' The dispute is in respect of residential premises bearing No, 12/16, Flat No, 2/2, Aratobagh Quarters, Karachi. This premises was transferred to the predecessor-in-interest of the respondents Nos. 1 to 7 who gave a notice under section 30 of the Displaced Persons (Compensation and Kehabiitation)
Act of 1958 to the predecessor-in-interest of the appellants who was then residing in the premises in question. This notice was sent on 23rd December, 1965 i,e, to say about Si years after the transfer of the property. Dotingthis period the property was assessed to rent by the Excise & Taxation Department at Rs, 120 per annum. The notice received by the predecessor-in-interest of the appellants was replied on 4th February, 1966. A money-order was also sent for the amount of rental Cues from 3Cth June, 1960 todate. The rent was received by the predecessor-in-interest of respondents Nos. 1 to 7 but she demanded rent at the rate of Rs, 30 per month which was claimed to be the rent assessed by the Municipal Corporation on 5th June, 19M for the year 1960.61.
Thereafter another letter was sent by the predecessor-in-interest of the appellants asserting that the rent was assessed at Rs, 10 per month and therefore it could not be claimed at the rate of Rs, 30 per month. This letter was also replied by the predecessor- in-interest of the respondents Nos. 1 to These letters are not of much Importance except that in these letters the controversy as to the rate of rent between the parties was discussed. The predecessor-in-interest of the respondents Nos. 1 to 7 had been asserting that the rent was Rs, 30 per month as assessed by the Municipal Corporation and the other side kept on saying that the correct rent was Rs, 10 per month which was assessed by the Excise & Taxation Department.
2. After the transfer of the property the predecessor-in-interest of the respondents Nos. 1 to 7 had also filed distress warrant proceedings against the predecessor-in-interest of the appellants in which rent was demanded at the rate of Rs, 30 per month. According to the order of Small Causes Court in these proceedings rent was allowed to be deposited at the rate of Rs, 11 per month as the claim of the appellant's predecessor in-interest was that they had been paying the rent to the previous landlord at the rate of Rs, 11 per month. However, for the balance of Rs, 19 per month security was obtained (rem the appellants' predecessors in-interest.
3. On 30th May, 1967, the Repro-dents' predecessor-in-interest filed an ejectment application against the appellants' predecessor-in-interest on the ground of default in payment of rent, the tentative rent fixed by the Rent Controller was Rs, 18 per month. This application was oontested mainly on the ground that the assessment of the rent carried outy the Municipal Corporation was not valid and that the assessm ent made by the Excise & Taxation Department was the correct assessm ent. The learned :tent Controller struck following issues
(a) Whether the tenant committed default in payment of rent?
(b) What is the rate of rent?
' The learned Rent Controller after recording the evidence of the parties reached the conclusion that the assessm ent made by the Municipal Corporation on 5th June, 1961, declaring the rate of rent at Rs, 30 per month was correct assessment and a default had been committed by the predecessor-in-interest of the appellants. Against this order an appeal was preferred but the same was also dismissed on 29th March, 1971. It is against the order of the Rent Controller dated 11th July, 1970 and the order dated 29th March, 1971 passed by the II Additional District Judge, Karachi that this second appeal has been filed.
4. The learned counsel for the appellants has mainly argued that the assessment made by the Municipal Corporation on 5th June, 1961 was invalid assessment. Explaining too legal poshi an, he stated that Municipal Administration Ordinance of 1960 came into force on 16th April, 1960 and section 4 of this Ordinance repealed the earlier Act namely Municipal Corporation Act of 1933.
However, it saved the rules made under the previous laws. Section 4 or the said Ordinance saved the assessm ent made under earlier laws provided they were not inconsistent with the provisions of the Ordinance and the rules made thereunder. Section 41 of the Ordinance provided for the making of the rules and these Rules were made on 28th June, 1962. According to the learned counsel for the appellants no authority could assess the rent during the period from 11th April 1960, on which date the said Ordinance came into force and 28th June, 1962 the date on which the Rules were made. Thus his ease is that the assessment made by the Municipal Corporation on 5th June, 1961 was incorrect assessm ent. He has further argued that the Municipal Committees Imposition of Taxes Rules which were promulgated on 30th December, 1960 and made applicable to Karachi on 78th July, 1961 provided that notice to the public will be given in respect of taxation proposals which would #TBS (I) PLD 1963 Lah. 380 (2) PLD 1974 Kar. 328 #TBE ' specify the system of assessm ent to be adopted and objections shall be invited from the inhabitants. Since no such notice was even before the fixation of rent at Rs, 30 per month, therefore on this score as well the assessm ent made by the Municipal Corporation was incorrect. To substantiate his argument he has placed reliance upon the Association Club v. Corporation of Lahore (1). In this case it was held as under :- "Subsection (1) of section 41 of the Ordinance provides that all taxes, rates, tolls, fees and other charges levied by is Municipal Committee shall be imposed, assessed, leased, compounded, administered and contemplated in such a manner as may be provided by Rules. The position therefore is that from the I st May, 1960 no officer of the respondent-Corporation had the power to re-assess the property in dispute. It is true that subsection (2) of the Ordinance provides that where an enactment stenos 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 assessm ent of Rs, 2,268 was to continue till legally altered, and cannot be considered as investing the officer of the respondent-Corporation with a power to carry out a fresh assessm ent. In fact, until the rules are framed, no assessment, could have been carried out."
' The above view was examined in Karachi Municipal Corpz.Ration and Statutory Body v. Eduljee Dinshaw Ltd. And another (2). In this ruling sections 33 and 41 of Municipal Administration Ordinance were considered and it was held that levy of new tax was distinguishable from increase or re-assessm ent of existing tax. It is further held' that levy of tax could be made under old Municipal Rules if rio new rules were framed under Municipal Administration Ordinance of 1960. In this case the main argument of the learned counsel for the appellants is that from the date of the enforcement of Municipal Administration Ordinance of 196 i,e, 11th April, 1960 till the date of framing of the Rules thereunder i,e, 28th June, 1962 no authority could competently assets the rent of the premises in question. The very bottom of ;his case is knocked down by the last-mentioned ruling in which it is held that even under the old Rules the rent could be assessed during the period when the rules were not framed under Municipal Administration Ordinance, 19f 0. In the instant case also the assessm ent of rent was made under the Municipal Corporation Act, 1933 and the same was a valid assessm ent.
5 No other point was canvassed before me.
6. As a result of the above discussion I find no substance in this appeal which is hereby dismissed with costs. The appellants are however allowed four months' time to put the respondents in vacant possession of the premises in question subject to their depositing rent at the rate of Rs, 30 per month with the Rent Controller.
L Q. .