' MAULVI ANWARUL HAQ, J.---This judgment shall decide W.P. No.2967 of 2005 and W.P. No.4464 of 2003 as some common questions are involved.
2. The facts and circumstances leading to the filing of these W.Ps have been respectively stated in orders dated 25-5-2005 and 23-10-2003 respectively in these two cases, which may be read as part of this judgment and need not to be reproduced here. The petitioners in both these cases own residential buildings located in Multan Cantonment. Both are aggrieved of respective assessment undertaken by the respondents and the issuance of warrants of arrest as a measure to recover the immovable property tax, being demanded by respondent No.l.
3. Mr. Muhammad Ashraf Tasneem, Advocate representing the petitioners in both these cases contends that the assessm ent being subject to various other provisions of Cantonments Act, 1924 particularly the right of appeal and the appellate forum being not available, the assessment having not attained finality, tax cannot be recovered. It is further contended that the buildings remained vacant for several years and can be made subject to the said tax only with effect from the date of occupation. Warrants of arrest are being challenged on the ground of being void, there being no provisions in law for recovery of said tax by arrest and detention. Syed Muhammad Ali Gillani, Advocate, learned counsel for the respondents, on the other hand, contends that the respondents have obtained advice from Law and Justice Division, Federal Government, according to which appeal lies with the District Judge. He also suggests that the petitioners in these cases can again approach the Assessm ent Committee with particulars of their grievances which can be redressed by the said Committee.
4. I have gone through the files of these cases and the relevant provisions of Cantonments Act, 1924 in the light of respective submissions of the learned counsel for the parties. Section 60 of the Cantonments Act, 1924 (hereinafter to be referred to as said Act) empowers the Cantonment Board (hereinafter to the referred to as the Board) to impose in any Cantonment any tax which under any enhancement for the enactment for the time being in force, may be imposed in any municipality in the Province wherein such Cantonment is situated. This is subject to the previous sanction of the Federal Government and the tax to be imposed is to take effect from the date of its Notification in the official Gazette. Section 61 requires a Board to publish a notice specifying---
(a) the tax which it is proposed to impose;
(b) the persons or classes of persons to be made liable and the description of the property or other taxable thing or circumstance in respect of which they are to be made liable; and
(c) the rate at which the tax is to be levied.
' Section 62 gives a right to any inhabitant of the Cantonment to file objections in writing to the proposals contained in the said notice published under section 61 which shall be considered by the Board and to be decided by it by special resolution. In case the Board decides to modify the proposals then it shall republish the modified proposals in the manner prescribed by section 61.
Upon final settlement of the proposals, these are to be submitted along with the objections to the Federal Government through a competent Authority. This Authority is defined in section 2(viii) of the said Act. Under section 63 a Federal Government may authorize the Board to impose tax either in the original form or, in any such modified form as it thinks so fit. Section 64 defines the annual value of a building. Section 65 narrates incidence of tax i.e. Persons upon whom tax assessed on the annual value of building is to be levied. Section 66 requires a Board to cause assessment list of all buildings or lands in the Cantonment area to be prepared in the form to be prescribed by the Federal Government. Section 67 requires a Board to give public notice upon preparation of the assessm ent list to be open to inspection by any person claiming to be an owner lessee or occupier of any property included in the list and to make extracts therefrom. Under section 68 Board is required to give a public notice of a date not less than one month thereafter, when it will proceed to consider the valuation and assessments. It further mandates a Board to give a notice in writing to the owner, lessee or occupier of the property which is to be assessed for the first time or its assessm ent is to be increased. Section 68(2) provides for filing of objections to the valuation or assessm ent and such objections are to be recorded in a Register to be kept for the purpose by the Board. Section 68(3) makes it mandatory for the Board to inquire into and to investigate the objections and providing opportunity of hearing to the persons making objections by an Assessm ent Committee to be appointed by the Board. This Assessment Committee is to be constituted under section 68(4) of the said Act. Section 69 provides for authentication of the assessm ent list after disposal of all objections made under section 68. This authentication is to be made by Members of the Assessm ent Committee under their signatures with certificate that all objections have been considered and the list has been amended as a result of their decision on such objections. This authenticated list is to be deposited in the office of the Board to be opened free of charges for inspection by all owners, lessees and occupiers of the property comprised therein.
5. Section 70 of the said Act provides that subject to such alterations as made or thereafter to be made in the assessm ent list under provisions of Chapter-V and to the result of any appeal made thereunder, the entries in the assessm ent list authenticated and deposited as provided in section 68 shall be accepted as conclusive evidence---
(i) for the purpose of assessing any tax imposed under this Act, of the annual value or other valuation of all buildings and lands to which such entries respectively refer, and
(ii) for the purposes of any tax imposed on buildings or lands, of the amount of each such tax liable thereon during the year to which such list relates.
6. Subject to notice to any person affected by the amendment of period not less than one month and tendering of objections and opportunity of hearing by the Board, section 71(1) of the Act authorizes the Board to amend the assessment list at any time as provided therein. Section 72 requires a Board to prepare a new assessment list at least once in every three years and this would be subject to provisions of sections 66 to 71. Section 73 requires the transferer or the transferee of any building or land to give a notice of such transfer to the Executive Officer of the Board within 90 days of the registration of an instrument of transfer under Registered cover. Section 74 requires a person to give notice to said Executive Officer within 30 days from the date of completion or occupation, whichever is earlier, of building. Section 75 confers discretion on the Board to refund such portion of any tax assessed as it thinks fit on the annual value of the building wholly or partly demolished or destroyed or otherwise deprived of value. Section 76 mandates a Board to remit or refund, as the case may be, such portion of any tax assessed on the annual value of any building that has remained vacant or unproductive of rent for 60 or more consecutive days. Section 77(A) mandates remission subject to a notice to be served in accordance therewith. Section 79 requires an owner to give notice of occupation of every vacant building or a house.
