P L D 1967 Lahore 210 (PLP)

The petitioner is a claimant, displaced person and was successful in securing the transfer of House No. J/260, Murree Road, Rawalpindi , on evolution basis under Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The annual rental value of the house in question was Rs. 1,500 per annum according to the assessment record of the Excise and Taxation Department for the year 1946 and at the time when the house was allotted to the petitioner after Independence the above‑mentioned valuation was in force.

2. It appears that sometimes before the 31st of March 1952, the petitioner approached the Excise and Taxation Department with an objection petition about the assessment of property in his possession and was successful in obtaining the following order on the 28th of February 1952:‑ "Present Khan Salah‑ud‑Din Khan. I have heard the objector at length. It is necessary that the entire unit should be assessed in the light of the present circumstances. In view of the locality, the accommodation, the portion occupied by the objector is assessed at Rs. 600 per annum and that of Syed Anis at Rs. 360 per annum. The total gross annual rent is reduced from Rs. 1,500 to Rs.

960. Amend the records. Announced, (Sd.) C. O. Brian 28‑2‑1952. Assessing Authority, Rawalpindi,"

3. After having procured the above order from the Assessing Authority, the petitioner approached the Deputy Rehabilitation Commissioner, Rawalpindi, for the reduction of the rent in proportion to the reduction which was ordered by the Assessing Authority. The Deputy Rehabilitation Commissioner passed an order on the application of the petitioner. The relevant portion of this order is as given below:‑ "The rent of his portion was assessed at Rs. 90 which has been reduced to Rs. 50 now by the Excise and Taxation Department. The Ward Officer recommends that the order pertaining to acceptance of revised rent should have retros pective effect as the position of the house was. same in 1949, as it is now. Accepting his view I direct that in the interest of refugee occupant and the fact that he has been actually pointing out about the enhanced rent of the premises, the refit should be charged at the revised rate from the date of his occupation."

4. Armed with the above‑mentioned two orders, one passed by the Assessing Authority and the other by the Deputy Rehabilitation Commissioner, Rawalpindi, the petitioner continued to live in the house in question. However, when the Settlement operation commenced, he filed his CH‑ Form for the transfer of this property. In column 12 of the CH Form he made a mention of this fact `that the rent of the house was Rs. 1,500 per annum in 1946 but as this rent appeared to be excessive in view of the accommodation and condition of similar buildings in the same locality, he had obtained the reduction of its annual rental value from the authority concerned. In these circumstances a prayer was incorporated in column 12 of the form C. H. that the reduced rent should be made the basis of the evaluation of the house at the time of the transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

5. It seems that the request of the petitioner for the assessment of the house at the reduced annual value was not given any weight by the Settlement Authority and the relevant appendices were prepared at the annual value of Rs. 1,500 per annum according to the assessment of 1946. The petitioner, to the first instance, made an application to the Excise and Taxation Officer, Rawalpindi, and made the following request:‑ "A certificate may please be granted to me to the effect that the order dated 28‑2‑1952 mentioned in paragraph (3) above, ought to have been incorporated in 1946 rent assessment and original entry should have been substituted by the order mentioned in para. (3) above, whereby the 1946 assessment of House No. J/260 should be read to be Rs. 864 per annum." The Excise and Taxation Officer without applying his mind to the law on the subject and without giving any notice to the Rehabilitation or Settlement Authorities returned the application in original to the petitioner with the following endorsement:‑ "The assessment of 1946 remained in force and effective up to 31‑3‑1952. Under rules any amendment made in the assessment by the competent authority before 31‑3‑1952 substituted the previous assessment and the orders of assessment so passed in respect of this case on 28‑2‑1952 is deemed to be the assessment of 1946. (Seal of the department). (Sd.) .. Excise and Taxation Officer, Rawalpindi 11‑4‑1961." Having obtained the above order from the Excise and Taxation Officer,‑ the petitioner approached the Chief Settlement and Rehabilitation Commissioner, Pakistan, for the correction in the evaluation price of his house according to the amended evaluation of 28‑2‑1952 but the Chief Settlement and Rehabili tation Commissioner rejected his petition on the 7th of November 1952 with the following order: "According to law, assessment for the year 1946 is the basis of determining the price of a property. The price of the house in question has, therefore, been correctly worked out @ Rs. 1,500 P. A. which, is the assessment for the year 1946 in the record of the Excise and Taxation Department."

5. The petitioner has come to this Court under Article 98 of the Constitution of Islamic Republic of Pakistan against the above order of the Chief Settlement Commissioner and prays that the above order should be declared as being without lawful authority and a direction be given to the respondent to treat the annual value of the said house at Rs. 960 per annum according to the amended assessment of 28th of February 1952 and that the price of the house should be charged from him accordingly.

