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Constitutional Petitions Nos. 632, 635, 637, 656 of 1972; 320 of 1973 and 747 of 1974, decided on 23rd August 1977.

‑‑ Ss. 2 & 3 and Cantonments Act (II of 1924)‑Levy of property tax by Provincial Government on lands and buildings situate In Cantonment area‑Held, valid.

Pakistan v. Province of Punjab P L D 1975 S C 37 rel.

‑‑ Art. 199 read with Sind Urban Immovable Property Tax Act (V of 1958)‑Question whether property belongs to Central Govern ment and, therefore, exempt from property tax‑To be decided in each case with reference to relevant documents‑Such question of fact to be considered by Assessing Authority and not by High Court.

Muhammad Arif for Petitioners.

Shah Jamil Alam Deputy Attorney‑General for Respondent No. 1. .

Abdul Hafiz Lakho Addl. A.‑G. with Muhammad Sharif for Respon dents Nos. 2, 3 and 5.

Mansoorul Arfin for Respondent No. 4.

Dates of hearing : 16th and 17th August 1977.

‑The petitioners are owners/lessees of immovable property situate within the territorial limits of the Karachi Cantonment Board and they seek to challenge the levy of property tax by the Provincial Government under the Sind Urban Immovable Property Tax Act, 1958. The impugned notification reads as follows:‑

"No. 3(16)/70‑Tax/4442.‑In exercise of the powers conferred by sub‑section (1) of section 3 of the Sind Urban Immovable Property Tax Act 1958, the Government of Sind are pleased to specify the areas within the jurisdiction the following Cantonment Boards to be Urban areas where the tax shall be levied under the said Act‑

(1) Karachi Cantonment Board.

(2) Drigh Cantonment Board.

(3) Malir Cantonment Board.

(4) Hyderabad Cantonment Board.

By Order of the Governor of Sind,

Rashid Ahmad,

Secretary to Government of Sind,

Excise & Taxation & Local Govt. Department.

2. The two grounds urged in support of the petition are that the provisions of section 2(1) of the Sind Urban Immovable Property Tax Act; 1958 including the area within the boundry of the Cantonment Board in the definition of the urban area .is ultra vires of the Constitution and the Provincial Government acted without lawful authority and contrary to the provisions of the Constitution of the Islamic Republic of Pakistan and the Cantonment Act, 1924 and that the Sind Urban Immovable Property Tax Act, 1958 was not applicable to the area falling within the territorial jurisdiction of the Karachi Cantonment Board which is centrally administered area under the Cantonment Act, 1924. The prayer in the petitions is to have the aforesaid notification declared without lawful authority and direct the respondents, other than the Cantonment Board, to refrain from levying, assessing or recovering property tai under the aforesaid notification.

3. We are relieved of examining the above contentions in detail for the validity of the said Act and the levy of property tax on Immovable property situate in cantonment area came up for consideration before the Supreme Court of Pakistan in the cage of Pakistan v. Province of Punjab (PLD 1975 SC 37), in which both the validity of the Act as well as the levy of property tax on lands and buildings situate in the Cantonment area have been held to be valid the only exception being lands and buildings vesting in the Central Government which are exempted under the Act itself. Mr. Mohammad Arif, the learned counsel for the petitioners, however, contended that the attention of the Supreme Court had not been invited to the irreconcilable conflict between the West Pakistan Urban Immovable Property Tax Act, 1958 and the Cantonment Act, 1924 and the latter as a Central Statute would override the former which was a Provincial Statute.

4. We are more than doubtful whether it is open to us to disregard a binding decision of the Supreme Court on the ground that the Supreme Court had omitted to consider one or the other ground in arriving at its decision unless of course the omission arose out of failure to notice a statute to which the attention of the Supreme Court had not been invited. The argument is even otherwise untenable for the occasion for a conflict between a Central and a Provincial Statute would arise if there was a trespass by one in the legislative field of the other or repugnances between an Act of Parliament and a Provincial Act on a concurrent field of legislation (which is not the case here) and that there was no such trespass in the present case has been conclusively decided by the Supreme Court in their aforesaid decision in a passage appearing at page 49 which reads as follows:‑

"According to the Interim Constitution of 1972 and the Permanent Con stitution of 1973, the legislative field covers only Local Self‑Government in such area the Constitution and powers within such areas of Cantonment authorities, the regulation of housing accommodation in such area and the delimitation of such areas. Under the 1956 Consti tution also, the Federal Legislature had power to legislate with regard to 'delimitation of Cantonment area, Local Self‑Government in Canton ment areas; constitution, powers, and functions, within such areas, of cantonment authorities, control of house accommodation (including con trol of rents) in such areas'. Under the 1935 Act, the power given to the Federal Legislature was to Legislate for 'Local Self‑Government in cantonment areas, the constitution and powers within such areas of cantonment authorities the regulation of house accommodation in such areas, and the delimitation of such areas.'.

In the 1912 Constitution, however, the powers are a little wider. It reads as follows :‑

(a) Cantonment areas, including

(i) the delimitation of such areas;

(ii) Local Self Government in such areas, the constitution of local authorities for such areas and the functions and powers of such authorities 1 and

(iii) the control of housing accommodation (including control of rents) in such areas.

Nevertheless, if we read the legislative list in the manner that they should be read, namely. that if there is a specific provision for a special subject In a particular item of a particular list, then that subject falls within that item of the said list and not under any general item. Since Taxation on lands and buildings specifically mentioned in the Provincial Legislative List as a separate item of legislation, legislation in respect of taxes on lands and buildings comes within the competence of the Provincial Legislature and the law so made would apply in any part of the Province making the law, unless the area sought to be excluded has been specifically exempted under the law or under any constitutional provision. I have not been able to discover anything in any Constitution or any law to show that a cantonment area is not to be included within the territorial limits of a province in which it is situated. In the circumstances, I have come to the conclusion that the claim of the Central Government that all lands and buildings included in the Cantonment area are exempt from payment of the Urban Immovable Property Tax imposed by the Provincial Legislatures of the Province of Pakistan is not tenable."

5. The next contention of the learned counsel was that there was no occasion for the Supreme Court to consider the question of double taxation for the petitioners were saddled with liability to pay property tax both to the Provincial Government as well as the Cantonment Board. In these petitions the limited question is the levy of property tax by the Provincial Government under the Urban Immovable Property Tax Act and that being valid no further question arises for our consideration. The petitioners do not challenge the imposition of property tax by the Cantonment Board and vie are therefore, not called upon to examine its validity even if we were to assume that there is any merit in the argument of double taxation. Moreover, Mr. Mansoorul Arfin, the learned counsel for the Cantonment Board stated at the Bar that the Board does not collect any property tax since 1‑7‑1975 but receives its share of property tax from the collection made by the Provincial Government under the said Act which is also confirmed by Mr. Abdul Hafiz Lakho, the learned Additional Advocate‑General.

6. Lastly, it was contended that the petitioners were merely lessees of the lands and buildings the ownership of which is vested in the Central Government and therefore, they were exempted from payment of property tax both under the constitution as well as the said Act. As was observed by the Supreme Court of Pakistan in the aforesaid decision the question whether a property is the property of the Central Government and, therefore, exempted from property tax will have to be decided in each case with B reference to relevant documents, and this question of fact will have to be considered by the Assessing Authority in each case. In the circumstances, it is not open to us to grant the petitioners any exemption on this ground for that question will have to be determined by the relevant Assessing Authority.

7. The result, therefore, is that there is no merit in these petitions and they are dismissed belt in the circumstances there will be no order as to coats.

S. Q. Petition dismissed.

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