' The facts giving rise to this Constitutional petition are that respondent No, 1, Muhammad Shah, hereinafter referred to as respondent, made an application for eviction of the petitioner.
Muhammad Ibrahim, from certain house which had been transferred to him under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as the said Act. It was alleged by the respondent that the petitioner had not paid rent for the period from February, 1978 at the rate of Rs, 70 per mensem which he (respondent) had demanded on the basis of the latest assessm ent of the local authority. Resisting the application for his eviction, it was pointed out by the petitioner that he had been regularly paying rent to the respondent at the rate of Rs, 60 per mensem. According to him, he was paying rent at the rate of Rs, 60 per mensem at the time of transfer of the house to the respondent and, therefore, he continued paying the rent to him at that rate. In regard to his (respondent's) demand of the rent at the rate of Rs, 70 per mensem it was urged by the petitioner that the said demand was placed by the respondent after repeal of the said Act and, therefore, he (petitioner) was not obliged to comply with the same. The plea raised by the petitioner found favour with the Rent Controller and, therefore, he dismissed the eviction petition holding that the petitioner was not a defaulter. The respondent went in appeal before an Additional District Judge who reversed the finding of the learned Rent Controller. It was held by the learned appellate authority that the respondent was entitled to claim rent on the basis of the latest assessm ent and since the petitioner had failed to pay rent accordingly, he was liable to be evicted.
The appeal was accepted by the learned Additional District Judge and the petitioner's eviction was ordered. Feeling aggrieved by the order of the Additional District Judge, the petitioner invoked the Constitutional jurisdiction of this Court.
2. It is not disputed that the property in question was transferred to the respondent in 1960. At that time the petitioner was paying rent at the rate of Rs, 60 per mensem and he has regularly paid rent to the respondent at the aforsaid rate till this time. The said Act was repealed in 1974. It was after the repeal of the said Act that in March, 1978 the respondent served a notice on the petitioner demanding rent at the rate of Rs, 70 per mensem on the basis of the latest assessment. The petitioner, however, did not pay him rent at the rate of Rs, 70 per mensem and continued paying rent at the rate of Rs, 60 per mensem.
3. Before examining the contentions raised by learned counsel for the parties it will be appropriate to reproduce the provisions of section 30 of the said Act which are required to be interpreted in this case. It reads as follows:- "30. Protection of certain occupants.-(1) Where any person is in possession of any evacuee house, or shop, or has been declared, on or before the twentieth day of December, 1958, by a Custodian to have tenancy rights from a date prior to the fourteenth day of August, 1947 in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then, nothwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be 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 : ' Provided that-
(a) It shall be 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 ; and
(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years, and from the industrial concern, cinema house or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due).
(2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant.
(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 (ackonwledgment due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or
(ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop who, in any urban area within the same town or city, owns a house or shop, as the case may be.
(4) On the expiry of the period mentioned in proviso (b) to subsection (1) or on the contravention of any of the provisions of subsection (3) whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship.
4. It was urged by the learned counsel for the petitioner that with the repeal of the said Act, proviso
(a) to subsection (1) of section 30 thereof had ceased to be operative and, therefore, the respondent could not demand rent on the basis of the latest assessment nor the same was legally payable to him. In this connection, reliance was placed by him on Muhammad Ramzan v. Ch. Bashir Ahmad and Abdul Aziz v. All Muhammad.1 2
5. While replying to the arguments addressed by learned counsel for the petitioner it was not disputed by learned counsel for the respondent that as a result of the repeal of the said Act, proviso (a) to subsection (1) of section 30 is no longer in force. It was, however, contended by them that since the assessm ent on the basis whereof the respondent had claimed rent at the rate of Rs, 70 per mensem was made in 1968 before the repeal of the said Act, the respondent was entitled to claim rent accordingly even after the repeal of the said Act. No authority was cited by them in support of their plea. It was conceded by learned counsel for the respondent that the assessment carried out by any local authority after the repeal of the said Act cannot be made use of by the transferee of an evacuee property for claiming rent on the basis of that assessment.