7. Under section 80 of the said Act tax on the building is to be first charge upon the building. It will be seen upon a reading of the said provisions of the said Act that assessment list made in accordance therewith attains finality subject to the result of any appeal to be made under Chapter-V. This appeal is provided for In section 84 of the said Chapter of the said Act. I deem it proper to reproduce here subsection (i) of section 84 which is relevant for the purpose of these writ petitions;
(i) "An appeal against the assessm ent or levy of, or against the refusal to refund, any tax under this Act shall lie to the District Magistrate or to such other officer as may be empowered by the Federal Government in this behalf: ' Provided that, where the person to whom the appeal would ordinarily lie is or when the tax was imposed, a member of the Board, the appeal shall' lie to the Commissioner of a Division, or, in a Province where there are no Commissioners, to the District Judge."
8. Exercise of this right is subject to conditions mentioned in section 87 laying down a period of limitation for filing of the appeals and deposit of the amount, if any, in dispute in the appeal, in the office of the Board. Section 88 confers finality on the orders of the appellate authority confirming, setting aside or modifying the order in respect of any valuation or assessment or liability to assessm ent or taxation. This, however, is further subject to a revision by the Federal Government under section 277 of the said Act. I may further note here that process of payment or recovery of tax has been provided for under sections 89 to 96. Section 99 contains a list of building exempted from any tax of property. Section 99-A empowers the Federal Government generally to exempt any person or class of persons or any property or goods or class of property of goods from payment of any tax imposed under said Act. Section 100 authorizes the Board to exempt any person who in its opinion by reason of poverty is unable to pay the tax.
9. Now reverting back to the said section 84 of the said Act, I have already noted above that the right of an appeal granted under section 84 of the said Act and the decision in the said appeal has a very important bearing upon the matter of assessment or levy of tax and in fact is an important part of the chain starting from the preparation of the preliminary proposals and ending in the ultimate payment and recovery of tax. Now upon plain reading of the said provisions there is no ambiguity whatsoever that appeal against assessment or levy of tax under said Act shall lie to the District Magistrate or to such other officer as may be empowered by the Federal Government on its behalf. Now the opinion of Law and Justice Division being relied upon by Syed Muhammad Ali Gillani, Advocate, goes to state that the appeal lies to the District Judge after office of the District Magistrate has been done away with under new local Government dispensation and the devolution plan introduced by the present regime. The said opinion on the face of it is against very provisions of said law. The proviso to subsection (1) of section 84 of the said Act provides an appeal to the Commissioner of Division (this office also no longer exists) and where there are no Commissioners, to the District Judge only where the Federal Government chooses to appoint a person as an appellate authority who is or was a member of the Board when the tax was imposed.
It will thus be seen that primarily the appeal either lies to the District Magistrate or to such other officer as may be empowered by the Federal Government. Now there is no dispute that neither the District Magistrate is there nor any other officer has been empowered by the Federal Government in this behalf. The result is that the right of appeal cannot be effectively exercised so as to give finality to a list and enable to make it acceptable as a conclusive evidence under terms of section 70 of the said Act in cases where a person aggrieved intends to file an appeal. Moreso when the order of the appellate authority itself is to attain finality subject to the provisions of revision by the Federal Government under section 277 of the said Act, as held by the Hon'ble Supreme Court of Pakistan in the case State Bank of Pakistan v. The Director, Military Lands and Cantonments, Rawalpindi (PLD 1990 SC 287). To my mind sections 70,84,88,277 and 278 of the said Act are to be read together.
10. Now considering the said provisions of law in the context of overall scheme of imposition of tax and recovery of said tax, inaction on the part of the Federal Government not taking appropriate steps which it is duly authorized to take in the matter of empowering an officer to exercise appellate authority in terms of section 84 of the said Act, is completely ununderstandable. There is no manner of doubt in my mind that if any owner or occupier of the building feels aggrieved and intends to file an appeal then the result of the same plays a vital role in the matter of finalization of the assessm ent list enabling the Board to impose and recover the tax in the manner prescribed.
The omission may very well lead to the conclusion that the entire process as prescribed in the said law for imposition, recovery and payment of the said tax cannot be lawfully completed without the appellate authority being there to decide the grievance of the owner, occupier or lessee of the building included in the assessm ent list.
11. So far as issuance of warrants of arrest are concerned, the same are wholly without lawful authority in view of the mode of recovery provided in section 259 of the said Act which only authorises a Magistrate to effect the recovery by the distress and sale of movable property of the alleged defaulter.
12. I further find that so far as the matter of assessment of annual value is concerned, the decision taken by the Assessm ent Committee is, of course, subject to exercise of said right of appeal as and when the Federal Government feels it proper to empower an officer to exercise appellate authority under section 84 of the said Act. However, in the matter of remission being claimed by both the petitioners in terms of section 76 of the said Act, Board itself is empowered to grant the same, of course, subject to proof of necessary facts as to the non-occupation of the buildings in question by the petitioners or on their behalf. Both the writ petitions are accordingly allowed in terms that the assessm ent list having not been finalized because of inaction on the part of the Federal Government to empower an officer to exercise appellate authority under section 84(i) of the Cantonments Act, 1924 demand of payment and recovery and proceeding for recovery of the immovable property tax from the petitioners are illegal and without lawful authority. However, in the matter of remission the petitioners to approach the respondent-Cantonment Board with appropriate applications along with 'reasonable proof for claiming remission on the ground that the building remained unoccupied, and the matter will be considered and decided by the Board accordingly.