' ZAFFAR HUSSAIN MIRZA, J.-This is a certificated Letters Patent Appeal arising out of the judgment dated 19-3-1968 by a learned Single Judge of this Court whereby he allowed the appeal of the respondent herein.
2. Briefly the facts of the case are that the appellant was in occupation of tenements Nos. G/14 and 9 of a building bearing No, N. P. 8/4, Juna Market, Karachi which was transferred to the respondent under a P. T.
0. Dated 17-5-1961. By a notice dated 16-8-1961 under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act), the respondent informed the appellant about the transfer in his favour and demanded rent according to the latest assessm ent made by the Karachi Municipal Corporation at the rate of Rs, 50 per month from the date of transfer. It seems the appellant paid the rent at the aforesaid rate. However, on account of additional accommodation being added to the premises on the roof, the K. M. C. Assessment was raised vide Exh. P/6 dated 21-8-1962 whereby the assessment was enhanced to Rs, 85 per month from 10-7-1962. Thereupon the respondent by his notice dated 10-9-1962 demanded the payment of rent at the enhanced rate with effect from 10-7-1962. The respondent then filed ejectment application on 12-6-1963 on the ground that the appellant had committed default in payment of rent for the period commencing with 17-7-1962 to 31-5-1963. It is not disputed that the appellant committed default in the payment of rent for the aforesaid period. However, his case was that he has been in occupation of the premises since 1935 and had been paying Rs, 23 per month as rent to the evacuee owner, which could only be raised by 33 %. He further contended that he was prepared to pay all the arrears of rent at the aforesaid rate, but the respondent had refused to accept the same. He admitted that he had paid the rent at the rate of Rs, 50 per month but under protest up to July 1962 ; thereafter he stopped further payment when enhanced rent was demanded in the hope that better counsel would prevail on the respondent. He also challenged the validity of the K. M. C. Assessm ent and stated that he had filed an appeal against the same.
During the evidence before the learned Rent Controller it was revealed that the Excise and Taxation Department had fixed the rent of the premises at the rate of Rs, 85 per month (Exh. P/11), but in the appeal filed by the appellant the K. M. C. Reduced the assessment to Rs, 72 from Rs, 85 earlier fixed.
The appellant relied upon the assessment order by the Excise and Taxation Department dated 14- 10-1963 assessing the rent at the rate of Rs, 36 per month (Exh. D/4) and also on a subsequent order dated 7-8-1964 by the same Department reducing the assessment to Rs, 31 per month (Exh.
D/5). The learned Rent Controller reached the finding that the appellant had failed to tender the rent with effect from 17-7-1962 even at the rate of Rs, 50 per month and consequently ordered his eviction by his order dated 19-10-1964. On appeal the learned Additional District Judge, Karachi took the view that due to changing assessment rates under the various orders passed by the K. M.
C., the appellant was unable to tender rent at the relevant rate. He, therefore, permitted the appellant to deposit the balance of rent at the rate of Rs, 22 per month for the entire period of arrears failing which he was directed to be evicted immediately. This order was challenged by the respondent in second appeal before the learned Single Judge under section 15(4) of the Rent Restriction Ordinance, 1959, who disagreed with the Additional District Judge and held that the appellant committed default in the payment of rent without any sufficient ground and took the view that it was his duty to tender rent at the rate of Rs, 50 either by money order or by depositing with the Rent Controller. He, therefore, allowed the appeal and set aside the order of the Additional District Judge and restored the order of the Rent Controller.
3. The only question raised before us is as to what in the circumstances of the present case is the "latest assessm ent" in terms of section 30 of the Act which the respondent could lawfully charge as rent. It will be recalled that the default has been alleged for the period between 17-7-1962 to 31-5- 1963. The respondent's case is that the appellant was liable to pay at the rate of Rs, 50 from the date of transfer viz. 17-5-1961 upto 10-5-1962 and subsequently with effect from 17-7-1962 he was liable to pay at the enhanced rate of Rs, 85 fixed by the K. M. C. Having regard to the aforesaid period of default the two relevant assessments are Rs, 50 and Rs, 85 both fixed by the K. M. C. It was contended by Mr. Z. U. Ahmad that the Karachi Municipal Corporation had no power to assess the property during the relevant period and therefore both orders of assessment were ineffective in law, with the result that the appellant was legally liable to pay rent at the rate of Rs,
