2006 PLP 1599 (SCMR)

RAJA FAYYAZ AHMED, J.

Leave to appeal has been sought for in these two petitions by the petitioner (Additional Executive Officer, Cantt. Board, Walton Cantt., Lahore) against a common judgment dated 2-6-2003 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Writ Petitions Nos.7559 of 2000 and 18615 of 2001 respectively filed by the private respondents were allowed, proposed to be disposed of by this single judgment. C.P. No.2300-L of 2003

2. Briefly the stated facts of this case are that respondents Nos.1 and 2 (Mrs. Nargis Moeen and Zubair Moeen) purchased Property bearing No. 158-Y (Commercial), Phase-III, Lahore Cantt. (Lahore Cooperative Housing Society, Lahore, hereinafter referred to as "the Society"), in the month of January, 1997 from its previous owners Mrs. Raheela Masood and Muhammad Ishaq Dar in respect whereof approval was accorded by the Managing Committee of the said Society in its meeting held on 30-11-1996. Thereafter, the said respondents being the transferees of the property applied to the Cantonment Board for transfer of the same in their names. The concerned officer of the Board refused to give effect to the said transfer in the Board record; until and unless the respondents had paid 3% tax on the immovable, property as levied through Notification No.382(I)/94, dated 14-5-1994 issued by the Government of Pakistan, Ministry of Defence in exercise of powers conferred by section 60 of the Cantonments Act, 1924, in supersession of Notification No.398(I)/81, dated 30-4-1981 with the previous sanction of the Government whereby tax on the transfer of immovable property (Lands and Buildings) situated within the limits of Lahore Cantonment at the rate of 3% of the consideration money of such property as recorded in the sale-deed or as assessed by the Cantonment Executive Officer for the purpose of assessment of tax as market value of the property, whichever is higher; before the registration of sale-deed under Registration Act, 1908 or being acceptance of transfer by the Society or any other Society registered under Cooperative Housing Society Act, 1925 be payable by the transferees.

3. The respondents challenged the vires of above Notification on refusal of the Board to give effect of the abovesaid transfer in the names of writ petitioners in its record, mainly; on the ground that by virtue of Notification mentioned above Board has the power to impose the prescribed tax on the transfer of immovable property in any Cantonment provided the same is leviable in the municipality in the Province where such Cantonment is situated, although; the record of the Cantonment Board primarily is to be maintained for the purpose of collection of Cantonment House Tax. C.P. No.2301-L of 2001

4. The brief facts of this case are that respondent No.1 namely, Mrs. Samina Naz Farooq purchased Plot No.00361, Block "Q", Phase-II situated in the Society from its previous owner/allottee namely Mrs. Ambreen Farooq wd/o Flt. Lt. Haroon Rashid on 16-4-2001 in respect whereof and to give effect to such transfer, approval was accorded by the Managing Committee of the Society in its meeting held on 22-5-2001, communicated to the vendee vide letter dated 26-5-2001. Thereafter, respondent No.1 applied to the Cantonment Board for transfer of the same in her name but the concerned officer of the Board refused to give effect to such transfer in the Board Record unless and until she had paid 3% tax on the immovable property as levied through the above referred Notification, dated 14-5-1994. She challenged the vires of the above Notification and the refusal of the Board, inter alia, on the grounds as taken in Writ Petition No.7559 of 2000.

5. The learned Advocate Supreme Court for the petitioners in both these petitions and Mr. Naeem Sadiq, the learned Advocate Supreme Court for the private respondents (in C. P. No.2300-L of 2003) have been heard at some length. Mr. Muhammad Rashid Ahmed, the learned Advocate Supreme Court for the petitioner has contended that the powers vested in local council by section 137 of the Punjab Local Government Ordinance, 1979 was never withdrawn through the subsequent amendment made by virtue of Ordinance No.XLIX of 1999 whereby entries as contained at Serial No.1 of Part-II and Entry No.5 of Part-III of the Second Schedule to the Punjab Local Government Ordinance, 1979 were deleted hence; the Cantonment Board competently in view of the Notification dated 14-5-1994 refused to record transfer of the property in question in favour of the writ petitioners unless 3% prescribed tax as envisaged by the said Notification was paid by the transferees and secondly as no relative amendment was made in section 60 of the Cantonments Act, 1924, therefore, implementation and execution of the terms of the said Notification could not have been legitimately questioned to demand and recover 3% tax from the transferees in order to give effect to such transfers in the Board Record for the purpose of tax collection by the Board in respect of an immovable property situated within the limits of Cantonment Board. According to the learned counsel in view of the abovementioned reasons the impugned judgment deserves to be reversed being not sustainable in law in view of the admitted facts of both the cases.

6. Mr. M. Naeem Sadiq, the learned Advocate Supreme Court has contended that the entries relating to the imposition of tax by a local council on transfer of immovable property were omitted from Part-II and Part-III to the Second Schedule to the Punjab Local Government Ordinance, 1979 which earlier was leviable by virtue the provisions of section 137 of the Punjab Local Government Ordinance, 1979, therefore, the Board could not have demanded for the payment of 3% tax in the light of the abovementioned Notification in view of provisions of section 60 of the Cantonments Act, 1924 as the Board is only competent to impose any tax in any Cantonment area which under any enactment for the time being in force may be imposed in any municipality in the Province wherein such Cantonment is situated but as the relevant entries with respect to the imposition of tax on the transfer of immovable property by a local council was omitted from Part-II and Part-III to the Second Schedule to the Punjab Local Government Ordinance, 1979, therefore, refusal by the Board to give effect to the transfer of property in the Board Records in favour of the writ petitioners without payment of tax was illegal, void and without jurisdiction.