6. It will be useful at this stage to reproduce the relevant provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, about the transfer price on evaluation basis on which a person, in occupation, can ask for its transfer. The relevant provisions are as under: "2 (9) "price determined on evaluation basis" means (a) in the case of a house or shop . situated within the limits of a cantonment, or constructed on land which is not evacuee property an amount equal to twenty‑five times the gross annual rent of the house or shop, as the case may be, prevailing in 1946; and (b) in any other case, an amount equal to forty times such rent;" Learned counsel appearing in support of the petition has very candidly conceded that according to the above definition of "evaluation price" if Rs. 1,500 per annum, the original annual rental value of the house, is to be taken into consideration then the department has correctly worked out the price of the petitioner's house but . he maintains that on 28th of February 1952, the assessment of 1946 was in force and on that date the petitioner was successful in obtaining the reduction of the annual valuation of the house from Rs. 1,500 to Rs. 960 according to the orders of the Assessing Authority, Rawalpindi, therefore, this amended valuation should form the basis to work out the price formula as laid down under section 2 (9) of the Act, referred to above.

7. In support of the above contention, the learned counsel has drawn my attention to section 7 of the Punjab Urban Immov able Property Tax Act, 1940, and stated that valuation list has to be made by the prescribed Assessing Authority in accordance with the rules framed under the Act for every rating area so as to come into force either on the 1st day of April or the 1st day of October of the year in which it is made and the new valuation list is made from time to time so as the interval between the dates of which one valuation list and the next succeeding valuation list are prepared and come into force is a period of five years. From this provision of law the learned counsel wants me to hold that the assessment of 1946 was in force up to the 31st of March 1952 and the amended valuation list of 28th of February 1952, is in fact the assessment list of 1946. So far as the powers of making amendment to the valuation list by the Assessing Authority is concerned, the learned counsel referred me to section 9 of the Punjab Urban Immovable Property Tax Act, 1940. This section authorises the Assessing Authority to make amendment in the valuation list as appears to be necessary in order to maintain the list in accordance with the existing circumstances. It was contended that this power was exercised in favour of the petitioner by the Assessing Authority, who corrected the assessment list of 1946 by reducing the annual value from Rs. 1,500 to Rs. 960 on the' 28th of February 1952. In these circumstances it was ,urged that the amended valuation was not a new assessment but the correction of the old assessment and had retrospective effect from 1946. In support of his contention reliance was also placed upon the order of the Excise and Taxation Officer, Rawalpindi, which was obtained by the petitioner on‑ his application on the 10th of October 1960 (Annexure E) with the endorsement dated 11th April 1961, thereon.

8. For .the proper appreciation of the contentions raised on behalf of the petitioner it will be useful to reproduce the relevant provisions of the Punjab Urban Immovable Property Tax Act, 1940. Section 7 reads as under: "

7. Making and operation of valuation lists.‑(1) A valuation list shall be made by the prescribed authority in accordance with the rule framed under this Act for every rating area so as to come into force either on the first day of April or the first day of October and thereafter new valuation lists shall be made from time to time so that the interval between the dates on which one valuation list and the next succeeding valuation list respectively come into force shall be a period of five years: Provided that the Provincial Government may by order (a) extend or reduce by six months or one year the interval which would otherwise elapse between the coming into force of any two successive valuation lists for any relating area, or when a valuation list has been lost or destroyed by operation of circumstances beyond control, cancel the list, direct preparation of a new list and order recovery of pending tax to be made on the basis either of the last preceding list or of the new list prepared under this proviso; and (b) divide any rating area into parts' for the purposes of a new valuation list and determine the years in which the next following valuation list for each of such parts respectively shall be made and come into force. (2) Subject to the provisions of any such order as aforesaid, every valuation list shall come into force on the first day of April or the first day of October as the case may be, next following the date on which it is finally approved by the assessing authority and shall, subject to the provisions of this Act and the rules made thereunder (including the provisions with respect to the alteration of and the making of additions to the valuation list), remain in force until it is superseded by a new valuation list." The power of the amendment of the valuation list under section 9 of the same Act is as follows:‑ "

9. Amendment of current valuation list.‑Subject to such rules, if any, as the Provincial Government may think fit to make in this behalf, the assessing authority may at any time make such amendments in a valuation list as appear to it necessary in order to being the list into accord with existing circumstances, and in particular may‑ (a) correct any clerical or arithmetical error in the list; (b) correct any erroneous insertions or omissions or any misdescriptions; (c) make such additions to or corrections in the list .as appear to the authority to be necessary by reason of (i) a new building being errected after the completion of the valuation list ; (ii) a building included in the valuation list being destroyed or substantially damaged or altered since its value was last previously determined; (iii) any change in the ownership of any building or land; Provided that not less than fourteen days before making under the foregoing provisions any amendment in the valuation list for the time being in force other than the correction of a clerical or arithmetical error, or the correction of an erroneous insertion omission or misdescription, the assessing authority shall send notice of the proposed amendment to the owner of the building or land and shall also consider any objection thereto which may be made by him."

