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Petitioner: ABDUL BERMAN THROUGH LEGAL HEIRS VS Respondent: PROP. GHULAM RASOOL TANWIR JUDGMENT
Court Name: Lahore High Court Judge(s): Zia Mahmood Mirza Title:ABDUL BERMAN THROUGH LEGAL HEIRS vs PROP. GHULAM RASOOL TANWIR
JUDGMENT
Reported As: PLD 1985 Lahore 423 Result: Petition dismissed Judgment JUDGMENT ' This constitutional petition has been filed by the tenant to call in question the order of the District Judge, Faisalabad, dated 25-2-1980 directing his ejectment from the shop in dispute. 2. Facts necessary for the disposal of this petition, briefly stated, are that an evacuee property bearing No, P. 34, Ward No, 3, Katchery Bazar, Faisalabad, which comprised a shop on the ground floor and residential portion above was transferred to Professor Ghulam Rasul Tanwir respondent No, 1 by the Settlement Department in November, 1959 but P. T. 0. Was issued to him on 20-11-1968 as the matter of transfer of the said property remained pending in the higher Courts. Abdur Rahman petitioner was in occupation of the said shop transferred to respondent No, 1. Respondent sent a registered notice (Ex. AW. 4/1) on the lower Court's record) to the petitioner on 15-5-1972 intimating about the factum of transfer of the property to him and also demanding payment of rent for three years preceding the date of the notice at the rate of Rs, 350 per month which was based on the "House Tax" assessed for the property. Copy of this notice is available on the present record at page 143-145 and also at page 205-207. Petitioner sent a reply (Exh. P. 7 at page 147-149) wherein he did not accept the transfer of the property in dispute in favour of respondent No, 1 stating that he was agitating against it. Petitioner also challenged in his reply the assessm ent made in the year 1967-68 at Rs, 4,165 as illegal and stated that correct annual assessm ent of the whole of the property was Rs, 2,700 according to which its monthly rental was Rs, 225 and the proportionate monthly rent of the shop in dispute, at 'the most, was Rs, 177. He, therefore, sent, under protest, a cheque for Rs, 7,080 towards the arrears of rent from 1-5-1969 to 31- 8-1972 at the rate of Rs, 177 per month. On the receipt of this reply from the petitioner, respondent
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No, 1 gave another notice to him on 7-10-1972. (R. 8 available at page 211-213 on the present record) whereby he informed the petitioner that as per the latest assessment made effective from 1-7-1972 in pursuance of the order of the Director, Excise and Taxation Department dated 18-9-1972, monthly rent of the shop was fixed at Rs, 900 which rent he claimed to be paid with effect from 1-7-1972. In this notice, respondent No, 1 pointed out that to start with, monthly rental of the shop in dispute was assessed by the Municipality at Rs, 520 but later on, Excise and Taxation Department in collusion with the petitioner fixed its rental value at Rs, 350 per month. This notice was also replied by the petitioner on 11-11-1972 vide Exh. P. 8/R. 14 (available at page 235-237) contesting the rate of rent demanded by the respondent No, 1. Respondent, therefore, feeling that the petitioner by not paying the rent demanded by him had committed default in the payment of rent, instituted ejectment petition against him on 23-12-1972. This petition was vehemently contested by the petitioner by raising a number of objections. He, inter alia, questioned the validity of the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and also denied the relationship of landlord and tenant. Issues based on some of the objections were decided earlier. How ever, following issues which are relevant for the purpose of the present petition were framed by the learned Rent Controller on 14-12-1977, (1) Whether the petitioner has demanded legal rent under section 30 of Act XXVIII of 1958 ? 0. P. A. (2) If issue No, 1 is not proved what is the rate of rent ? 0. P. P. (3) Whether the respondent has committed default in the payment of rent ? O. P. A. (4) Relief. 3. Both the parties led evidence, oral as also documentary, in support of their respective contentions. Learned Rent Controller proceeded on the premises that the respondent No, 1 could demand the rent on the basis of the assessment made by the Municipality or the local authority whereas demand made by him was based on the assessment of the Excise and Taxation Authority. It was, therefore, held on issue No, 1 that the demand of rent made by the respondent-landlord was illegal. As regards issue No, 2, learned Controller relied upon Exh. P. 13 which was a copy of the assessm ent made by the Municipality for the year 1960-61 and held that "the rent of the shop in dispute within the scope of assessm ent carried out by the Municipality is Rs, 450 per month". On the question of default, learned Rent Controller held that in view of his finding in issue No, 1, no legal notice of demand was sent by the landlord and consequently the petitioner could not be held defaulter. With these findings, eviction petition was dismissed by the learned Rent Controller by order dated 14-7-1979. 