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Writ Petition No. 120 of 1962, decided on 17th December 1962.

S. 4 (1) (2) read with S. 41 (1)‑Repealing City of Lahore Corporation Act (XV of 1941) ‑ Building re‑assessed to house tax under City of Lahore Corporation Act, 1941 after repeal of that Act‑Re‑assess ment, held, illegal‑Notification No. S. O.‑II (L. G.)‑17(9)/60‑II, dated 28‑6‑1962 notifying West Pakistan Municipal Committees (Buildings and Lands Tax) Rules, 1962.

Abid Hassan Minto for Petitioner.

Sh. Mazhar‑ul‑Haque for Respondent No. 1.

Respondent No. 2 : In person.

Dates of hearing: 13th and 14th November and 10th December 1962.

This is a petition by the Punjab Association Club 9, Egerton Road, Lahore, through its Treasurer, against (1) the Corporation of Lahore, through its Chairman and (2) Pirzada Nazeer Hassan, praying that the re‑assessment of the property which is entered in the Lahore Corporation registers as S‑E‑27/R‑1, effected by increasing its rental value, be quashed by means of a writ of certiorari or any other appropriate writ.

2. It may here be mentioned that the petition was instituted on the 5th of January 1962, before the coming into force of the present Constitution.

3. The facts, as stated by the petitioner, are that the Club is a social one, registered under the Societies Registration Act. The property was originally owned by a non‑Muslim and the petitioner Club was a tenant, first of the owner and later of the Rehabilitation Department. The said department fixed a rent of Rs. 210 per month, which the petitioner paid regularly.

4. On the 29th of November 1959, the property was transferred by the Settlement and Rehabilitation Department to respondent No. 2. According to the petitioner, the first intimation he received of the transfer was when he was served on the 16th of September 1960 with a notice from respondent No. 2 demanding rent at the rate of Rs. 1,000 per mensem. On the petitioner's enquiring the reason for the enhancement, respondent No. 2 replied that he was acting on the basis of the latest assessment made by the Corporation of Lahore and added that the re‑assessment had taken place in 1960, after the transfer of the property in his favour. The petitioner accordingly applied to the Chief Officer of respondent No. 1, praying that the re assessment be cancelled. He was subsequently directed by the Assessor of respondent No. 1 to appear before him on the 12th of September 1960 and did so, but was informed that as the application for enhancement of the annual rental value of the property had been made by respondent No. 2, the owner, the petitioner as tenant had no locus standi to object. The application was accordingly rejected without hearing the petitioner.

5. Against the above decision of the Assessor, petitioner made an application to the Chairman of Corporation and alleges that the latter ordered the enhanced value to be reduced, but that before the order could be carried out, the Secretary, Department of Local Self‑Government, West Pakistan, intervened. It may here be mentioned that the intervention was on the basis of letter No. SOXI‑1916/61, dated the 8th of July 1961, from the Secretary to Government, West Pakistan, Basic Democracies and Local Government Department, to the Chairman, Municipal Committee, Lahore, which runs:

"I am directed to enclose herewith a copy of a petition dated 22‑6‑1961 from Pirzada Nazir Hassan, Deputy Registrar (Industries), Co‑operative Societies, West Pakistan, Lahore, and to request that a detailed report on the facts of this case may kindly be furnished to this Department immediately. I am also to request that pending final orders on this petition, further action for the re‑assessment of this property should be stayed."

6. Respondent No. 2 subsequently applied to the Rent Controller, Lahore, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for the ejectment of the petitioner from the premises in dispute on the ground of non payment of the revised rent. The petitioner appeared and pleaded, inter alia, that the alleged re‑assessment was illegal and that no ejectment could be ordered on the basis of it, but the Rent Controller refused to frame any issue on the above point on the ground that he had no jurisdiction to enter into the validity or otherwise of assessment.

7. The petitioner further states that he applied to respondent No. 1 for a copy of the 1960‑61 assessment of the premises in dispute, but that the application was rejected on the ground that no survey was conducted in that year. The petitioner, however, alleges that this respondent had already supplied a copy of an alleged assessment for the year 1960‑61 to respondent No. 2 and that it was on the basis of that copy that the latter proceeded to take action for the ejectment of the petitioner.

8. The re‑assessment of the premises in dispute is challenged on the following grounds :‑

(1) That it took place in 1960 when the City of Lahore Corporation Act, 1941, had already been repealed and the Pakistan Municipal Administration Ordinance (X of 1960) had been enforced and that as no rules had been framed under sections 33 and 41 of that Ordinance, the re‑assessment was illegal.

(2) That as the petitioner was in occupation of the property, the re‑assessment should not have been carried out without affording him the opportunity of being heard.

(3) That even if the assessment be deemed to have been made under the City of Lahore Corporation Act, 1941, it is invalid for non‑compliance with the provisions of sections 115 to 118 of the said Act.

