1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to a statutory tenant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act), to examine whether the transferee landlord of the property, in this case a shop, is entitled to claim rent on. The basis of the latest assessment carried out by the municipality or the local authority from the date of service of notice of demand on the tenant or from the date of transfer not exceeding the period beyond three years before service of such a notice. The Lahore High Court has by its judgment, dated 14th of May, 1985, interpreted section 30 of the Act to mean the latter.
2. A building Bearing Property No. 34 Ward No. 3, Katchery Bazar centrally located in Faisalabad was transferred to respondent No. 1 under the Act. It had a shop and a residential portion. The shop was in occupation of the appellant since before its transfer who had contested the transfer of the property to the respondent. The resi--dential portion was in occupation of the respondent himself.
3. The Provisional Transfer Order of the property was issued in favour of the respon--dent on 20th of November, 1968. He also obtained Permanent Transfer Deed for it. Admittedly, the rent of the property before its transfer to the respondent was rupees 48 per month. It was on the 15th of May, 1972, that the respondent served a notice on the appellant informing him of the transfer of the property to him and demanding rent for the past three years and future rent at the rate of Rs. 350 per month as per assessm ent of the property by the 7xcise and Taxation Department. The appellant replied to it challenging transfer and also the rate of rent and himself worked out the monthly rent at Rs. 177 and sent under protest a crossed cheque of Rs. 7,080 towards the arrears of rent from 1-5-1969 to 31-8-1972. Another notice was thereafter served by the respondent informing him that the latest assessm ent as from 1-7-1972 was at the rate of Rs. 900 and he claimed rent at that rate from then onwards. On 23rd of December, 1972, the respondent No. 1 instituted an application seeking the eviction of the appellant from the property on the ground of default in the payment of rent after service of the notice of demand. It was contested by the appellant. The following issues were framed :- "(1) Whether the petitioner has demanded legal rent under section 30 of the Act XXVIII of 1958? O. P.
4. A.
(2) If Issue No. 1 is not proved what is the rate of rent? O. P. P.
(3) Whether the respondent has committed default in the payment of rent? O. P. A.
(4) Relief."
5. The Rent Controller after recording evidence on the issues held that "the petitioner has failed to comply with the provisions of law so far as demand of rent on the basis of latest assessment carried out by the Municipality or the Local Authority is concerned. Hence in my view, the demand being illegal and contrary to law cannot be acted upon by the respondent through the Rent Controller as the Courts are bound to apply the law its letter and spirit in which it is enacted by the Legislature".
6. On the next issue the learned Rent Controller held that the assess--ment of the Municipality showed that the rout of the property was Rs. 450 per month, The appellant was adjudged to be not a defaulter and the ejectment application was dismissed Nevertheless, the appellant was directed to pay future rent at the rate of Rs. 450 per month, and also to pay the arrears of rent with effect from 1-5-1969 at that rate.
7. Aggrieved, the landlord filed an appeal before the District Judge. The learned District Judge reversed the finding of the Rent Controller on all the material issues. He held that the assessment made by the Excise and Taxation Department is deemed to be assessment by the Municipality for the purposes of section 30 of the Act and reliance was placed for this on a decision in the case of Noor Khan v. Abdullah (PLD 1976 Kar, 862The notice demanding rent at the rate of Rs. 350 was held to be in accordance with the law and in not making payment in accordance therewith the appellant was held to be in default. He was ordered to be evicted after a period of four months.
8. The tenant at first filed a second appeal in the High Court but the same abated on the promulgation of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1979, (Ordinance IX of 1979), and an order of abatement was passed by the learned Judge on 21-7-1980. A civil revision petition was thereafter filed by the appellant in the High Court but the same was withdrawn on 4- 10-1980 as doubts were expressed about its competence. Finally, a, Constitutional Petition was filed in the High Court. The only question of law which is still in controversy between the parties was whether the demand made by a notice under section 30 of the Act enhancing the rent is to have prospective effect from the date of notice or it can go back or operate retrospectively from the date of entitlement of the landlord to charge rent of the premises. Reading the amended provision of section 30 of the Act along with the decision in the case of Sh. Fazal Elahi v. Muhammad Saddiq (PLD 1980 Lah. 489), the learned Judge held that there was a direction in the amended law "that the Assessing Authority while carrying out the latest assessment of a particular property should also keep in view the rental value of the other properties situated in the locality and if a landlord or a tenant, as the case may be, feels aggrieved against such assessment, then he can pursue the remedy as provided by West Pakistan Urban Immovable Property Tax Act, 1958, or the Municipal Act, as the case may be. This amendment does not authorise a Rent Controller to go behind an order passed by an Assessing Authority." The other decisions of the High Court, in which it was held that such a notice demanding enhanced rent had the prospective effect from the date of notice, were all distinguished on the ground that in those cases two such notices were served and the effect of the second notice was being determined. Not a single case was brought to the notice of the learned Judge where a transferee landlord by notice under section 30 of the Act for first time demanded enhanced rent on the basis of the latest assessment from the date of transfer or the any period preceding the date of notice and the tenant was held not liable to pay such rent for the period preceding the notice. On this view of the law taken it was found that the demand for arrears at the rate of Rs. 350 was proper and legal and that the appellant was clearly in default in not complying with it fully. The constitutional petition was dismissed with costs.
