P L D 1985 Lahore 217 (PLP)

"Where a new Act is couched in general affirmative language, and the previous law can well stand 'with it, and the language used in the later Act is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new law may stand together . . . . . "But where affirmative words in a later Act are, as was said in Stradling v. Morgan, such as necessarily import a contradiction-that is to say, where it is clear that it must have been intended that the earlier and later enactments should be in conflict-the two cannot stand together, and the second repeals the first." As to the expression "subject to any other law" the learned counsel has tried to equate the same with that of the provision as given in Article, 98(1) of the Constitution of 1962 which provides that the High Court will have only such jurisdiction as is conferred by the Constitution or the law by referring to the minority judgment in Muhammad Khan v. Border Allotment Committee (P L D 1965 S C 623), wherein it has been held that Article 98(1) of the Constitution cannot be read as saying that by law the jurisdiction conferred by the Constitution can be taken away. The words "subject to the Constitution" in Article 98(1) mean that the jurisdiction provided for in Article 98(1) can be exercised except where the Constitution Itself creates a bar . . . . . The words `subject to this Constitution' do not mean subject to a law framed by virtue of the power granted to a legislature by the Constitution . . . the jurisdiction granted by Article 93 is subject only to this Constitution and not to this Constitution and the law." ; Ch. Abdul Shani v. Islamic Republic of Pakistan (P L D 1958 Lah. 584), wherein it has been observed that the words `subject to law' occurring in Article 18 of the Constitution (1956), do not mean that there may be a law which would regulate the actual performance of pilgrimage, for the actual performance is a ritual which itself constitutes the practice of religion. What is intended to be meant is that if in the performance of a religious duty certain secular steps have to be taken, then these steps may be regulated by law.

12. The learned counsel for the petitioners in Writ Petition No. 4007 of 1983, has submitted that the Government was to pay 85 per cent. of the tax after deducting 5 per cent as collection charges under section 3-A of the Punjab Urban Immovable Property Tax Act, 1958. The legislature thought it fit to give the power to impose tax to the local councils through the chosen representatives instead of its collection by the Government and then its distribution to the local councils. The Act V of 1958 and the Local Government Ordinance, 1979 are inconsistent, so cannot exist together, therefore Ordinance VI of 1979 being later in time impliedly repeals Act V of 1958. As to the implied repeal in various situations the learned counsel has relied upon Pehlwan Khan v. J. F. Elahi (P L D 1962 Lah. 751), Abul A'la Maudoodi v. Government of West Pakistan (P L D 1964 S C 673), Abdul Samad v: Iqbal Ahmad Khan (P L D 1972 Lah. 41), S. A. Matin v. Province of Sind (P L D 1976 Kar. 3h), Muhammad Ghias and others v. Market Committee, Kamalia and another, Maxwell- On Interpretation of Statutes (Twelfth Edition), page 193, Statutory Construction by Crawford, Para. 311, page

631. He has further maintained that as the legislature had the complete knowledge of the existing law, therefore, it was also aware of section 11 of the Punjab Finance Ordinance (XI of 1971). The words `subject to any other law for the time being in force', were present in section 132 of the Peoples' Local Government Ordinance VIII of 1972 which came into force on 12th April, 1972. But in spite of that the legislature in its wisdom thought that absolutely necessary to amend the Punjab Finance Ordinance, 1971 by section 7 of the Punjab Finance Act I of 1972. After coming into force of the Punjab Local Government Act XXXIV of 1975 and Local Government Ordinance, 1979, the legislature did not make any amendment which means that the legislature intentionally omitted to make any amendment as it wanted to give the power to levy tax to Local Councils. It was not a mere accidental or consequential failure to amend the law. The phrase "subject to any other law" means a law for the imposition of tax by local councils and not any other agency. The next submission of the learned counsel is that if the power to levy the tax is allowed to remain with the Government as well as the local councils, this will amount to double taxation which cannot be allowed. As to the permissibility of the double taxation the learned counsel has relied upon Maxwell on Interpretation of Statutes (Twelfth Edition) page 140 ; Statutory construction by Crawford para. 257 at page 506; (1953) l A E R 159, (1964) 2 A E R 691 and 1973 S C M R 445.

