P L D 1975 Lahore 717 (PLP)

Jaffer Baig Sahib v. Chicacole Municipality A I R 1927 Mad. 927 not approved. Municipal Council, Tirupati v. Mahant Prayag Dossjee Varu A I R 1915 Mad. 594 ; Municipal Council, Palni v. Sri Dhandayuthapani Pillat A I R 19411 Mad. 185 and Madura Municipality v. Devasthanams A I R 1 942 Mad. 658 ref. Sh. Abdul Haque for Petitioner. Mian Ataul Haq for Respondent. Date of hearing : 16th June 1975. Property bearing No. 63, Multan Cantonment Rating Area, comprising a Church, a Bishop's house, some servant quarters and three small godowns, is owned by Catholic Diocese of Multan, petitioner herein. 7 he Executive Of;,er of the Cantonment Board, Multan, assessed the property to tax at the rate of Re. 1,200.00 per annum. The District Magistrate, Multan, dismissed the appeal of the petitioner. This is a petition under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan with the prayer that the order of assessment passed by the Executive Officer of the Board and the appellate order of the District Magistrate be declared to be without lawful authority and of no legal effect.

2. The case of the petitioner is that the property consists of the church proper, the Bishop's house, servant quarters meant for the residence of the church employees and three small godowns for storing movable property of the church; that the three last mentioned items are ancillary to the church and cannot be separated or treated as being separable from it; and that these items are absolutely necessary for providing accommodation to the function aries responsible for keeping the church in proper trim and for conducting service. No written statement having been filed on behalf of the respondent Board, this factual position remains unrebutted. It has, however, been submitted on behalf of the respondents that the church, which is actually used for worship, has already been exempted from property tax, and that the Bishop's house, servant quarters and the godowns were liable to be assessed to tax.

3. The question whether or not the Bishop's house, servant quarters and the godowns are exempt from property tax rests wholly on proper appraisal of clause (a) of subsection (2) of section 99 of the Cantonments Act, 1924, which reads as follows:

"(2) The following buildings and lands shall be exempt from any tax on property other than tax imposed to cover the cost of specific services rendered by the Board; namely- (a) Places set apart for public worship or either actually so used or used for no other purposes." A bare reading of this provision of law shows that all buildings and lands set apart for public worship or either actually so used or used for no other purpose are exempt from any tax. However, if the Board has to render an, specific services, relatable to a place of worship within its limits, it may impose tax to cover the cost for such services. The case of the petitioner is that the Bishop's house, the servant quarters and the godowns attached with the church are being actually used for no other purpose except for accommodating the functionaries responsible for proper maintenance of the church; for conducting service, and for storing property of the church. These facts are not disputed on behalf of the respondents. It is also not their case that the Board renders any services towards the maintenance of the church. More over, the premises which have been assessed to property tax are admittedly not being used for any secular or commercial purposes and thereby yielding any profit. However, learned counsel for the respondents placed reliance on Subraya v. Arundel ((1883)1 L R 6 Mad. 287) where the question raised was whether a building known as the Dharma Sivachari Mattam was exempt from liability to the Municipal "House-tax" as being a place of public worship within the meaning of section 119 of the City of Madras Municipal Act. The Magistrate held that the building was exempt from taxation, but referred the point for the decision of the High Court at the request of the respondent. The High Court remanded the case to the Magistrate for making further inquiry as to the purposes for which the building had been used, and as to whether it had been in whole or in part only used for public worship, and was then so used. The Magistrate adhered to his former opinion. By observing that from the facts it appeared that there was accommodation for residence in the building; that the High Priest and other persons occasionally resided there, and that it was not used altogether and at all times as a place of worship, the High Court held: "We reply to the reference that, when the Mattam is in part or in whole used for purposes other than those of public worship, it is liable to taxation, and that the feeding of Brahmans, although it may be meritorious, is not what the Act contemplated as public worship." Since the High Priest had left and removed the idol which he worshiped on behalf of the community and his return being indefinite, and also that the building was used for feeding the Brahmans which purpose was not considered as `public worship' the building had lost its character as a place of worship and, therefore, it could not naturally retain the character of `a place of public worship'. It was in these circumstances that it was held that the Mattam in which Hindu religious mendicants had been residing was liable to taxation. This judgment, therefore, does not advance the case of the respondents. Reliance was also placed on Jaffer Baig Sahib v. Chicacole Municipality (A I R 1927 Mad. 927) where the judgment delivered by Reilly, J., was: "Even if there is a darga on soma part of the land in question or the land is the endowment or part of endowment of a darga, that does not make the land exempt from Municipal property tax, under S. 83 of the District Municipalities Act, 1920, as contended for the petitioner". The learned Judge had not given any reason whatsoever in support of his decision, and had also failed to notice the earlier decision of the Division Bench of the same Court in Municipal Council, Tirupati v. Mahant Prayag Dossjee Varu (A I R 1915 Mad. 594) where a contrary view was taken. The question in that case was whether buildings used for stabling Devasthanam horses which were employed in carrying drums in temple procession or allowed for the use of pilgrims to whom honour was shown by the mahant were exempt from the Property Tax. It was held that they were exempt. This decision was cited with approval in Municipal Council, Palni, through Commissioner v. Sri Dhanda yuthapani Palni through Managing Trustee, T. P. Venkatarangam RIM (A I R 1941 Mad. 185) and it was further observed that it was not open to criticism, because the buildings were used for purposes connected with worship in a public place. Needless to say, at this stage, that in Municipal Coancil, Tirupati v. Mahant Prayag Dossjee Varu the buildings which were the subject matter of taxation were being used for stabling Devasthanam horses which had been employed in carrying drums in temple procession or allowed for the use of pilgrims to whom honour was shown by the mahant. In the instant case, the premises in dispute are being used for housing the Bishop and employees of the church and the godowns are being used for strong movable property of the church.