9. A close scrutiny of the provisions of section 9 read with' section 7 of the Act makes it abundantly clear that power of correction and amendment of valuation list barring clerical or arithmetical errors is very limited. In cases where interest of an owner is likely to be affected it is obligatory upon the Assessing Authority to send notice of the proposed amendment to the owner of the building or land and then consider the objections of the owner if any to the proposed amendment. I have reproduced the order of the Assessing Authority dated the 28th of February 1952, in extenso with an object 'to show that even if I were to accept the contention of the learned counsel that the amendment made in the valuation list on the 28th of February 1952, is the assessment of 1946 then it is obvious that this amendment to the list was made by the Assessing Authority in a summary manner without complying with the provision of section 9 reproduced above. Admittedly the amendment to the valuation list was made on the application of the petitioner who was the allottee of the house and 'the rental value was reduced without notice to the owner who by that time had become evacuee. Learned counsel for the petitioner was not able to prove from this record that a notice as required under proviso to section 9 was served either upon the owners of the house or upon the Custodian of evacuee property in whom the property was vesting after the 15th of March 1947.

10. Learned counsel for the petitioner submitted that the provisions of the Administration of Evacuee Property Ordinance, XV of 1949 was not a bar for the Assessing Authority to proceed with the correction of the valuation lists. According to section 9 of the Punjab Urban Immovable Property Tax Act, 1940, the Assessing Authority was, within its competence to make necessary amendment but I regret I am not prepared to accept this contention of the learned counsel. The Administration of Evacuee Property Ordinance XV of 1949 came into force on 15th of October 1949, with retrospective effect. According to section 4 of this Ordinance the provisions override all other laws. The assessment of the property tax to a house belonging to an evacuee involves a question relating to the right and interest of an evacuee and any amendment or correction to the valuation list of the evacuee property by the Assessing Authority could not be made without notice to the Custodian of Evacuee Property. The assessment of tax of an evacuee property directly involves the liability of the evacuee to pay tax to the Government and that liability could neither be increased nor decreased without complying with the ,provisions of the Ordinance XV of 1949. The provision of section 9 of the Punjab Urban immovable Property Tax Act, 1940, could not be invoked for the amendment and correction of valuation lists of evacuee property without a reference to the Custodian under section 341 of the Ordinance. The Punjab Urban Immovable Property Tax Act lays down a proper procedure for the amendment and correction of the existing valuation lists. The petitioner made an application for the reduction of the annual valuation of the house in question and, therefore, the Assessing Authority had started proceedings on that application which fall within the meaning of term "proceedings" under section 34 of the. Administration of Evacuee Property Ordinance XV of 1949; It will not be out of place to reproduce section 34 of the Ordinance at this stage. It reads as under:- "

34. Jurisdiction of Courts barred. (1) Save as expressly provided in this Ordinance, no civil or revenue Court (or any other authority) shall have jurisdiction‑ (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not an intending evacuee or whether any property is or is not evacuee property or what right or interest, if any, any evacuee has in any such property."

11. The Assessing Authority which purported to act on the application of the petitioner for the reduction of the annual value under Punjab Urban Immovable Property Tax Act, 1940, is such an authority as contemplated by section 34 quoted above. The proceedings which were commenced on the application of the petitioner were also such a proceedings as to fall within the purview of this provision of the law and any action taken by the Assessing Authority against the right or interest of the evacuee would be hit by the bar of the jurisdiction contained in this section.

12. In view of what I have said above I am of the opinion that on 28th of February 1952, when the Assessing Authority , amended the valuation list of the property in question and reduced it from Rs. 1,500 to Rs. 960 per annum they must have referred the question in the first instance to the Custodian of Evacuee Property under section 34 of Ordinance No. XV of 1949 and the amendment to the valuation list could have only been recorded after the approval of the Custodian. In these circumstances it is clear that the Assessing Authority while reducing the annual value of this property on the 28th of February 1952, did not only ignore the provisions relating to the notice to the owners of the property as required by proviso to section 9 of the Punjab Urban Immovable Tax Act, 1940, but they also trampled upon the mandatory provision of section 34 of the Administration of. Evacuee Property Ordinance, 1949, quoted above which overrides all other laws by virtue of section 4 ibid. The amended valuation being opposed both to the principles of natural justice as well as to the expressed provision of the law is not binding upon the Chief Settlement Commissioner and has rightly been ignored. The house in question carries an annual rental value of Rs. 1,500 and its price has been correctly worked out at the original assessment of Rs. 960 per annum and the amended assessment of 28th of February 19.52 is wholly illegal and inoperative.

13. Learned counsel .has also raised another objection and that is to the effect that the Rehabilitation Authorities had accepted the reduced rent of the house and, therefore, they should be stopped now from claiming from the petitioner the price of the house at Rs.. 1,500 according to the assessment of 1946. At the same time Major Ishaq Muhammad Khan, counsel for the respondent pointed out that the petitioner has obtained a permanent transfer deed in his favour on the 10th of August 1963 on the basis of the original assessment value of 1946 and the transaction was, therefore, past and closed and the petitioner now should be estopped from calling in question the original valuation of 1946 assessment. Since I have already held that the amended valuation list of 28th of February 1952 is illegal and inoperative I need not express any opinion on the question of estoppel which has been raised by both the parties. As a result of the above discussion I would dismiss the petition but would leave the parties to bear their own costs. K. M. A. Petition dismissed.