1999 PLP 132 (MLD)

This Constitutional petition has been filed to challenge order dated 3-9-1995 passed by respondent No.l whereby the appeals fled by the petitioner against the assessment and levy of tax were entrusted to the 4ddhional Deputy Commissioner (General) Lahore Cantt and the subsequent order dated 1-10-1995 whereby the review petition file by the petitioner was dismissed. 2. by virtue of provisions of section 84 of the Cantonment Act, 1924 an appeal against assessment or levy of or .refusal to refund any tax lies to the District Magistrate or an officer specially,, empowered by the,--Central Government in that-behalf. Section 84dis reproduced below for ready reference:- "

84. Appeals against assessment. '--(I) An appeal against the assessment or levy of, or against the refusal to refund, any tax under this Act shall lie to the District Magistrate or to such other officer as may be empowered by the (Central Government), in this behalf: . Provided that where the person to whom the appeal would ordinarily lie is, or was when the tax was imposed, a member of the Board, the ` appeal shall lie to the Commissioner of the Division, or in a Province of' where there ,are no Commissioners, to the District Judge. (2) If, on the hearing of an appeal under this section, any question as to the pliability to, or the principle of assessment of, a tax arises on which the officer hearing the appeal entertains reasonable doubt, he may either of his own motion or on the application of the appellant, draw up a statement of the acts of ,the case and: the point on which doubt is entertained, and refer the statement with .his own opinion on the point for the decision of the High Court.- (3) On a. reference being made under subsection (2) the subsequent proceedings in the case-shall be, as nearly as may be, in conformity with the rules relating to references to the High Court contained in XLV of the First Schedule -to the Code of Civil Procedure 1908. The petitioner preferred an' appeal-against- the assessment of tax before the District Magistrate; who vide lids order dated 3-9-1995 entrusted the same to the A.D.C.(G) Cantt Lahore, respondent No.4 and also dismissed the application for review vide firs order dated '1-10-1995.

3. Learned counsel for respondent-No.3 had submitted that only the District -Magistrate, ':Lahore, :respondent ,No. h was competent to hear the petitioner's appeal as no other person was, empowered by Central Government to do the needful. This appears to be plainly correct because an appeal against the assessment levy of or-refusal to refund any tax under the Act, lies to the District Magistrate or an officer specially empowered by the Central Government in that behalf. There is nothing to show that the A.D..C.(G) was empowered by the Central Government to hear the appeals. In his comments the District Magistrate has referred to Notification No SO (Jud1.II)2-11-95, dated 4-9-1995 and Notification No.SO (JudI.II) 2-11/95 dated 14-1-1996 (Annexure A and ' B') issued by the Government of Punjab whereby the AD.C.(G) was appointed to be the A.D.M. and invested with all power of a District Magistrate within the District of Lahore for a period of six months. This notification was issued under section 10(2) of the Code of Criminal Procedure. Obviously notification dated 14-9-1995 had no application in .the matter for more than one reason; first, the appeals were filed prior to the issuance of the notification which were entrusted to -the A.D.C.(G) vide order dated 3-9-1995 and thereat : r, the above referred notification was issued on 14-9-1995; second, it was issued under section 10(2) of the Cr.P.C. and had invested the A.D.C.(G) with power of District Magistrate available to him under the Code. It will be absurd to construe that on the basis of the said notification the Additional Deputy Commissioner (General) became specially. empowered to exercise the powers of a District Magistrate under. all laws. It is true that the subsequent notification dated 14-1-1996 says at the end that the Additional Deputy Commissioner (General) was entrusted with powers of a District Magistrate under the Criminal Procedure Code, and any other law for the time being in force but in my view this does not authorise A.D.C.(G) to exercise -powers under a General Law. Moreover, the Additional District Magistrate can have powers under other laws which are specified by the Provincial Government. It is evident from a reading of subsection (2) of section ,10 which is reproduced below for ready reference: "10(2). The Provincial Government may also appoint Additional District Magistrates to exercise jurisdiction in one or more districts, arid such Additional District Magistrates shall have all or any of the powers ,,of a District Magistrate under the Code or under any other law for the time being: in force, as the Provincial Government may direct." The words, "as the Provincial Government may direct" make it abundantly clear that powers under other laws for the time being in force had to be specified by the Provincial Government. Since the Provincial Gov eminent had not expressly mentioned the other other, laws in the above referred notification, the Additional District Magistrate was competent only an exercise the powers of District Magistrate under the Code of Criminal Procedure so far as the appeals against assessment etc. under the Cantonment Act, 1924 are concerned, the same can-be heard by the District Magistrate or an Officer specially empowered by the Central Government for the said purpose. The Provincial Government is not competent to investigate the A.D.C.(G)'or for that any other officer, with powers of the District Magistrate under the Act.

4. For the foregoing reasons, the petition is accepted and impugned orders dated 3-94995 and-1-10-1995 are declared to be without lawful-authority and of no legal affect. Resultantly, the District Magistrate, Lahore, respondent No.1 is directed to withdraw the petitioner's appeal from the Additional Deputy Commissioner (General) and decide the same on merits in accordance with the law after-giving an opportunity of being heard to the contesting parties. H.B.T./N-106/L Petition accepted.