4. Respondent-landlord preferred an appeal which was accepted by the learned District Judge, Faisalabad by his otder dated 25-2-1980 holding that the demand of Rs, 350 per month as rent was not illegal in view of the assessment made by Municipality in the year 1960-61 (Exh. P. 13) showing the rental value of the shop in dispute at Rs, 5,516 and the order of the Assessing Authority dated 12-6-1967 (Exh. P. 11) whereby the shop in dispute was assessed at Rs, 4,208 i,e, at the rate of Rs, 350 p.m. Thus the finding of the Rent Controller on issue No, I was set aside. Regarding issue No, 2, it was held that in view of the affirmative finding on issue No, 1, issue No, 2 did not arise. It was, however, observed that if the respondent-landlord felt that he was entitled to the enhanced rate of rent, "he may file a separate suit to recover arrears of rent". With these findings, learned District Judge came to the conclusion that as the petitioner was all along offering rent at the rate of Rs, 177 per month, he had not properly discharged his liabilities and had, therefore, committed default in payment of rent. Petitioner was accordingly directed to be ejected from the shop in dispute. 5. Petitioner challenged the aforementioned order of the District Judge through the present constitutional petition. Respondent-landlord also filed Writ Petition No, 10726 of 1980 to seek a modification of the order so as to declare "that the liability of the tenant to pay the rent to the
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petitioner according to the latest assessment is Rs, 900 p.m." which writ petition has, however, been withdrawn and disposed of accordingly. 6. Learned counsel for the parties have been heard at considerable length. They also placed on record written arguments in the form of Notes. 7. Mr. Munir A. Sheikh, learned counsel for Abdur Rahman petitioner raised the following contentions :- (i) That the notice dated 15-5-1972 (Exh. A W 4/1) was illegal because it demanded rent on the basis of the assessm ent of the shop in dispute whereas according to proviso (a) to section 30 (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, assessment of other properties in the locality should have been the basis of the demand for rent (ii) That as the demand of rent made by the respondent-landlord was not in accordance with law, petitioner was liable to pay only Rs, 48 as monthly rent which he had been paying to the Rehabilitation Department ; and (iii) That even if the notice sent by the respondent be treated as legal, demand of Rs, 350 p.m. As rent would be operative from the date of notice and not for the period prior thereto, for which period, petitioner was liable to pay only that rent which he was paying to the Rehabilitation Department. In this view of the matter, petitioner by tendering Rs, 7,080 through cheque had paid more than the rent due from him upto the institution of ejectment application. (As submitted by the learned counsel, rent due from 15-5-1969 to 15-5-1972 at the rate of Rs, 48 per month was Rs, 1,728 and rent due from 16-5-1972 to 23-12-1972 i,e, date of filing of the ejectment application at Rs, 350 per month would come to Rs, 2,543.) ' In support of his submissions, learned counsel for the petitioner has relied on Malik Abdul Aziz v. West Pakistan Publication Company (Private) Ltd. (1), Mian Rehmat All v. Khadeja Hakim (2), Muhammad Musa v. Mistri Dilshad Muhammad and another (3), Profe.)sor Qazi Ghulam Kibrya and 8 others v. Afzal Ahmad Khan (4), Ghulam Hussain alias Zahir v. Ch. Muhammad Afzal etc. (5), Tahir All v. Mst. Masoodi Begum and 4 others (6), Abdul Jaobar v. Mst. Nafeesa Khatoon (7), Nizam Din v. Mst. Nawab Bibi (8), Muhammad Ismail v. Muhammad Sharif (9), Ghulam Mohyuddin v. Suba Khan (10), Khuda Bakhsh v. Mian Fazal Din (11), Amir Hussain v. Syed Mahmood All (12) and 1983 CLC 818. 8. Learned counsel appearing for the respondent-landlord, on the other hand, contended that in pursuance of the proviso (a) to section 30 (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, respondent-landlord was entitled to claim the rent on the basis of the latest assessm ent carried out by the Municipality or the local Authority and he could charge such a rent with effect from the date of transfer subject, of course, to the condition that the rent claimed/demanded was not time-barred. Learned counsel cited "Muhammad Sharif v. Fazal Hussain" (13) to controvert the proposition that the tenant was not obliged to pay the arrears of rent for the period precedent to receipt of the notice on the basis of the latest assessment. He submitted that the tenant was liable to pay the rent from the date of transfer on the basis (1) PLD 1965 Lab. 82 (3) PLD 1968 Lab. 252 (5) 1978 SCMR 269 (7) 1982 CLC 447 (9) PLD 1976 Lah. 150 (11) 1979 CLC 279 (13) PLD (2) PLD 1967 Lah. 29 (4) PLD 1973 Note 160 at p. 241 (6) 1980 CLC 1332 (8) PLD 1970 Lah. 923 (10) PLD 1977 Lab. 1094
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(12) 1979 CLC 745 1976 Lab. 1318 , of the latest assessm ent except the rent which had become time-barred. Learned counsel for the respondent also heavily relied upon Sh. Fazal Elahi v. Muhammad Saddiq and 7 others (0 to canvass the proposition that his client was entitled to charge the rent as determined according to the latest assessm ent as made by the relevant authorities and it is not open to the Rent Controller to go behind such an assessm ent. 9. Before dealing with the contentions raised by the learned counsel, I would like to mention that a Division Bench of this Court on a reference made in this case has held by order dated 24-9-1984 that the assessm ent carried out by the Excise and Taxation Department under the West Pakistan Immovable Property Tax Act, 1958, could be treated as assessment made by the Municipal Committee and the same could furnish a valid basis for assessment of rent for the purpose of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. 10. As the contentions raised by the learned counsel mainly involve the interpretation of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it will be appropriate to reproduce the same which reads as follows :- "30. Protection of certain occupants.-0) 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, 194/ in any industrial concern, cinema house or printing press 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, 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 he 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 givqn 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 section (I) 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 (acknowledgment due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer ; or (1) PLD 1980 Lah. 489 (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
