P L D 2004 Lahore 80 (PLP)

This judgment shall decide Writ Petitions Nos. 201/97, 1707/98, 1522/98, 744/98, 3475/01, 3578/01, 52/02 and 1358/02 as common questions are involved.

2. The petitioners in all these cases own and operate hotels in the Islamabad Capital Territory. The writ petitions were filed to question the very imposition of property tax in the said Capital Territory by the respondent-C.D.A. and its recovery. It was further pleaded that the petitioners are liable to be charged as industrial concerns. All present state 'hat the said first matter of the imposition, levy and recovery of the property tax stands resolved by this Court as also by the Hon'bie Supreme Court of Pakistan inasmuch 'as the respondent-C.D.A. bias the requisite authority to impose and recover the said tax. The only question now required to be decided is as to at what rate the petitioners are liable to be charged. Both the parties have placed on record various instruments and statutes that were made or enacted by the Federal Government as also the respondent-C.D.A. in this behalf. A perusal of the same would reveal that the properties were categorized as follows for purposes of levy of the said property tax as per Rules prescribed for each category. These are:

(i) Industrial/Institution. (ii) Residential Plots. (iii) Commercial Plots. (iv) Petrol Pump.

3. The learned counsel appearing for the petitioners in these cases rely upon an Office Memorandum dated 22-7-1990 or Government of Pakistan in the Ministry of Industries and Production (Industries Wing) whereby the Tourism has been declared to be an Industry and consequently the Hotels/Motels/Restaurants which promoted the tourism may be treated as industrial concerns/units. They also rely upon a letter dated 22-9-1990 issued by WAPDA, Lahore, informing a Section Officer in-the Ministry of Water and Power, Government of Pakistan, that the hotels/lodes and restaurants are charged on Tariff A-2. However. supply to three phase 400 volts compressors and pump motors of air-conditioning equipments installed in the centrally air-conditioned premises and other three phase 400 volts apparatus of general utility in the premises are governed by appropriate industrial tariffs. They also referred to the Notification No. 1 178(1)/94, dated 5-12-1994 issued by the Ministry of Petroleum and Natural Resources whereby hotel industry has been included under the heading "Industrial Consumers". Reference is also made to C.D.A. Notification dated 28-6-1995 classifying the Residential, Non-residential and further Commercial and Industrial Categories of, properties as also Petrol Pumps. The contention is that commercial properties located in the specified areas are to be charged on the said rate whereas the Industrial/Institutions are to be charged separately. The case of the petitioner in. Writ Petition No.201 of 1997 is that it is not located in any of the areas mentioned under the heading "Commercial". Another' Office Memorandum dated 22-7-1996 of the Ministry of Industries and Production with reference to Office Memorandum dated 20-5-1996 of the Sports and Tourism Division has been relied whereby the Hotels, etc. which promote the tourism may be treated as industrial concerns/units. Minutes of a meeting dated 31-5-2002 and also a reference made by the Ministry of Industries and Production vide Office Memorandum dated 20-I-2003 for considering and settling the issue have also been referred.

4. Learned counsel for the C.D.A.-respondent, on the other hand contends that vide Notification No.783(1)/2003 dated 9-8-2003 non residential properties outside commercial areas have been included in the heading "Commercial" in the Notification No.24(1)/2001 dated I I-I-2001. According to him the C.D.A. has not agreed to the declaration of the Hotels as an Industry for the purpose of imposition of the property tax Fully levied by it. According to the learned counsel, the classification of the plots has-been indicated in the Islamabad Land Disposal Regulations, 1993 framed in exercise of the powers conferred under section 51 and section 49 of the C.D.A., Ordinance, 1960. According to Regulation No.3 D Commercial and Business plots include plots located in commercial areas meant for use inter alia, as hotels or motels. Similarly Industrial Plots have been defined in Regulation No.3(5) and according to the learned counsel the petitioners do not fall in the said category.

5. I have given some thought to the respective contentions of the learned counsel in the light of the said submissions made by them. Now the term "Industrial" or "Institution" or for that matter "Commercial" has not been defined as such in the rules framed by the Federal Government for the imposition of the said tax and recovery thereof or for that matter in statutory regulatory orders issued from time to time. Now the several Office Memorandums or Notifications being relied upon by the petitioners would show that the concerned Authorities like WAPDA or Ministry of Oil and Gas or the Ministry of Tourism or the Ministry of Industries have included the Hotels and the allied business like restaurants or motels in the term "Industries" for the application of the relevant laws. It need not be stated that it is by: an extension of a term that the inclusion clause is effected. Now the effect of the said Office Memorandum. and Notification is that the Hotels stand-included in the "Industry" as defined in the laws governing the tariffs of WAPDA or Sui Southern or Northern Gas Pipelines Limited or the application of the Customs Law. It is but evident that till such time that a statutory enactment including the Hotels located in Islamabad Capital Territory in the term "Industry" or "Industrial" or "Institution" is not made by the Competent Authority, the petitioner cannot as of right claim to be charged as an Industrial concern, vis- -vis the said property tax just by reference to the action taken by the said other authorities vis-a-vis the application of the- applicable laws or statutory rules in the matter of applicable tariff. All the writ petitions are accordingly dismissed. No orders as to costs. H.B.T./H-185/L Petitions dismissed.