7. The contentions put forth on behalf of the parties by their learned counsel have been considered in the light of the enabling provisions read with section 60 of the Cantonment Act, 1924, section 137 of the Punjab Local Government Ordinance, 1979 and the Schedule thereto, the subsequent Punjab amending Ordinance No. XLXI of 1999 and Punjab amending Ordinance No. VII of 2001, whereby the imposition of tax on transfer of immovable property was reintroduced in Part-II and Part-III of the Second Schedule to the Ordinance. The documents filed with these petitions and impugned judgments have also been perused minutely. Section 60 of the Act provides that the Board may with the previous sanction of the Central Government impose any tax in any Cantonment which under any enactment for the time being in force may be imposed in any municipality in the Province wherein such Cantonment is situated, whereas; by virtue of subsection (2) of section 60 of the Act any tax imposed under section 60 shall take effect from the date of its Notification published in the official Gazette. In supersession of the earlier Notification on the subject dated 30-4-1981 a subsequent Notification dated 14-5-1994 referred to above was issued in the light whereof tax at the rate of 3% was demanded from transferees/writ petitioners in order to give effect to the transfer of immovable property in the Board Records. The Board declined to accede to the request of the respondents for transfer of the immovable property in their favour unless the demand of tax was paid by them.

8. The tax leviable by District Councils and Urban Local Councils were described and enumerated in Part-II and Part-III of Second Schedule to the then Punjab Local Government Ordinance, 1979 by virtue of the provisions of section 137 of the Ordinance which provided that a Local Council subject to the provisions of any other law may and if directed by the Government shall levy all or any of the taxes enumerated in the Second Schedule. Previously, the tax on the transfer of immovable -property was imposed under Entry No.1 of Part-II and Entry No.5 of Part-III of the Second Schedule to the Ordinance and therefore, Board within its powers could demand tax on the transfer of immovable property from the transferees within the meaning of section 60 of the Act pursuant to which the Notification on the subject was issued, to give effect to transfer of immovable property within its territorial limits, till such time the entries relating to the imposition of tax were deleted vide amending Ordinance No.XLIX dated 28-9-1999 but subsequently, the same were reintroduced through Punjab Local Government (Amendment) Ordinance No. VII of 2001. On the reintroduction of the deleted entries of the Schedule, the Notification, dated 30-5-1994 issued under section 60 of the Act empowered the Board to recover tax at the rate of 3% on the transfer of immovable property situated within limits of Lahore Cantonment on the strength of the provisions of section 60 of the Act. This Notification after its issuance, irrespective of the amending Ordinance XLIX of 1999 or reintroduction of the deleted items in the Schedule mentioned above was never modified or superseded by any other Notification on the subject, therefore, the same shall become operative on reintroduction of the deleted items of the schedule with regard to imposition of tax on the transfer of immovable property. Therefore, in view of the undisputed facts of both the cases it is to be seen whether the property was transferred in favour of writ petitioners during interrgnum period or otherwise. Admittedly property purchased by respondents Nos.1 and 2 Mst. Nargis Moeen and Zubair Moeen (in C.P. No.2300-L of 2003) was transferred in their favour by the Society in its record in January, 1997 and they applied to the Cantonment Board in February, 1997 to give effect to such transfer in the Board Record, after raising construction on the plot purchased by them and since such transaction was finalized and approval as above noted was accorded by the Society prior to the amending Ordinance No. XLIX of 1999, therefore, they were liable to make payment of the tax at the prescribed rate for transfer of the property in question in their favour to the Cantonment Board in its record but the learned High Court by misconstruing the facts regarding the date of the sale transaction and the transfer made in favour of writ petitioners by the Society held that the Board could not demand the amount of tax from them although; by such date when the property was recorded by the Society in favour of the writ petitioners, the entries relating to the payment of tax on the transfer of immovable property in Part-II and Part-III of the Schedule to the Ordinance were not deleted, whereas; in the other case, subject-matter of Civil Petition No.2301-L of 2003 the property in question was transferred after purchase in favour of respondent No.1 Mrs. Samina Naz Farooq in her favour by the Society vide its approval accorded by the Managing Committee in its meeting held on 22-5-2001 and communicated to the transferee vide letter dated 26-5-2001, the entries relating to the imposition of tax on the transfer of immovable property were not yet reintroduced by the Punjab Amending Ordinance VII of 2001 dated 30-6-2001 and therefore, the Cantonment Board could not have refused to give effect to such transfer in its record on the ground mentioned hereinfore.?

9. In our considered view the impugned judgment passed by the learned High Court in Writ Petition No. 18615 of 2001 is unexceptionable, therefore, Civil Petition No.2301-L of 2003 being devoid of any merit is dismissed, whereas; for the above mentioned reasons Civil Petition No.2300-L of 2003 in which impugned judgment passed in Writ Petition No.7559 of 2000 has been assailed, for being not sustainable in law in the light of the undisputed facts is set aside, by converting the petition into appeal and the same is allowed accordingly with no order as to costs. M.H./A-48/SC???????????????????????????????????????????????????????????????????????? Order accordingly.