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between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship." Clause (1) of section 30 aforesaid creates the statutory relationship of landlord and tenant between a transferee of an evacuee property and a person in occupation thereof. Person in possession is "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". Transferee could, however, by virtue of proviso (a) to section 30 (1) lawfully charge the rent on the basis of the latest assessm ent of the Municipal Committee or local authority. Proviso (b) grants protection to the statutory tenant against ejectment for a period of six years which period is to commence from the date of transfer if notice is given by the transferee within one month of such transfer and where such notice is not given within one month then from the date of receipt of such a notice. Tenant, however, forfeits his right to continue in possession for the statutory period if he does not pay or tender the amount of rent or arrears of rent due for any period after the transfer within three months from the date of the receipt of notice of demand sent to him by the transferee by registered post (acknowledgment due) or commits any other default specified in clause (ii) of subsection (3) of section 30. 11. Now in the present case, facts which are not in dispute are that the petitioner was paying Rs, 48 per month as rent of the shop in dispute to the Rehabilitation Department. After the issuance of P. T. 0. On 20-11-1968, respondent-landlord gave statutory notice to the petitioner on 15-5-1972 demanding from him rent for three years preceding the date of notice at the rate of Rs, 350 per month. It was made clear in the notice that rate of rent demanded was based on the "house. Tax" assessed for the property in dispute. Petitioner did not pay the rent as demanded from him and instead offered to pay the rent at the rate of Rs, 177 per month which according to him was the proper rent. Respondent sent another notice to the petitioner on 7-10-1972 demanding rent at the rate of Rs, 900 per month w,e,f, 1-7-1972 and this enhanced rent he claimed on the basis of the order dated 18-9-1972 (Exh. P. 9/Annex : R. 11) passed by the Director, Excise and Taxation whereby monthly rental value of the shop in dipute was fixed at Rs, 900. Petitioner also disputed this enhanced rent as illegal. It is however, no more necessary to pronounce upon the validity of this second notice and its effect in view of the fact that the respondent-landlord has withdrawn the writ petition filed by him. Thus the questions which arise for consideration are (i) Whether notice dated 15-5-1972 (Exh. A.W, -4/I) suffered from any illegality; and (ii) If the said notice was legal, whether the respondent-landlord was entitled to receive the rent which he demanded at the rate of Rs, 350 p.m. For three years preceding the date of notice. 12. As regards the first question regarding the legality of the demand notice, learned counsel, presumably on account of the view expressed by the learned Division Bench in the reference made in this case, did not press the ground raised before the Tribunals below viz. The respondent could lawfully demand the enhanced rent on the basis of the assessment carried out by Municipal Committee or Local Authority and not on the basis of the assessment made by the Excise and Taxation Department. Before me, learned counsel assailed the validity of the notice on the ground that the rent demanded therein was fixed on the basis of the assessment made in respect of the shop in dispute alone whereas according to proviso (a) to section 30 (1) as amended, rent should have been determined on the basis of the latest amendment carried out for other properties in the locality. For this proposition, learned counsel relied upon the words "for other properties in the locality generally," added in the proviso (a) by amendment introduced by Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Act (XIX of 1963). He contended that before this amendment, there was a tendency amongst the transferees of the evacuee properties to get their properties assessed at higher rates so as to charge excessive rent from the occupants/tenants. These words were added, according to the learned counsel, with a view to
