1989 PLP 4493 (MLD)

ALLAHDINO G. MEMON, J.--By this Constitutional Petition, the petitioner has assailed the legality of an order passed by respondent No.1 dated 14-2-83 whereby while exercising suo motu powers under section 10 (2) of Sind Urban Immovable Property Tax Act he maintained the orders of the assessing authority to the extent of assessment GARV of Rs.36,000 for land as well as building. However, as far as liability to pay tax was concerned, each party was directed to pay 50% of the tax so imposed. .

2. The brief facts giving rise to the present petition are that the respondents Nos.3 to 7 who are the owners of the plats of land bearing survey Nos. 9 and 10, survey sheet No. T.L.3, Harchand Rai Road, Tahilram Quarters, leased out 474 sqr. yds from plot No. 10 and 179, 166 sqr. yds from Plot No.9, to the petitioner by a registered Lease Deed dated 1-11-1964, on monthly rent of Rs.3,000 for the purpose of erecting and installing thereon Petrol-tanks Petrol Pumps, Service station and other structures specified in the lease deed. One of the terms of the lease deed was that the lessee shall defray all rates, taxes, assessments and outgoing payable by law in respect of the structures erected namely the petrol pump, underground tanks, service station etc. etc.

3. The GARV of the lease land and structures erected thereon by the petitioner was assessed for the purpose of property tax by Excise & Taxation Officer `E' Division, Karachi, at a consolidated sum of Rs.36,000 treating the structures as appurtenance land and hence the payment of tax was made the liability of respondents No.3 to

7. The respondents No.3 to 7 preferred revision against the said order before the respondent No.2 who allowed the same on 5-3-1975. whereby he held that the land upon which the service station and other structures had been erected by the petitioner was appurtenance to the service station and the other structures and hence the entire assessment, both in the respect of land and the structures under West Pakistan Urban Immovable Property Tax Act 1958, be realised from the owner of the super structures, namely the petitioner.

4. That the petitioner challenged the above order passed on 5-3-1975, by a petition being C.P.No.497 of 1975, which was allowed by a Division Bench of this Court on 17th June, 1978, and the following order was passed:- "For the foregoing-reasons, I am of opinion, that the impugned order is without legal effect. I would accordingly quash the same but, in the circumstances of the case, leave the parties to bear their own rests for avoidance of doubt, I would like to make it clear that the quashing of the impugned order is not to be deemed as any bar to the proper exercise by the Director-General of his suo motu powers to revise the orders of the Assessing Authority on any grounds envisaged by the said Act."

5. However, it appears that after about 4-1/2 years an application was moved to the respondent No.2 by respondents Nos. 3 to 7, who took up the revision on suo motu side, heard the parties and passed the impugned order which has been challenged before us.

6. We have heard Mr. G.M.Qureshi, learned counsel appearing for the petitioner, Mr. Rustam J.E.Kaikabad learned counsel appearing for respondents Nos.3 to 7, and Mr. A.A.Mohammad Ali, learned Additional A.G. appearing for the Respondents Nos.1 and 2. 7 It was contended by Mr. G.M.Qureshi, learned counsel for petitioner that respondent had erred in passing the impugned order on suo motu side on the belated application, filed by respondents Nos. 3 to

7. He further submitted that revision could be filed under subsection 2 of section 10 of West Pakistan Urban Immovable Property Tax Act 1958, within one year; whereas the respondent was authorised to take up the matter on his own motion at any time. Since in the present case the matter was not taken suo motu but it was taken up on the application of the respondents Nos.3 to 7, therefore, the respondent No.1 has illegally by entertaining suo motu revision, after lapse of more than four years. He has further contended that the Lease deed clearly shows that the structures were appurtenances to the land and not vice versa. Consequently, the respondent No.2 had erred in holding that the land was appurtenant to the structures, and has acted in contravention of the-provisions of the said Act. In support of his contention the learned counsel has relied upon 1968 SCMR

445. S. Mr. Rustam J.E. Kaikabad, learned counsel appearing for the respondents Nos.3 to 7, has contended that while deciding the liability regarding payment of Urban Immovable Property Tax, was that of petitioner which is clear from clause (f) of para (2) of the lease deed. However he did not seriously controvert the contention of Mr. G.M. Qureshi, that the suo motu action way taken on the basis of application moved by respondents Nos.3 to 7 and that the same was belated one. Mr. A.A. Muhammad Ali contented that the respondents were entitled to get tax from whosoever was liable to pay.

9. We have considered the contentions of the learned counsel. It is an admitted position that the order passed by respondent No.1 on 5-8-1975, was set aside on 17th June, 1978, however, while quashing the said order, it was left upon to the-respondent No.1 to exercise his suo motu powers to revise the orders of order on any ground envisaged by the said Act.

10. However, under section 10(2) of West Pakistan Urban Immovable Property Tax Act V of 1958, the respondent No.1 could exercise suo motu revisional powers at any time and no time limit was fixed. In the present case since the earlier order was quashed by this Court, the suo motu revisional power could be exercised within a reasonable time. Notice elated 9-1-1983 produced as Annexure "D" clearly shows that it was only when the respondents Nos.3 to 7 moved application after about more than four years, that the respondent No.1 issued notice to the petitioner to appear before him on 17-1-1983. Although, the order purports to have been passed in exercise of suo motu powers, but in effect it was passed on the application moved by respondents Nos.3 to 7, and therefore, it was clearly time-barred inasmuch as, it was passed after 4-1/2 years of the decision in the constitutional petition. The object of section 10(2) of the said Act is to provide protection to a party against being vexed by rival party after the period prescribed for filing of revision application has expired. If any unsuccessful party could be permitted to invoke the suo motu revisional powers of the competent authority after the expiry of period of limitation for filing of revision application; the very purpose of prescribing the limitation period for filing of such an application and the distinction between the exercise of suo motu revisional powers and initiation of proceedings upon revision application, specially by aggrieved party would be obliterated.

11. In view of the above infirmity-in the impugned order, we do not consider it necessary to comment on the merits of the case, except to point out that in the case of Begum Samad v. Additional Commissioner 1968 SCMR 445 relied upon by the learned counsel for petitioner; their lordships of the Supreme Court repelled the contention that in the case of land acquired by an Oil Storage and Distribution Company for the purpose of setting up a service station the property should have been assessed as "Building with its appurtenances" and upheld the order of the Additional Commissioner, the material part whereof is as follows:- "I think the assessment of tax should be made only on the basis of Rs.2,500 monthly rental value on which the plot was actually leased out. It would not be justifiable to assess the superstructure separately as the rent of Rs.2,500 would never be paid if it was not intended for construction of a Petrol Pump. Accordingly, therefore, I would reduce the GARV to only Rs.30,

000. For the foregoing reasons, the above petition is allowed and the order dated 14-2-1983 passed by respondent No.1 is accordingly set-aside. However, in the circumstances of the case, we leave the parties to bear their own costs.

12. We had decided the above petition on 6-6-89, by a short order, and these are the reasons for the same. M.Y.H./C-114/K Petition allowed.