13. The last submission of the learned counsel is that no notice was given to the petitioners by the Government while declaring inter alia the town of Narang Mandi as a rating area which is against the rules of natural justice. In fact that the petitioners have been condemned unheard. The poor conditions prevailing within the town do not warrant any justification for the imposition of the property tax.

14. The learned Additional Advocate-General appearing on behalf of respondents 1 and 2, has submitted in reply that the local councils which once possessed the power to levy the property tax were debarred from so levying under the Punjab Finance Ordinance, 1971 and the Punjab Finance Act, 1972. According to the amended provisions of the West Pakistan Urban Immovable Property Tax Act, 1958, under the Punjab Finance Act, 1975, the Government out of the tax collected under the Act from within the limits of a Municipal Committee, a Town Committee or a Cantonment Board was after retaining 5 per cent thereof as collection charges to pay 85 per cent of the balance to such committees, so upto Punjab Finance Act, 1975 a particular state prevailed. The provision barring the levying of tax continues till today because that is alive and a valid piece of legislation. The omission of the legislature to mention the Punjab Local Government? of, 1975 or the Punjab Local Government Ordinance, 1979 in section 11 of the Punjab Finance Ordinance, 1971 by way of a consequential amendment after the enactment of the Punjab Local Government Act, 1975 or the Punjab Local Government Ordinance, 1979 would not have the effect of nullifying the provisions of section II of the Punjab Finance Ordinance, 1971, in order to give proper effect the Punjab Local Government Act, 1975 and the Ordinance VI of 1979 will be read in the Statute which otherwise includes such bodies as existing by that time. The intention of the legislature to continue the bar imposed upon the local councils through the Punjab Finance Ordinance, 1971 through subsequent enactments is clear from section 5 of the Punjab Finance- Act, 1975. Those are accidental omissions as not to carry the amendments to that effect. While construing the provisions of section 11, these bodies will be treated as the same bodies though coming into existence under the enactment in 1975 and 1979 because these are not new laws but are the enactments of the same subject. He has relied upon Lt: Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and another (P L D 1962 S C 335), wherein the learned Supreme Court while examining the Estate Duty Act (X) of 1950, noted down the omission of the legislature to make consequential amendments in section 57 of the Act which were rendered necessary by amendments of sections 58 and

59. The omission was recorded as accidental. The learned Court gave effect to' the manifest intention of the legislature by reading into section 57 the words "making up for the omission". . He has next submitted that the Local Government Act, 1975 and the Punjab Local Government Ordinance, 1979, would not have the effect of impliedly repealing the West Pakistan Urban Immovable Property Tax Act, 1958 vis-a-vis the levying of the property tax for the reasons that the Act V of j 958 is a special law dealing specifically and exclusively with the tax on the urban property. The Local Government Act and Ordinance, are a general law. He has referred to Maxwell on Interpretation of Statutes Eleventh Edition page 168 whereas it has been said that the general law gives way to the special law: The presumption is always against the implied repeal and the rule is that the latter Act will not repeal the earlier by implication which is an exception. He has referred to Maxwell on Interpretation of Statutes at page 162 where it is said that the "repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason." On page 160, it is laid down that generally when the latter enactment is worded in affirmative terms only, without any negative expressed or implied, it does not repeal the earlier law. It has been further submitted that in so far as the taxation is concerned there is no bar on the same item being taxed more than once. In the present case even if one Statute is not made subject to the other, both the Statutes can validly remain in force at the same time and the agencies authorised by both the Statutues will be within their jurisdiction separately to levy taxes under the respective Statutes, nevertheless for the convenience of the public the provincial legislature through the Punjab Finance Ordinance, 1970 as amended by the Finance Act, 1971. and as further qualified by the Punjab Finance Act, 1975, has declared that the tax on property shall be levied and collected by the Provincial Government under Act V of 1958 and that after the same has beers collected by the Provincial Government that shall be divided between the Provincial Government and the Local Councils concerned in the ratio prescribed by section 3-A of Act V of 1958 (added through Punjab Finance Ordinance, 1971) and as amended upto the Punjab Finance Act, 1975. In respect of the Finance Act, 1963 as to the levying of a Capital Gain Tax, the same reasoning has been employed so as to say that it is a special law as against the Punjab Local Government Ordinance, 1979 which is a general law and as such must give way. According to the learned Additional Advocate-General the writ petitions disclose no cast, therefore, the same are liable to be dismissed.

