the protection available to him under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on account of failure to tender/pay rent to respondent within three months of service of notice of demand, on the date the application for ejectment was presented before the Rent Controller on the ground of personal and bona fide requirement. On merits the learned counsel for the appellant fairly conceded {{FOOT NOTE}}
(1) PLD 1974 Kar. 451 {{FOOT NOTE}} ' before me that he could not challenge the findings of the two Courts below as they were concurrent findings of fact.
7. In view of the above discussion, I see no substance in the appeal, which is dismissed with costs but in the circumstances of the case and that the premises occupied by the appellant are a business premises. I allow the appellant for months' time to vacate the premises.