Provincial legislation

2019 PTD 389 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 2 (72B), 2 (72C), 2 (79), 3, 4, 5, 8, 9, First Schedule Tariff Heading 9806.3000 & Second Schedule Part-B

Constitution of Pakistan, Arts. 70, 73, 142 & Fourth Schedule [as amended by Constitution (Eighteenth Amendment) Act, 2010]

Provincial legislation

Renting of immovable property

Services

Economic activity

Petitioners were owners of immovable properties who were aggrieved of imposing of sales tax under the heading of services on rental income from said properties

Validity

Scope of Provincial Legislation was enhanced while abolishing Concurrent Legislative List from Fourth Schedule to the Constitution

Express restriction upon Provincial Legislation was imposed to the extent of Federal Legislative List in Fourth Schedule to the Constitution

Term 'economic activity' included supply of moveable property by way of lease, license or similar arrangement but supply of immovable property by way of lease, license or similar arrangement was excluded by legislature from the purview of definition of term 'economic activity'

Mere renting of immovable property by landlord to tenant for consideration (rent) did not involve any element of service or taxable service or economic activity as defined in Sindh Sales Tax on Services Act 2011

Notice of recovery of sales tax under Sindh Sales Tax on Services Act, 2011, issued by authorities was without lawful authority

Mere letting out of immovable property by landlord to a tenant on rent for consideration did not involve any element of providing any taxable services

Amount of rent received by landlord from tenant could not be subjected to tax while invoking provision of S.2(72C) of Sindh Sales Tax on Services Act, 2011 read with Tariff Heading 9806.3000 of First Schedule and Part-B of Second Schedule to Sindh Sales Tax on Services Act, 2011

Constitutional petition was allowed in circumstances.

2016 CLC 466 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 32(3)Constitution of Pakistan, Arts.199, 143, 25 & 27Constitutional petitionCivil serviceAppointmentDetermination of eligibility criteria for the post of Associate Professor in Medical CollegeInconsistency between Federal legislationEffectProvincial legislationEffect

Petitioner applied for the post of Associate Professor of Ophthalmology, which was regretted for the reason that "not eligible due to teaching experience for the post was not in accordance with Government of the Punjab Service Rules"

Eligibility/experience of the petitioner was determined by PM&DC under a statutory authority (Federal Legislation) and the respondents were ignoring the same by enforcing the purported Rules made under the authority of Provincial Legislation

No scholarly discussion was required to hold that the authority given by the Provincial Legislation was void under Art.143 of the Constitution in presence of an authority for determining the eligibility given by the Federal Legislation i.e. Pakistan Medical and Dental Council Ordinance, 1962

Act of the respondents of substituting the eligibility/experience determined by the PM&DC shall lead to uncertainty and might give way to discrimination and arbitrary exercise of administrative powers

Council was statutorily recognized institution to determine the qualification in the field of medicine and it had superior authority, being specialized and technically equipped, to opine on the eligibility/experience in a particular discipline

Uncertainty was prevalent; Health Department, in some other advertisement, while describing the eligibility criteria had stipulated that "Qualification/experience required as prescribed by PM&DC", meaning thereby that the Health Department was itself not following a uniform and consistent policy

Such inconsistent advertisements by the Health Department were, without doubt, in violation of Arts.25 & 27 of the Constitution

Condition of eligibility criteria ("Five years teaching experience as an Assistant Professor in the relevant subject") given in the advertisement was itself ambiguous and germane for two interpretations i.e. 'actual experience' or 'experience as determined by the PM&DC'

If two interpretations were possible, one favouring the subject should be followed

Constitutional petition was allowed by directing the respondents to consider the petitioner for appointment against the post of Associate Professor.