23. Thus if the amount paid over and above the lawful rate is adjusted, the appellant was not in default.
4. Now the City of Karachi Municipal Act, 1933 was repealed and replaced by the Municipal Administration Ordinance, 1960, so far as Karachi is concerned, with effect from 16-4-1960. Under the latter Ordinance the Government of West Pakistan made and promulgated the W. P. Municipal Committees (Building and Land Tax) Rules, 1962 on 28th June, 1962. Rule 2 of these Rules provides as under : "2. Where a tax is levied in a Municipality under the West Pakistan Urban Immovable Property Tax Act, 1958 and the Municipal Committee for such Municipality has already levied or levies a tax on the annual value of buildings and lands under the Municipal Administration Ordinance, 1960 (hereinafter referred to in these Rules as buildings and lands tax) the tax on buildings and lands shall be assessed and recovered in the manner as provided hereinafter-
(a) unless otherwise directed by Government either generally or in any specified case, the assessm ent 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 the Municipal Committee: ' Provided that if a person owns more than one building or piece of land in a Municipality, the aggregate annual value of all such buildings and lands owned by him in a Municipality shall be the annual value for determining his liability to or exemption from the buildings and lands tax.
(b) Unless otherwise directed by Government, the provisions of West Pakistan Urban Immovable Property Tax Act, 1958, and the Rules thereunder, as in force for the time being, shall apply mutatis mutandis as regards liability to buildings and lands tax, the authority competent to assess it, and the Officials subordinate to it, the procedure for objections or petitions, appeals and revisions, the time and instalments for payments of tax, the manner of the unpaid tax, the penalty for default in its payment, the duties of owners of property to report transfers, demolitions, destructions or additions to a building or land, and for other matters, incidental to and necessary for the assessm ent and collection of the tax.
(c) The forms, registers and notices prescribed under the West Pakistan Urban Immovable Property Tax Act and the Rules thereunder in force for the time being may be utilized for the assessment of the buildings and lands tax.
(d) unless otherwise directed by Government the building and lands tax shall be assessed and collected by Municipal Committee or on its behalf by an Officer or Servant of the Municipal Committee.
5. It was contended by Mr. Z. U. Ahmed that upon repeal of the City of Karachi Municipal Act, 1933 and until the coming into force of the W. P. Municipal Committees (Building and Land Tax) Rules, 1962 the K. M. C. Had no authority in law to alter the assessment or to assess afresh the tax on the annual value of building as no legal machinery existed during the interegrum for levy and collection of such tax. Now according to section 30 of the Displaced Persons Act, it is lawful for the transferee to charge a rent on the basis of the "latest assessment carried out by the Municipality or Local Authority, as the case may be, for other properties in the locality generally". Otherwise the person in possession of the evacuee house transferred under the Settlement Law becomes 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. The question, therefore, is whether the assessments relied upon by the respondent for charging rent of the premises in dispute were valid and effective in law. Reliance was placed by the learned counsel on the two judgments of the Lahore High Court reported as Punjab Association Club v. Corporation of Lahore (1) and Muhammad Amin v. Jamshed Ali (2). In the first mentioned case the re-assessment of the premises in dispute situated within the limits of the Lahore Corporation was challenged. The High Court declared the impugned re- assessm ent made by the Corporation of Lahore as without lawful authority and of no legal effect on the following reasoning : "Subsection (1) of section 41 of the Municipal Administration Ordinance provides that all taxes, rates, tolls, fees and other charges levied by the Municipal Committee shall be imposed, assessed, leased, compounded, administered and regulated in such manner as may be provided by Rules.
The position, therefore, is that from the 1st of May, 1960 no Officer of the respondent Corporation had the power to reassess the property in dispute. It is true that section 4(2) of the Ordinance provides that where an enactment stands repealed under subsection (1), any tax imposed or assessed under such enactment shall, so far as it is not inconsistent with the provisions of the Ordinance and the Rules, be deemed to have been imposed or assessed under the Ordinance, but this merely means that the old assessment of Rs, 2,268 was to continue till legally altered, and cannot be construed as investing the Officers of the respondent Corporation with a power to carry out a fresh assessm ent. In fact until the Rules were framed, no fresh assessment could have been carried out."
' In the second case the view held in the case of Punjab Association Club was followed. Mr. M. M. K.