9. Mr. Munir A. Shaikh, Advocate, the learned counsel for the appellant, has taken us through the various decisions of the High Court to point out that consistently the view has been that rent is chargeable at the enhanced rate from the date of notice and not from an earlier date and this also follows from the express language of the law. Section 30 of the Act is so worded that with the transfer immediately and contempora--neously a statutory relationship of landlord and tenant comes into existence and it is on the same terms and conditions as to payment of rent or otherwise on which the occupant held it immediately before the transfer. This relationship having come into existence a right is conferred on the transferee landlord to charge rent on the basis of the latest assessm ent carried out by the Municipality or a Local Authority as the case may be for other properties in the locality generally. This clearly indicates that the statutory relationship which has come into existence is subject to the exercise of this option or right by the landlord and it is when he exercises this right that the relationship of the landlord and tenant as to payment of rent gets altered. In exercising this option, it has also been made clear by the amendment of the law that it is not to be solely based on the assessment of the property of which rent is sought but mainly it has to be estimated on the basis of latest assessment for other properties in the locality generally. Such a right and its exercise cannot but be prospective as from the date that right is exercised. It cannot be taken back either to a date of the transfer of the property or to any other date prior to the exercise of the option itself. Retrospectivity, according to the learned counsel, is not to be lightly assumed. It must follow either on the express language or by necessary implication and if statute itself does not give any such indication the landlord transferee cannot claim it.
10. Mr. Zakiuddin Paul, Advocate, the learned counsel for the respondent contended that the latest assessm ent of the Excise and Taxation Department itself had in fixing annual rent of the property taken into consideration the assessment of other properties in the locality generally. This was borne out by the orders passed by the Assessing Authority. The appellant had at one time participated in the proceedings leading to such assessment. In view of it, it cannot be said that the requirement of the law in any manner remained unsatisfied.
11. The relevant provision of the law (section 30 of the Act) before its amendment was in the following words :- "30. Protection of certain occupants.-(1) Where any local or displaced person is in possession of any evacuee house or shop which is transferred to any other person under the provisions of this Act then, notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in that house or shop, 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 the house or shop immediately before the transfer: Provided that--
(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment of the municipality or local authority, as the case may be, and
(b) .
(2) .
(3) .
(ii) .
(4) , In 1963 by Ordinance No. XIX of 1963 this provision was amended to read as follows:- "30.-(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, not with-- standing 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."
12. If even after such an amendment, one were to lend fixity and immutability to the assessment of the disputed property, ignoring other factors indicated in the amending provision, one would be clearly ignoring the law, defeating the very purpose and object of the amendment, and imputing redundancy' to the legislature. Where the parties are not at variance the assessment of that very property may form the basis but if there is a contest over it then certainly the test is provided in the amending provision itself.
13. The view of the High Court that the amending provision was intended to cast a duty on the Local Authority or a Municipality and none on the Rent Controller appears to be against the language and scheme of the Act. Section 5 of the West Pakistan Urban Immovable Property Tax Act, 1958 lays down the yardstick for ascertainment of Annual value of a property. So, does section 61 read with section 3(1) of the Punjab Municipal Act, 1911. The assessing Authorities under these Acts have a charter of their own and they cannot look to other laws not addressed to them for discharging their duties under their respective laws. What section 30(1)(a) after its amendment provides is that the transferee shall himself first quantify the rent and make a demand of it "on the basis of the latest assessm ent carried out by the Municipality or Local Authority, as the case may be, for other properties in the locality generally". If there is a dispute over it then its resolution will be the duty or responsibility of the forum where the dispute is brought, ordinarily Rent Controller, urban or of cantonment. anti evil Court for properties located neither in urban nor cantonment areas, yet governed by section 30. In the case of Ahmed Din v. Muhammad Munir (1975 SCMR 74relied upon by the High Court the dispute had an altogether different dimension. In that case section 9 of the Rent Restriction Ordinance was invoked to curtail or limit the operation of section 30(1)(a) and what was held was that section 30(1)(a) is self--contained, and not controlled by section 9 of the Rent Restriction Ordi--nance. To hold on its basis that Rent Controller lacks the jurisdiction to implement or adjudicate in accordance with the provisions of sec--tion 30(1)(a) of the Act would not be justified.
14. It is correct that assessm ents made by the Assessing Authorities under these two acts cannot be interfered with but the duty cast under section 30(1)(a) is to adopt such assessm ents for other properties in the locality generally as relevant and proper material for arriving at the assessment of the disputed property, independently of its assessment made by any authority. That is the mandate of section 30(1)(a) after its amendment.
15. The right of the transferee and the manner of its exercise was indicated in the following words in Abdul Aziz v. West Pakistan Publishing Co. (Private) Ltd. (PLD 1965 Lab. 82 "He is liable to pay the rent which he was paying before the transfer. A right, however, is created in the transferee to charge the rent based on the latest assessment carried out by the municipality.