6. The comments offered by learned counsel for the petitioner on the submissions made by learned counsel for the respondent were that the assessment of 1968 was of no avail to the respondent because he did not make use of it before the repeal of the said Act by serving notice of demand in terms of the said assessment.
7. From the arguments addressed at the Bar two questions arise for determination. They are as follows:-
(1) Whether in the case of a statutory tenancy created by subsection (1) of section 30 of the said Act the tenant became liable to pay rent according to the latest assessment as soon as such assessm ent was carried out or his liability to pay that rent depended on the landlord's serving notice on the tenant demanding rent in terms of such assessment.
(2) If the service of notice was necessary, could the notice be given even after the repeal of the said Act so as to make the tenant liable to pay rent according to the assessment carried out before the repeal of the said Act ?
8. As regards the first question it has been authoritatively held in Nizam Din (Represented by 14 others v. Mst. Nawab Bibi and Malik Abdul Aziz v. West Pakistan Publishing Companythat the tenant is not liable to pay rent according to the latest assessment unless notice demanding such rent is served on him by the landlord. This means that the right of the respondent to recover rent as assessed by the local authority could accrue to him only on the service of the notice and not on the carrying out of assessm ent by the local authority. This disposes of the first question.
9. In regard to the second question it is to be noted that the statutory tenancies were intended to enjoy special character for a limited period. In the case of such tenancies, possession of tenants was protected for a perio of six years if they did not violate any of the provisions of subsection (3 of section 30 of the said Act. At the same time, the landlord was allowe to charge rent as assessed by the Municipality or the local authority. Accordin to subsection (4) of section 30, the special character of a statutory tenancy was to disappear on the running out of the period of six years or on the contravention of any of the provisions of subsection (3) of section 30 and thereafter relationship of landlord and tenant was to be regulated in accordance with ordinary law which, in the instant case, is the Punjab Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance. The consequences of expiry of the statutory period of six years are the same as those of the repeal of the said Act. In taking this view, I am fortified b the following observations made by the Supreme Court in the case of Muhammad Ramzan:-- "(I) That subsection (4) of section 30 which, inter alia, contains an element of permanence would of necessity be read with the first part of section 30 -it is the application of the ordinary laws including the Rent Restriction Law-after the expiry of the temporary phase or the repeal of the law which ever happens to be earlier. The repeal would not nullify the mandate contained in section 30 (4) with regard to the application of ordinary laws (including the Rent Restriction laws) after the repeal."
Now, therefore, there remains no distinction between the statutory tenancies and other tenancies in the matter of applicability of the said Ordinance. This was emphasized by the Supreme Court in3 4 the following word while deciding the case of Muhammad Ramzan:-- "The controversy raised by the learned counsel relates to the second part of section 30 which provided protection to the statutory tenant for a certain period and also prescribed the procedure for the effectuation of that protection. It was made incumbent on the landlord (transferee of the property) to send a notice with regard to the transfer of the property to the statutory tenant within a month of such transfer by Registered Post A. D. ; and it was further provided that "it shall not be lawful for the transferee to eject such person" from the transferee property during the stipulated period except if and when the tenant contravenes the conditions spelled out in subsection (3) of section 30. Subsection (2) of section 30 had provided that the stipulated period in case of non- issuance of notice within a month of the transfer, would count from the date of the receipt of such notice by the tenant. These provisions laid down the procedure for effecting the transition to the stage when the tenant was to enjoy all rights and suffer all liabilities in accordance with the ordinary Rent Restriction Laws, under section 13 (4); which would put him at par with other tenants.
There is no indication in these provisions or intention underlying the same that the Legislature wanted to create two permanent categories of tenants in Pakistan, one enjoying a special protection for all times to come simply because they happened to be tenants in the transferred properties; and the others not to have any such special consideration, because they were tenants of other categories of properties. Had it been so, clear language could have been used in section 30 for creating permanent rights and permanent mechinery in that behalf."