15. Raja Muhammad Muzaffar, Advocate appearing on behalf of respondent No. 3 in Writ Petition No. 3193/82 has adopted the arguments advanced by the learned Additional Advocate-General and has in addition referred to Article 279 of the Constitution of the Islamic Republic of Pakistan, 1973 which says that notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencing day shall continue to be levied until they are varied or abolished by Act of the appropriate legislature.

16. Before the contentions of both the learned counsel are examined a reference to the state of law and its development as to the levying of property tai is most called for. ?Act V of 1958 West Pakistan -Urban Immovable Property Tax Act, 1958 was enacted with a view to consolidating the law relating to the levy of tax on urban immovable property in the Province of West Pakistan. Under section 3, the Provincial Government was empowered to specify urban areas through a notification where the tax was to be levied under the Act, chargable according to the scale set therein. Under section 60 read with Schedule V of the Basic Democracies Order, 1959, the local councils were empowered to levy all or any of the taxes, rates, tolls and fees mentioned in the fifth schedule, with the previous sanction of the Government and the Commissioner as the case was to be. The schedule included the subject of property tax. According to the Municipal Administration Ordinance, 1960 (under section 33) a municipal committee with the previous sanction of the Government was empowered to levy all or any of the taxes, rates, tolls and fees mentioned in the third schedule. The schedule included the subject of property tax. Under section 11 of the Punjab Finance Ordinance (XI) of 1971 the powers to levy the tax on buildings and lands by the municipal committees and the town committees were taken away which section enacted : "Notwithstanding anything to the contrary contained in the Municipal Administration Ordinance, 1960, or the Basic Democracies Order, 1959, or the rules made thereunder, no tax on any building or land situated within the limits of a Municipal Committee or a Town Committee shall be charged, levied or collected by such Municipal Committee or Town Committee, as the case may, with effect from 1st of July, 1971 . . . . . By section 12 an amendment in the West Pakistan Urban Immovable Property Tax Act, 1958, in its application to the Province of the Punjab, was made in section 3 for subsections (2) and (3) as to the scale and the remission thereof, charging or levying the tax. Section 3-A a new section was added to the above-said Act wherein it was expressed that "out of the tax collected under the Act from within the limits of a municipal committee or a town committee the Government shall after retaining five per cent thereof as collection charges, pay 40 per cent, of the balance to such municipal committee or town committee, as the case may be." Under section 132 of the Punjab Peoples Local Government Ordinance (Vill) of 1972 published on 12th April, 1972, the power as to the taxation as mentioned in the third schedule was again given to the local councils but the power so given was expressed as "subject to the provision of any other law for the time being in force". By section 7 of the Punjab Finance Act.(I) of 1972 published on 29th June, 1972, section 11 of the Punjab Finance Ordinance, 1971 was amended and the substituted provision thereof was : "

11. No levying of tax on buildings and lands by local bodies.-Notwithstanding anything to the contrary contained in the Municipal Administration Ordinance, 1960, the Basic Democracies Order, 1959, or the Punjab Peoples' Local Government Ordinance, 1972, or any rule made thereunder, as from 1st of July, 1971, no local body shall levy, charge or collect tax on any building or land situated in any urban area in respect of which a notification has been made under subsection (I) of section 3 of the West Pakistan Urban Immovable Property Tax Act, 1958????????? By section 8 .of the Punjab Finance Act, West .Pakistan Urban Immovable Property Tax Act, 1958, in its application to the Province of the Punjab, section 3 of the Act was amended and also section 3-A. Under the amended section 3-A out of the tax collected by the Government within the limits of a local body after deducting five per cent thereof as collection charges 40 per cent of the balance was payable to such a body. Under section 138 of the Punjab Local Government Act (XXXIV) of 1975, published on 3rd April, 1975, a local counsel was again empowered to levy all or any of the taxes as enumerated in the second schedule. This section is reproduced here : "

