2009 PLP 1462 (MLD)

MAULVI ANWARUL HAQ, J.

The petitioners purchased land mentioned in para 2 of the plaint within limits of respondent Cantonment Board vide registered sale-deed dated 23-8-2005 (Annex-D). He filed a layout plan to develop the said housing scheme on the said land which was approved vide Annex-B one of the conditions of the approval was that the petitioners or his transferee with reference to plots will be liable to pay transfer of immovable property tax (TIP) at the time of sale transaction. The petitioners challenged the very imposition of the said TIP tax as also the valuation table made by the respondent-Board (Annex-CI) and also imposition of what has been formed by him as commercial tax while respondent No.1 terms it as a commercial fee. However, the learned counsel at the Bar states that in view of the later judgment of the Honourable Supreme Court he will not be pressing his objections against the imposition of TIP tax.

2. Learned counsel for the petitioners contends that the respondent Cantonment Board has no lawful authority to prepare a valuation table under the provisions of the Cantonments Act, 1924 or with reference to any local law. Regarding commercial fee learned counsel refers to the bye-laws framed regarding erection and re-erection of the buildings in Taxila Cantonment to urge that in view of the fee structure imposed by the respondent-Board itself, it has no authority to impose an additional commercial fee in respect of buildings. Learned counsel for the respondent-Boar4, on the other hand, contends that valuation table has been prepared and commercial fee has been imposed in exercise of power vesting under Cantonments Act, 1924.

3. I have gone through this file. I find that Annexure-CI has been prepared by the Executive Officer of the respondent-Board proposing increase in the rates already fixed by the Collector in terms of section 27-A of the Stamp Act, 1899. There being no legal basis for the said rates proposed by the Executive Officer either in terms of said section 27-A or section 60 of the Cantonments Act, 1924, the same are wholly without lawful authority and the petitioners cannot be asked to pay TIP with reference- to the said proposed rates. Apart from this relevant S.R.Os. issued by the respondent-Board itself which are Annexures R.1 and R.2 the Board is competent to recover TIP tax at the rate of 2% (later enhanced to 5%) of the consideration money paid by the transferee. The mode of charging and levying the tax having been, thus, prescribed the respondent-Board otherwise will not be having any lawful authority to charge the tax on any amount other than consideration paid by the transferee, which of course is to be determined from the transfer document.

4. So far as the said commercial tax or commercial fee is concerned, I find that Executive Officer proposed the amount of fee vide Annex-R-3 on various kinds of buildings and it was approved by the Administrator.

5. Learned counsel for the petitioners draws my attention to the bye-laws framed by the respondent Board under section 186 of Cantonments Act, 1924. The fee chargeable has been duly worked out in Bye-law No.4 with reference to the estimated value of the buildings. Needless to state that fee is to be imposed and regulated by framing bye-laws which already stand framed and fee having been prescribed; the respondent-Board could not have imposed the said commercial fee over and above the one prescribed by bye-laws and that too in violation of the statutory provisions contained in Cantonments Act, 1924.

6. For all that has been discussed above writ petition is partly allowed and valuation table Annex-CI as also imposition of commercial fee vide Annex-R3 (to the written statement) are declared to be without lawful authority and void. No order as to costs. M.H./S-204/L Petition allowed.