A. Zai, learned counsel appearing on behalf of the respondent, however, contended that the two cases cited by the learned counsel for the appellant are distinguishable inasmuch as the position of law obtaining with reference to the Karachi area is different from that which obtained in the case of Lahore Corporation. He argued that notwithstanding the repeal of the City of Karachi Municipal Act the Rules framed thereunder were saved by the saving provisions contained in section 4(2) of the Municipal Administration Ordinance. Chapter II of Schedule VIII provides for the procedure for the preparation of the assessm ent list and incidental matters relating to hearing of objections and authentication of assessm ent list, etc. Rule 7 confers the power to amend the assessment list on the {{FOOT NOTE}}
(1) PLD 1963 Lah. 380 (2) PLD 1967 Lah. 856 {{FOOT NOTE}} ' Chief Officer. The machinery for the assessment and reassessment was provided for in the aforesaid rules contained in the Schedule. Section 281 of the City of Karachi Municipal Act, 1933 lays down that the Schedules to the Act as amended from, time to time shall be deemed to be the part of the said. Act and section 282 confers power on the Corporation to add to certain Schedules including Schedule VIII, rules not inconsistent with the provisions of the said Act with the prior sanction of the Provincial Government. Although the aforesaid Rules are contained in a Schedule attached to the main Act section 5(43) of the said Act defines "rules" to include rules and forms contained in the Schedules annexed to the Act. Clearly, therefore, the Rules referred to above contained in Chapter II of Schedule VIII had the force of rules under the 1933 Act. By virtue of section 4(2) of the Municipal Administration Ordinance, therefore, the said Rules continued in force until the new Rules were framed in 1962. It was not urged on behalf of the appellant that these Rules were in any way inconsistent with the provisions of the new Ordinance or any existing Rules. The result is that the old Rules will have to be deemed to be Rules made under the new Ordinance. As will be observed from the provisions of rule 2 of the newly-promulgated W. P. Municipal Committee (Building and Land Tax) Rules, 1962, as from 1-7-1962 the competent authority to re-assess the tax on buildings was the Excise and Taxation Department. Consequently, until that day by virtue of the saving clause as stated above under the old Rules the K. M. C. Was competent to alter the' assessm ent. In the two Lahore cases the question for consideration was only whether by virtue of the saving provisions continuing in force the existing property tax would by, itself invest the Corporation with power to alter or amend the assessment of the tax. But in the present case the respondent relies upon the old Rules saved and continued in force under the said provisions which empower the authorities of the Corporation to exercise powers of assessment and reassessment.
Our attention was also drawn to a Notification issued by the Government under subsection (1) of section 128 of the Municipal Administration Ordinance empowering the persons performing the functions of the Municipal Bodies constituted under the repealed enactments, to continue to perform such functions, until properly constituted Municipal Committees for the respective areas where such local bodies had jurisdiction assume office in accordance with the provisions of the said Ordinance. In Karachi Municipal Corporation and Statutory Body v. Aduljee Dinshaw Ltd. (1) a D.
B. Of this Court considered the effect of the repeal of the City of Karachi Municipal Act, 1933 on the power of the K. M. C. To reassess the existing taxes in absence of the Rules and also considered the view taken in the Punjab Assocation Club case. It was observed :-- "With respect, we find ourselves in disagreement with this view. In or opinion a distinction should be made between levy of a new tax and increase in, or re-assessment of, an existing Municipal tax. In the case before us, there was no levy of any new Municipal tax on the said property. There was only re-assessm ent of the letting value of this property and the taxes leviable thereon, and, therefore, sections 33 and 41 would in or humble view, have no application to the controversy before us.
Further, even levy of tax is permissible under the old Municipal Rules if new Rule require to be promulgated {{FOOT NOTE}}
(1) PLD 1974 Kar. 323 {{FOOT NOTE}} ' under the Municipal Administration Ordinance have not been framed, as power for this purpose is saved by reason of the provisions of section 4(2) of this Ordinance, provided such tax is not inconsistent with the provisions of the Ordinance itself."
' We, therefore, find no force in the contention that the K. M. C. Had no power to re-assess the property. However, as already pointed out, with effect from 1-7-1962 the competent authority under the new Rules was the Excise and Taxation Department and not the K. M. C. Therefore, the first re- assessm ent at Rs, 50 made on 16-8-1961 was valid, but the subsequent enhancement made by the K. M. C. On 21-8-1962 raising the rate to Rs, 85 would not be valid in law. Subsequently, however, it seems the Excise and Taxation Department has re-assessed the property, but for the present purposes those re-assessm ents are not relevant. The effect of the aforesaid is that the respondent was competent to charge rent at the rate of Rs, 50 per month for the period in question. Since the appellant failed to tender rent according to this rate in spite of notice, he was clearly in default and was, therefore, liable to be ejected.
6. No other argument was raised on behalf of the appellant.
7. For the foregoing reasons, this appeal fails and is dismissed accordingly, but the parties are left to bear their own costs. The appellant shall have for months time to hand over possession to the respondent.