138. Taxes to be levied.-A Local Council subject to the provision of any other law may, and if directed by the Government, shall levy all or any of the taxes enumerated in the Second Schedule." The section 233 of the Punjab Local Government Act, 1975, repealed, inter alia, Basic Democracies Order, 1959, Municipal Administration Ordinance, 1960 and the Punjab Local Government Ordinance, 1972. The schedule included the tax on annual rental value on buildings and lands and on the transfer of immovable property. By section 5 of the Punjab Finance Act (XL) of 1975 published on 28th June, 1975, section 3 of the West Pakistan Urban Immovable Property Tax Act, 1958, was amended. The substitute thereof reads as : "3-A. Out of the tax collected under the Act from within the limits of a Municipal Committee, a Town Committee or a Cantonment Board, the Government shall after retaining 5 % thereof as collection charges, pay 85 0 of the balance to such Municipal Committee, Town Committee or Cantonment Board, as the case may be."

17. Act IX of 1963 (West Pakistan Finance Act, 1963) was enacted to continue, levy or abolish certain taxes and duties in the West Pakistan. Section 16 of it reads as "(1) A capital gains tax shall be levied on any profits or gains arising from the sale, exchange or transfer of immovable property effected after the 30th day of June, 1963, within urban areas specified by Government under section 3 of the West Pakistan Urban Immovable Property Tax Act, 1958 (West Pakistan Act No. V of 1958)...... Then there are West Pakistan Capital Gains Tax Rules, 1964 framed under the Act of 1963.

18. The Punjab Local Government Ordinance, 1979 by virtue of section 137 empowers a local council subject to the provision of any other law to levy all or any of the taxes enumerated in the Second Schedule. This section as already expressed runs as : ":. local council subject to the provisions of any other law may, and if directed by Government, shall levy all or any of the taxes enumerated in the second schedule." The Second Schedule does include the tax on annual rental value of buildings and lands and on the transfer of immovable property. By section 182, this Ordinance repeals the Punjab Local Government Act, 1975.

19. The learned counsel for the petitioners have mainly taken up their position on the force of the above-said provision of the Punjab Local Government Ordinance, 1979, so this provision calls for construction or interpretation so as to see that whether it vests any local body to levy the relevant taxes to the derrogation of any other law. The rule for guidance can be sought from Sussex Peerage case (8 E R 1057.(H L)) wherein Tindal, C. J. observed : "The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the Statute are in themselve precise and unambiguous, then no more can be necessary than to expound these words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention B of the law-giver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe mean of collecting the intention, to call in aid the ground and cause of making the statute, and have recourse to???? the preamble, which according to Chief Justice DYer Stowel v. Lord Zouch Plowden, 369, is "a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress." A plain reading of the above-quoted provision shows that an absolute power to levy the taxes has not been vested in a local council, the power given has been expressed as subject to the provisions of any other law. The provisions of any other law as used within the context necessarily means the provisions of any other law dealing with taxation. There is no substance in the arguments of the learned counsel for the petitioners in view of the above-said language of the provisions that only a local council is competent to levy taxes and not the Provincial Government under the West Pakistan Urban Immovable Property Tax Act, 1958 and section 16 of the West Pakistan Finance Act, 1963 read with the West. Pakistan Capital Gains 'fax Rules, 1964 and both the Acts cannot co-exist with that of the Ordinance of 1979 because of the inconsistency so the Ordinance impliedly repeals Act V of 1958 and section 16 of the West Pakistan Finance Act and the rules framed in 1964 in that behalf. Had the powers as to taxation been expressed as not subject to any other law then one might have considered the question of repeal keeping in view section 4 of the Punjab Local Government Ordinance, 1979 which enacts that the provision of this Ordinance shall take effect notwithstanding anything inconsistent therewith contained in any other law, on the construction that the power as to the levy of taxes absolutely vested in a local body in an absolute term. Since the provisions of the said Ordinance are not on such a pass, therefore, no idea as to the implied repeal can be entertained. It is simply a case where power to levy tax has been given to a local body provided the field is not occupied by any other such law. It will simply mean that if some other law as to taxation, the. existence of which has been admitted, is validly in operation, then no space is left for a local body to exercise its power. Whenever a power is made subject to any other law then the power so given remains subsidiary rather than a primary one.