16. Unless he exercises his right, there is no corresponding obligation imposed on the tenant to pay that amount. The transferee, under the circumstances, must indicate his intention to do so before he can enforce his claim and complain of a default in the context of the proviso, which reads 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 to the locality generally ; It clearly implies that the transferee must find out as to what that assessment is and then base his claim on that. Since the right is vested in him, it is for him to be definite about the same and he cannot just call upon the tenant to make payment according to the latest assessment without specifying the amount. He cannot put a tenant on an enquiry in this behalf. Doubtless, it is an incidence of tenancy to pay the rent, but it can hardly be spelt out of the provisions of Act XXVIII of 1958 that there is any obligation on the part of the tenant also to know as to what rent the landlord intends to charge. A failure on the part of the tenant to ascertain the rent according to the latest assessm ent of the Municipal Committee and to pay the same to the transferee cannot make him a defaulter so as to attract the provisions of clause (4) of section 30 which says that on the contravention of any of the provisions of subsection (3), 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."
17. The case of Nizam Din (PLD 1970 Lah. 923) was indeed of second notice of demand but the principle of law enunciated therein was as follows :- "In my opinion, therefore, there is no canon of law under which the liability on the part of the tenant to pay the rent can be increased retrospectively at the enhanced rate even with respect to the period for which the rent has already fallen due and the liability incurred. This increase, in the rate of rent could be made prospectively by a notice, on the basis of the latest assessment. This being the case, the appellant was liable to pay the rent to the respondent at the old rate of Rs. 4-50 p. m.
18. Up to the date of the notice, and there--after, in pursuance to the notice at the enhanced rate Rs, 100 p. m. On the basis of the latest assessment. In this connection allegedly the respondent has served the appellant with two successive notices dated 1-8-1961 and 31-1-1967. But I find that the notice dated 1-8-1961 is not on the record and at this stage I cannot pronounce upon its validity for the purposes of this order. In the second notice dated 3-1-1967 served on the tenant the landlord demanded the arrears and the future rent at Rs. 100 p. m. On the basis of the latest assessment for the premises. But as discussed by me above her demand for the payment of the arrears retrospectively at the enhanced rate was not tenable."
19. In the case of Muhammad Ismail (PLD 1976 Lah. 150prospective effect was given to notice demanding enhanced rent. The observations made were as follows :- "The above discussion, would show that the respondent is obliged to pay rent at the rate of Rs. 20 per mensem w. a f. 2nd of December, 1963, when the notice in this regard was issued to him, and the appellant is not entitled to receive the rent at the enhanced rate for the period prior to that."
20. In the case of Khuda Eakhsh 1979 CLC 279) the controversy arose and was dealt with as hereunder :- "The respondent's predecessor-in-interest demanded rent at the rate of Rs. 75 p. m. On the basis of the assessm ent made by the Municipality concerned. Learned counsel for the appellant did not dispute the fact that the property in dispute had been assessed as aforesaid but contended that the respondents' predecessor-in-interest could demand rent at the aforesaid rate for the period following the service of the notice under section 30 of the said Act and not for the period preceding its service. The old rate of rent was Rs. 15 p. m. Which according to him. Was deposited by the appellant all through. While dealing with this plea, learned counsel for the respondents conceded that the respondents could not demand rent at the rate of Rs. 75 p. m. For the period preceding the service of notice but urged that since the appellant did not- pay or tender rent at the rate of Rs. 75 p. m. Even after the service of notice he could not escape the finding of default."
21. The scheme of section 30 is to create by the use of a deeming clause a relationship of landlord and tenant between the transferee and the person in "possession" of the property. Again, on the strength of the same deeming clause, this relationship is "on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer". Such a relationship gives rise to mutual rights and obligations. By way of a proviso it has been made "lawful for the transferee to charge the 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 C the locality generally". This right of the landlord imposes a corresponding obligation on the tenant. Once a lawful notice is served, it supplants or substitutes the rate of rent fixed under the deeming clause, and thereby increases the burden of the tenant. The landlord has been given the freedom to make such a demand the moment he becomes the transferee of the property. There could, therefore, be no point or purpose in conferring on him a power to raise such a demand retrospectively from a date antecedent to the notice of demand itself. He can by making such a demand get altered the rate of rent which had not on the date of demand already become due and payable. The rent that had already become due and payable at a certain rate remains beyond his pale. There appears no intention in the law to either cater for or to reward the lethargy or the failure of the landlord to promptly exercise the right conferred on him by law. And that is how it should be.
22. From the above discussion it is clear that in this case the demand of rent at the enhanced rent would be operative from May, 1972 and previous to it the tenant had already incurred the liability of paying rent at the rate of Rs. 48 per month. On this finding the rent tendered by him was in excess of the amount payable by him. Lie was not in default and his ejectment could not be ordered on the ground of default. This appeal is, therefore, allowed. The judgment of the High Court is set aside and the order of ejectment passed by the District Judge, as the appellate authority, is declared to be without lawful authority and of no legal effect. The result will be that the order of the Rent Controller rejecting the application for ejectment of the appellant is restored but on altogether different grounds with the modification in the liability to pay arrears and future rent at rates indicated above. No order as to costs.