9. The petitioner has also given a number of reasons for describing the re‑assessment in dispute as mala fide, namely, that the action was taken unilaterally at the request of respondent No. 2 ; that there was no basis for re‑assessment, there having been no improvement either in the property itself or in the locality in which it is situated ; that no evacuee property had been re‑assessed in Lahore for the purposes of property‑tax since 1946, that no general survey of such property has yet been carried out ; and that the Secretary to Government, West Pakistan, Basic Democracies and Local Government Department, went out of his way to interfere.

10. In his written statement respondent No. 1 raised the following points :‑‑

(1) That as the primary and direct liability for payment of Municipal Property‑tax is that of the owner, a tenant not being liable to make such payment, the petitioner had no right to object to the re‑assessment, which was enhanced from Rs. 2,268 to Rs. 10,800 having due regard to the scales of rent obtaining in the locality.

(2) That it is incorrect that the Appeal Rules contemplated by Article 119 of Ordinance X of 1960 have been framed. This somewhat vaguely worded allegation really means that the authority which had to be prescribed by the above clause has been prescribed, and is the Chairman in the case of an order passed by a subordinate officer of the Corporation.

(3) It is admitted that the Chairman of the respondent Corporation deemed it advisable to reconsider the question of the enhancement of the old valuation of the property in dispute by more than 33^1/3% prescribed by Government policy for the fixation of fresh rental value of non‑Muslim evacuee properties, but it is contended that before action could be taken the letter dated the 8th of July 1961 from the Secretary to Government, West Pakistan, Basic Democracies and Local Government Department, above referred to, was received.

(4) That the petitioner could have challenged the order of enhancement of assessment by filing an appeal to the Chairman of the respondent Corporation.

(5) That the failure of Government to frame new rules under Article 41 of Ordinance X of 1960 does not invalidate the re‑assessment, the power to levy a municipal tax on buildings and lands having been sanctioned under the Municipal Act of 1911, continued by the City of Lahore Corporation Act and validated by Article 4 (2) of Ordinance X of 1960.

(6) The, allegation of the petitioner that the re‑assessment is mala fide is repudiated, it being contended that the owner had the right to move the Corporation, and that as the general scale of rents had risen considerably since Partition, the proposed enhancement was fully justified and equitable. It is also denied that no other re‑assessment has been carried out. Finally, it is stated that the comments required by the letter forming Annexure R‑1' to the written statement (the one already referred to in paragraph 5) have been submitted to Government and that final orders are still awaited.

11. There is no doubt in our minds that the impugned order is illegal. The Municipal Administration Ordinance (X of 1960) was published vide Gazette of Pakistan Extraordinary, dated the 11th of April 1960, and subsection (3) of section 1 provides that sections 1 and 3 shall come into force at once and the remaining provisions of the Ordinance in such areas and on such dates as the Government may, by notification in the Official Gazette, appoint. Section 1 merely gives the short title, extent and commencement of the Ordinance, while section 3 lays down various definitions. By Notification No. SOH (L) I‑1/60, dated the 1st of May 1960, the Governor of West Pakistan appointed the Ist of May 1960 as the date on which the provisions of the Ordinance, other than sections 1 and 3 thereof, should come into force in the whole of West Pakistan except the Federal Capital and the Special Areas. As the property in dispute is situated in Lahore, it is covered by the above notification. Section 4 of the Ordinance also provides that on its coming into force in any area, the enactments mentioned in the First Schedule shall, if and in so far as applicable to that area, stand repealed. The City of Lahore Corporation Act (Punjab Act XV of 1941) occurs at serial No. 10 of the Schedule in question and, therefore, stands repealed from the Ist of May 1960.

12. Subsection (1) of section 41 of the Ordinance provides that all taxes, rates, tolls, fees and other charges levied by a Municipal Committee shall be imposed, assessed, leased, com pounded, 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 re‑assess 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 assessment. In fact, until the rules were framed, no fresh assessment could have been carried out:

13. By Notification No. S. O. II (L. G.)‑17 (9)/60‑II, dated the 28th of June 1962, the West Pakistan Municipal Committees (Buildings and Lands Tax) Rules, 1962, were published. Rule 2 (d) provides that unless otherwise directed by Government, the Buildings and Lands Tax shall be assessed and collected one behalf of the Municipal Committee by an officer of the Provincial Excise and Taxation Department. The officer in question is thus the Assessing Authority prescribed by the Ordinance, and it is clear that no officer of the respondent Corporation can exercise that function.

14. The contention of respondent No. 2 that the present petition is premature is also without substance. It appears to be based on the supposition that an appeal could have been filed with the Chairman of the Corporation against the order of the Assessor enhancing the annual value of the property, but this contention is misconceived. As already pointed out, the impugned order was passed, not under Ordinance X of 1960 but under a repealed enactment after the repeal and such an illegal order cannot be made appealable under the Ordinance or under any other provision of law.

15. For the above reasons we grant the petitioner a declaration that the order of re‑assessment of the property in dispute passed by the Assessor of the respondent Corporation is without lawful authority and of no legal effect. This in turn means that no proceedings for recovery of rent or otherwise can be taken by any authority on the basis of the impugned order. In the circumstances, we direct that the costs of the petition be borne by the respondents in equal shares.

A. H. Petition allowed.

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