10. In the present state of affairs if any landlord wants. To have more rent than what was legally due to him before the repeal or the said Act he is required to seek enhancement of rent by making an application to the Rent Controller under section 4 of the said Ordinance even though the rent which he desires to charge has been assessed by the local authority. This proposition was conceded by learned counsel for the respondent also qua the assessment carried out by the local authority after the repeal of the said, Act but not in respect of the assessment made before its repeal. As stated earlier, even before the repeal of the said Act, assessment of the local authority did not, by itself, confer a right on the landlord to recover rent on the basis thereof and he was required to issue notice demanding such rent to make the tenant liable to pay such rent. If any assessment carried out before the repeal of the said Act was intended to be made use of by the landlord in terms of proviso (a) of subsection (1) of section 30 of the said Act he ought to have pressed it into service before the repeal of the said Act by giving the requisite notice but if he did not do so in good time he has, to put it in plain language, missed the bus. Service of any such notice after the repeal of the said Act is an exercise in futility because the provisions of law which contemplated its service are, admittedly, no longer in force. I, therefore, hold that notice demanding rent in terms of any assessm ent carried out before the repeal of the said Act would not make the tenant liable to pay that rent if the notice was served after its repeal. Similar opinion was expressed in the case of Abdul Aziz. In that case the statutory period of six years specified in section 30 of the said Act had expired when notice of demand was served but in the instant case notice was served after the repeal of the said Act. As stated earlier, the situation arising out of either of these developments is the same. Relevant observations made in the case of Abdul Aziz are to the following effect:- "Learned counsel for the appellant has argued that it is immaterial that latest assessment was made in 1971 when the period of 6 years had not yet expired and that since at the time the notice was served upon the appellant under section 30 to recover enhanced rent the period of 6 years had expired, section 30 had become inapplicable and thus no notice could be served. I find force in this argument. Learned counsel for the respondent has not been able to cite any authority in support of the contention that since the latest assessment was made before the expiry of 6 years, the respondent was entitled to claim enhanced rent. The enhanced rent according to the latest assessm ent could be claimed under section 30 if the said section was applicable. If the respondent had claimed rent according to latest assessment of 1971 serving a notice under section 30 before the expiry of 6 years, of course, he would have been entitled to receive rent at that rate till the time the tenancy came to end or the Rent Controller had fixed fair rent under section 4 of the Rent Restriction Ordinance. On the date on which notice claiming enhanced rent according to the latest assessm ent was served, section 30 was no longer applicable as the period of 6 years had elapsed, therefore, the said provision of law was not available. The respondent could have made an application for the fixation of fair rent under section 4 of the Rent Restriction Ordinance if it could benefit him but could not take benefit of section 30 after it bad become inapplicabbe. Needless to say that only section 30 of the Displaced Persons (Com. & Reh.) Act provides that rent according to the latest assessm ent can be claimed and there is no other provision in that behalf and since the said section had become inapplicable there was no legal provision warranting the demand of the respondent."
' This disposes of the second question formulated above.
11. Since notice demanding rent at the rate of Rs, 70 per mensern as assessed by the..Local authority in 1968 before the repeal of the said Act, was served by the respondent not before the repeal of the said Act but thereafter he has no right to demand that rent on the strength of proviso
(a) to sub-section (1) of section 30 of the said Act. It is not disputed that at the time of creation of statutory tenancy between the petitioner and the respondent, the rent payable for the disputed premises was Rs, 60 per mensem and no default has been alleged with regard to the payment of rent at that rate. The respondent had pleaded default on the ground that he was paid rent at the rate of Rs, 60 and not at the rate of Rs, 70 and since the petitioner was not liable to pay rent at the rate of Rs, 70 per mensem, his (respondent's) plea of default has no merit.
12. In this view of the matter, I reverse the finding of default recorded by the learned appellate authority and restore the finding of the learned trial Court to the effect that the petitioner is not a defaulter. Since the learned Additional District Judge ordered the eviction of the petitioner on the group G of default his order is not sustainable. I, therefore, accept this writ petition, set aside the order of the learned appellate authority and restore that of the learned Rent Controller by which the ejectment application filed by the respondent was dismissed. There shall be no order as to costs. PLD 1981 SC 340 NLR 1979 Civil Lab. 321 PLD 1970 Lab. 923 PLD 1965 (W. P.) Lah, 82