1981 SCMR 623 (PLP)

DORAB PATEL, J.-The dispute in this appeal is about the annual value under section 64 of the Cantonments Act, 1924 (hereinafter called the said Act) of a hotel in Rawalpindi which is run by the appellant. As the appellant was aggrieved by the assessment made by the Assessment Committee of the Cantonment Board, he had filed an appeal before the District Magistrate under section 84 of the said Act. He did not, however, deposit the amount due from him, therefore, the appeal was dismissed by the District Magistrate on the ground that it was hit by section 87(b) of the said Act. Therefore, the appellant filed a writ petition in the Lahore High Court which was dismissed on the short ground that it was not maintainable, because his appeal had been rightly dismissed for breach of the mandatory provisions of section 87(b) of the said Act. The appellant challenged the dismissal of his writ petition in a petition for leave and contended that there was an "illegality on the face of the record inasmuch as the assessment has been made in respect of the furniture also." This, according to the learned counsel, was not permissible, under the law. He has further contended that the High Court was wrong in dismissing the writ petition on the ground that the petitioner should have deposited the annual assessment before the filing of the writ petition." Leave was granted to examine these two questions. But, Mr. Ansari submitted that leave to examine the first of these two questions was granted on a misconception, because the annual value of the hotel run by the appellant was reduced from Rs. 60,000 per year to Rs. 48,000 per year and that this rebate of Rs: 12,000 was on account of the furniture. This was not disputed by Mr. Sirajul Haq, therefore, the only question is whether the High Court was justified in dismissing the appellant's writ petition, because he had not prosecuted his appeal under section 84 of the said Act. Learned counsel feebly attempted to argue that the provision for deposit of the amount of tax in dispute was not a pre-condition of an appeal under section 87 of the said Act. The submission is not correct and is contrary to clause (b) of section

87. Therefore, the only question is whether the right of appeal conferred by section 84 of the said Act was not an adequate remedy, because the appellant had to deposit at the time of the filing of his appeal before the District Magistrate the amount of tax which was disputed by him. The question was of fact and the amount of tax w comparatively small. Therefore, we would not be justified in interfering with the discretion exercised by the High Court against the appellant. This is obvious, therefore, learned counsel attempted to get round this difficulty by submitting that the amount which the appellant had to deposit under section 87(b) was substantial, because the annual value had been enhanced retrospectively and in this connection he referred us to the order of the Cantonment Board dated 21-3-1969. Now, although the demand for was retrospective, the appellant did not contend in his reply to the Canton ment Board dated 19-4-1969 that the demand for retrospective tax was illegal. Similarly in his appeal before the District Magistrate, he did not contend that the Cantonment Board could not enhance its valuation wit retrospective effect. Therefore, he cannot now contend that the valuation was illegal on the further ground that it was with retrospective effect. Learned counsel then stated that the appellant could not have challenged the illegality of the assessment on the ground that it was retrospective in an appeal under the said Act. The argument is contrary to the plain language of section 84 of the said Act and is rejected. Learned counsel also attempted to argue that the lease with the appellant had been misread and that the actual letting value of the property under clause (b) of section 64 of the said Act was Rs. 3,000 per month and not Rs. 5,000 per month as held by the Cantonment authorities. The argument turns on the construction of the remission clause in the lease deed, but as leave was not granted to examine it, we would not go into it. The appeal is without merit and is dismissed, but we leave the parties to bear their own costs. Appeal dismissed.