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safeguard the interest of the tenant. Precise submission of the learned counsel was that the assessm ent which the respondent made the basis of his demand was carried out by the relevant authorities without taking into consideration the rental value of other properties in the locality in which the shop in dispute is situate. Respondent could not, therefore, lawfully demand the rent on the basis of that assessm ent nor could the petitioner be ejected for non-compliance with that demand. ' Import and intent of the aforesaid amendment in proviso (a) came to be examined in the afore- referred case of "Fazal Ilahi" relied upon by the learned counsel for the respondent and it was held that "what the Legislature intended by the aforesaid amendment introduced on 6-9-1963 by Act XIX of 1963 is 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." ' Reference may also be made to the following observations of the Supreme Court in 1975 SCMR 74 relied upon in the afore-referred case of Fazal Ilahi "In the High Court the petitioner raised a new point namely that the respondent-landlord cannot charge rent on the basis of the latest assessment, unless the requirement of section 9 of Ordinance VI of 1959 is satisfied. The section provides inter alia that a landlord can increase the rent 'subject to the approval of the Controller' even if such increase be in consequence of a fresh rate, cess or tax levied in respect of a rented premises provided that the increase in the rent shall in no case exceed one-half of the existing rate of rent. The learned Single Judge repelled the objection taken by the petitioner on the ground that the relationship between the parties is entirely govered by section 30 of 1958 Act, which, by virtue of section 36 ibid shall have overriding effect notwithstanding any other law to the contrary. The first proviso to subsection (1) of section 30 expressly makes it lawful for the transferee of the property to charge rent on the basis of the "last assessment carried out by a Municipality or a local authority". The provisions of the section are not hedged by any further condition that the increase in rent should also have the approval of the Rent Controller before it becomes chargeable by the landlord. In reaching that conclusion, the learned Single Judge relied upon a judgment of this Court in Ahmad Khan v. Sakina Bibi 1969 SCMR 435. The view taken by the learned Single Judge is unexceptionable." In view of the legal position enunciated above, it is quite clear that even if it be assumed that the assessm ent on the basis of which respondent demanded the rent from the petitioner vide Notice Exh. AW. 4/I was not carried out in terms of proviso (a) to section 30 (1), it was not open to the Tribunals under the Rent Restriction Ordinance to go behind it and to question the validity of the demand notice based thereon. Validity of such an assessment could be challenged under West Pakistan Urban Immovable Property Tax Act, 1958 or the Municipal Act, as the case may be. It may be pertinently pointed out that the Assessing Authority while assessing the rental value of the shop in dispute took note of the rental value of other properties in the locality which is evident from the following observations made in its order dated 12-6-1967 (Exh. P. 11/ Annexure R. 10) :- "Mr. Ghulam Rasul Tanwir the owner is present and has been heard. His contention that the property is not assessed in conformity with other properties in the area is not supported by facts. The property under review is situated in the best commercial area of the city However, assessment has been made on the basis of rent which the property can normally fetch from year to year. It has been worked out on the average of different rents prevailing in the locality." 13. Thus the Assessing Authority, after taking all the relevant facts into consideration, assessed the annual rental value of the shop in dispute at Rs, 4,208. Petitioner did not object to the assessment.
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On the other hand, respondent No, 1 made a representation on which the Director, Excise and Taxation, after holding full inquiry and after taking into consideration rental value of the neighbouring properties assessed the shop in dispute at Rs, 900 per month by his order dated 18- 9-1972 (Exh. P. 9/ Annexure R. 11). ' Thus viewed from whatever angle, latest assessment made by the relevant authorities was not open to question on any premises and notice dated 15-5-1972 (Exh. AW. 4/1) demanding Rs, 350 per month as rent, based as it was on the assessments Exh. P. 13 and Exh. P. 11, was perfectly lawful. 14. As regards the second question formulated in para. 11 ante, learned counsel for the petitioner did not deny the liability of the petitioner to pay the arrears of rent lawfully due for the period preceding the notice of demand. He, however, contended that the liability to pay the enhanced rent on the basis of the latest assessment in terms of proviso (a) became effective from the date of notice of demand and not for any period prior thereto. In support of this proposition, learned counsel placed reliance on PLD 1976 Lah. 150, PLD 1977 Lah. 1094, PLD 1970 Lah. 923, 1979 CLC 279, 1979 CLC 745 and 1983 CLC 818. All these cases, as will be shown here in below, are distinguishable on facts. 15. Arguments raised by the learned counsel for the petitioner overlooks the proviso (a) and its true import and effect. It is well settled that a proviso is an exception to the substantive provision and it must be construed with reference to and in the light of the substantive part of the section. Refer PLD 1950 Lah. 12 and PLD 1967 Pesh. 99. It was held in Abdul Rauf v. Abdul Aziz and others (1) that "a proviso although it is enacted to qualify, or create an exception to a general rule or statement is not to be construed in a manner which would nullify the effect of the main section to which it is merely a proviso. A proviso simply carves out something from the section itself without destroying that section. It would be absurd to hold that the Legislature was taking away with one hand what it was giving with the other'", Section 30, in its subsection (1) provided that a person in…
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