4. Learned counsel for the respondent also relied on Kanhardas v. Keahav A I R 1935 Bom. 321 In that case, there was a temple of Balaram at Jalgaon to which there were attached twelve rooms, one occupied by the manager himself and the others by tenants who paid rent for the same. The question for deter mination before the Court was whether the rooms which were let to tenants could be regarded as being used exclusively for religious or charitable purposes. Broomfield, J., interpreted the following Municipal bye-law:

"The following buildings shall be exempt from the payment of House Tax, viz: (a) building used exclusively for religious, charitable or Municipal purposes" to mean that rooms appurtenant to a temple which were used for residential purposes and let to tenants were not exempt from Municipal taxation even though the income was used for religious purposes connected with the temple. While holding so, it was further observed: "The rooms themselves are used for a secular purpose, and the fact that the income derived from such use is devoted to religious purposes would not, I should say, bring the buildings themselves within the ambit of the bye-law." The observations of the learned Judge in the same judgment that the actual temple of Balaram and also a room for the accommodation of visitors to it were exempted by the Municipality under this bye-law are quite significant, despite the fact that the terms of the bye-law in that case were not as wide as those of clause (a) of section 99(2) of 1924 Act. The facts of the case in hand are, moreover, quite different. The premises in question are not being used for commercial purposes, as observed already. I have no doubt, therefore, that the judgment in Kanhardas v. Keshav has no application to the facts of the present case. Furthermore, in Municipal Council, Palni, through Commissioner v. Sri Dhandayuthapani Devasthanam Palni through Managing Trustee, T. P. Venkata rangam Pillai there was a hill which was set apart for religious purposes. On the top of the hill, besides a famous temple, which was approached by means of along flight of steps, there were also shops and hotel which supplied the needs of the pilgrims who visited the temple. In 1929, the trustees built the power house and installed electric plant for the purpose of lighting the way upto the temple and the temple itself. Later on, they supplied electricity to the shopkeepers and the hotel-keeper for which the trustees charged profitable rates. The fact that electricity was supplied to the shops and to the hotel led the Municipal Council to assess the power house to Property Tax. The trustees objected on the ground that this building was exempt from taxation by reason of the provisions of section 83(1)(a) of the Act. The property having been assessed to tax, and the tax having been paid, the trustees institut ed a suit in the Court of the District Munsif of Palni for the recovery of the amount. The District Munsif dismissed the suit, but on appeal his decision was reversed and the suit was decreed. The Municipal Council appealed to the High Court. Clause (a) of subsection (1) of section 83 of the Madras District Municipalities Act, 1920, provided that "places set apart for public worship and either actually so used or used for no other purpose" "shall be exempt from the Property Tag". This provision is exactly the same as is clause (a) of subsection (2) of section 99 of the Cantonments Act, 1924, and while interpreting it, a Division Bench of the Madras High Court held: "In cur opinion, the words `places set apart for public worship and either actually so used or used for no other purpose' read with the opening words of the section mean that there shall be exemption for places set apart for public worship, and used for that purpose and for places set apart for public worship but not actually in use. If a place is used for a purpose other than public worship, the place does not fall within the exemption, even though the intention was that it should be used for public worship." It was further observed: "The hill has been set apart for public worship and it cannot be disputed that if this power house were merely used for lighting the temple and the approach to it the power house would be exempted from taxation. But, inasmuch as the power house, which stands on a part of the hill, is being used for commercial purposes as well as purposes of public worship, the conditions of the exemption are not fulfilled." This judgment was cited with approval in Madura Municipality v. Deva5tha nams (A I R 1942 Mad. 658) and it was observed: "That there are a large number of shops inside the compound of the Madura temple in which all kinds of commodities are being sold has not been disputed and as long as it is not possible to hold that those commodities were such as could only be used for purposes of worship in the temple or in other words, the shops or stalls were being used only for the purposes subservient to the worship in the temple, the contention of the Madura Devasthanam that the properties in which those goods were sold were not liable to taxation could not be upheld." As observed already, in the case in hand the Bishop's house servant quarters and the godowns are ancillary to B the church and are not being used for any other purpose. In these circums tances, the finding of the learned District Magistrate, Multan, that the Bishop's house, servant quarters and the godowns attached to the church do not fall within the ambit of the term "places set apart for public worship or either actually so used or used for no other purposes" cannot be sustained.

5. In the view of the matter I take, I would accept this petition, declare both the assessment order and the one passed in appeal by the District Magistrate, Multan, to be without lawful authority and of no legal effect, and would further declare that the residential quarters including the Bishop' house attached to the Catholic Diocese of Multan are exempt from pro-tax under clause (a) of subsection (2) of section 99 of the Cantonments Act, 1924. There shall, however, be no order as to costs. K. B. A Petition accepted.