2009 PLP 72 (CLC)

MUZAFFAR ALI, J.

This writ petition has been filed to call into question the vires of notification No.RC-Notificaiton-5/2001, dated 31-5-2001, issued by Government of Pakistan Home, S&GAD and Law Department Northern Areas with the signature of Mr. Nisar Ahmed, Assistant Legal Advisor, whereby 2.5% development charges in addition to the registration fee has been imposed on transfer of immovable property on the basis of gift deeds, the petitioners assailed, the notification with the contention that, the same is ultra vires, ab initio void, mala fide and against the fundamental rights of petitioners as such liable to be set aside. This Court after taking cognizance of the writ, issued pre-admission notice to the respondents to enable the respondents to attend the Court and to properly defend the vires of notification, as same was challenged by some well-reputed professional and practising advocates. Several adjournments were granted by this Court with directions to the respondents through learned Advocate-General and at one time through Assistant Commissioner, when he attend the Court on a date, to produce the relevant documents and rules under which, the notification was issued, but the respondents failed to produce such rules or documents, which might enable them to defend the vires of the notification however, the respondents submitted their written comments through learned Advocate-General with the contention that (a) the 2.5% registration fee is being deposited in the Government Treasury as revenue, which goes to the Federal Revenue, while 2.5% development charges are being collected by Revenue Officers and are being utilized by Municipal Committee on developments and cleanliness of concerned Municipal Areas for betterment of public-at-large. (b) That the notification has been issued under section 53(3) Serial No.4 of schedule VI of the Northern Areas Local Government Order, 1979 and no fundamental rights of petitioners have been infringed. We heard the learned counsel for the petitioners and the Assistant Advocate-General for the respondents and with their able assistance, probed into the matter to determine the crucial legal issues involved in the case and the 1st issue before us is that, whether the impugned notification is validly notified in the eyes of law and in this regard we are guided by the august Supreme Court of Pakistan through PLD 1978 SC page 193, wherein their Lordships have defined the word "notification" shall mean a notification published under proper authority in the official gazette" This definition clears one's mind that for a valid notification two points are essential:

(1) The notification must be under proper authority: meaning thereby is that the authority issuing the notification must have powers to issue the notification under any Act Ordinance, Regulation Rule, Order or by law within the meaning of section 3(37b) of General Clauses Act, 1897. Publication in official Gazette. (2) That the notification must be published in the official gazette. Keeping in view the above context, if we look into the impugned notification it lacks both the ingredients for the reasons (a) that in Para.2 of the written comments, the respondents have taken plea that, the notification has been issued under section 53(3) serial No.4 of schedule VI of the Northern Areas Local Government Order, 1979. So we went through the provision to ascertain whether the same empowers either Home Department N.As. or Law Department N.As. to issue the impugned notification and found therein that both the Departments stand nowhere in the provision, the provision 53 of the Northern Areas Local Government Order, 1979, empowers a Local Council to levy in. the prescribed manner all or any of the taxes etc. mentioned in the sixth schedule subject to the prior sanction of the Government. But at the same time subsection (3) of the provision 53 of the order prevents the council from levying any tax etc. when such council is financed by the Government, hence the plea taken by the respondents is ironical one and it transpires that the notification has not been issued by the proper authority, therefore, the same is void ab initio and mala fide (b), that the impugned notification has been issued with the ambiguous words that "The competent authority has been pleased to order" while categorical instruction have been issued by the Cabinet Division Islamabad to all the Departments and autonomous bodies etc. with the prior approval of the Prime Minister of Pakistan through letter No.36/Cab/2002 dated 26-11-2002, directing all to discontinue the use of word "competent authority" and to specify the authority passing the order, notification etc. the instructions are reproduced hereinunder:-- "The Prime Minister has directed that the words "competent authority" frequently used in official notifications and correspondence should be discontinued with immediate effect. Use of term "competent authority" creates ambiguity and uncertainty. The authority passing the order should be clearly specified in notification/orders/correspondence wherever such reference is required." In terms of the above instructions the authority passing the impugned notification is unspecified as such, the validity of the same is questionable. (c) When the learned Assistant Advocate-General was confronted to the point that whether the impugned notification has been published in the official Gazette, the answer was not satisfactory, hence the impugned notification is void and without jurisdiction. Last but not the least, aspect of the writ petition is that whether the impugned notification has infringed any fundamental right of the petitioners or public-at-large and to determine this point we have gone through "the Northern Areas Governance Order, 1994 (Amended upto 15th December, 2007) which is the basic legal document having force of constitution for Northern Areas (hereinafter called the Order) has recognized the fundamental rights of people of Northern Areas under its Article 19-A which is reproduced as under:-- "19-A Fundamental Rights. (1) The people of Northern Areas shall have the Fundamental Rights specified in Chapter 1 of Part-II of the Constitution of the Islamic Republic of Pakistan. And in Chapter 1 of Part-II of the Constitution of the Islamic Republic of Pakistan, the right of a citizen of Pakistan as to property has been recognized as fundamental right. The relevant provision is reproduced as under:

23. Provision as to property.

Every citizen shall have the right to acquire hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restriction imposed by law in the public interest." The perusal of the relevant provision of the order and the Constitution of Islamic Republic of Pakistan, it transpires that the right to property of a citizen comes within the ambit of fundamental rights and no tax or any other impediment may be imposed on it except through due course of law, rules and regulations and by the authority competent to levy the tax etc. Since the impugned notification has been proved to be void and without lawful authority, as discussed above, hence the same is in deviation of fundamental rights of the petitioners as well as the public-at-large. The upshot of the above discussion is that the notification is set aside, declaring the same void ab initio, ultra vires and against the fundamental rights of petitioners and public-at-large and this judgment would have effect as judgment in rem. File. H.B.T./17/Glt. Petition allowed.