20. Now to see that whether there was any intention on the part of the legislature to remove the Act V of 1958 from the Statute Book, the position worth examining is that of the provisions of the Punjab Local Government Act, 1975. Similar provisions as quoted above existed at that time where the power to levy the tax was made subject to any other law. Despite that later in time section 5 of the Punjab Finance Act, 1975 as quoted above indicated that the West Pakistan ' Urban Immovable Property Tax Act, 1958 was very well alive and under the amended section 3-A of Act V of 1958 out of the taxes collected by the Provincial Government a local body was entitled to be paid 85 per cent of the balance after deducting the charges of 5 % as collection charges. If this happened to be the position in 1975 then the Punjab Local Government Ordinance, 1979 does not improve upon it because of the similarity of the provisions. On the other hand there is also no substance in the argument advanced by the learned Additional Advocate-General that the bar as to the levying of taxation continues till today despite the omission of the legislature to mention the Punjab Local Government Act, 1975 or the Punjab Local Government .Ordinance, 1979 in section 11 of the Punjab Finance Ordinance, 1971 by way of a consequential amendment. There is no omission to indicate that way. Whatever the 1Bgislature has done is deliberate. The legislature has in its wisdom this time or in 1975 has not extended the law taking away the power to levy tax on the buildings and lands since it has intended as is obvious from the provisions of law to give power of taxation also to a local body though subject to any other law, So coming to the question in issue the position which obtains is that the power to levy the property tax and capital gains tax arising out of the transfer of the property exists under the West Pakistan Urban Immovable Property Tax Act, 1958 and section 16 of the West'. Pakistan Finance Act and the Rule of 1964 made thereunder in that behalf as well as under the Punjab Local Government Ordinance, 1979 but the difference is that power under section 137 of the Ordinance, 1979 is restricted one, meaning thereby that if the levying of the taxes is proceeded with under section 3 of Act V of 1958 and section 16 of the West Pakistan Finance Act, 1963 and the Capita Gains Tax Rules, 1964, then a local body is to stay its hand being with a power subject to any other law and if the levying of the property tax is not conducted under the Act V of 1958 and the West Pakistan Finance Act, 1963, then a local body is free to proceed with the taxation in the terms of section 137 of the Ordinance, therefore, it cannot be maintained that respondent No. 1 is not competent to issue notification specifying the Urban Areas where. the tax is to be levied under Act V of 1958 or the Finance Act, 1963 and the consequential demand notices for the payment of the tax or enhancement and notices for filing the returns, because of the power vesting in a local body.

21. As to the specific point raised by Mr. Saeed Akhtar, Advocate that before declaring, inter alia, Narang Mandi as the rating area, no notice was given to the petitioners, a perusal of Annexure `B' in Writ Petition No. 4007/82 shows that the Government had observed the statutory requirement of survey and calling for the objections against the proposed assessment and the tax in .hat rating area alongwith nine other new rating areas was to be levied from the 1st of July, 1981. However, this being a question of fact cannot be gone into within the scope of the Constitutional jurisdiction of this Court.

22. For the foregoing reasons, all the writ petitions are dismissed. However, in the circumstances of the case, there is no order as to costs. M. z. ht.????????? Petition dismissed.