1. MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- Common issues are involved in the above petitions, therefore, at the request of learned Advocates for the parties, the petitions have been heard together and are decided by this single judgment. In the first three petitions the main contention raised is that section 5-A added to the Sindh Urban Immovable Property Tax Act, 1958 is illegal, void and unconstitutional, therefore, the notification issued thereunder and the recovery of property tax on the basis of valuation made under the notifications in pursuance of above section 5-A is also illegal.
2. Initially the contentions were raised in the petitions to the effect that subsection 5-A was inserted in the Sindh Urban Immovable Property Tax Act, 1958 by Ordinance No,IV of 1999 with effect from 27th March, 1999 and notifications were issued thereunder. A petition was filed in the High Court challenging vires of section 5-A so inserted, was challenged and a statement was made by the learned Additional Advocate-General that the Ordinance had lapsed and therefore, the petition was disposed of. However, after the disposal of the petition the respondents again issued demand notice on the basis of aforesaid amended provision. It was, therefore, contended that the notifications and the valuation payable in pursuance of an Ordinance which was lapsed is illegal.
3. The respondents in their parawise comments stated that the Ordinance IV/1999 dated 27th of March, 1999 ceased to be effective after the expiry of three months from its date of issuance.
4. However, another Ordinance No,VII/2000 was issued on 30th of June, 2000 adding section 5-A to the Sindh Urban Immovable Property Tax Act, 1958. It was submitted that no tax was being demanded on the basis of amendment made through Ordinance IV/1999 but the notifications and valuation tables were issued in pursuance of Ordinance No,VII/2000, and the demand was made in pursuance thereof. It was explained that Ordinance No,VII/2000 was the Sindh Finance Ordinance, 2000 and thereafter the notification, dated 26th of June, 2001 containing complete guidelines for assessing authorities, as well as, for general public was issued, which was given wide publicity through the newspapers. A plea was taken in the petitions, that, in the valuations tables the respondents had adopted table issued for the purpose of collection of stamp duty in connection with registration of document and therefore, it was not justified. This contention was denied by the respondent contending that value for the purpose of registration and collection of stamps duty is on higher side while the valuation table for the purpose of property tax is based on rental value of the property. The valuation table for the purpose of stamp duty is issued by the Sindh Board of Revenue which has no relevance for the determination of property tax and the respondent had issued separate valuation table for the purpose of valuation to determine the property tax. It was further contended that if any party was aggrieved, mechanism was available for seeking the relief under section 10 of the Sindh Urban Immovable Property Tax Act, 1958. Any aggrieved person may file an appeal before the Director and revision petition before the Director-General, Excise Taxation, Government of Sindh, but the petitioners had not availed the remedies available under the law and therefore, the petition was not maintainable.
5. After filing of parawise comments as above the petitioners sought amendment thereby assailing the validity of Finance Ordinance, 2000 (VII/2000) through which section 5-A was added to the Sindh Urban Immovable Property Tax Act, 1958. The contention was that this Ordinance was not placed before the Sindh Assembly and, therefore, it ceased to have effect.
6. In C.P. No,618 of 2003 it was contended that under the Sindh Immovable Property Tax Act, 1958 and rules framed thereunder the assessing authorities were required to conduct physical survey of all the immovable Properties situated within their respective rating areas for ascertaining rental value of each and every property, prepare draft valuation lists of all the immovable properties, publish such lists and after hearing of objections, if any, to pass orders fixing the gross annual rental value in respect of every immovable property and then to raise demand and recover property tax. The valuation once made was to continue for a period of five years and on the expiry of such period fresh survey was to be conducted. It was further contended that the assessing authorities conducted the survey as above and fixed the rental value of the property owned by the petitioners at Sukkur at Rs,108000 for the year. 2000-2001. The petitioner came to know that the assessing authorities without door to door survey have prepared draft valuation list and objected to such preparation of the draft valuation list. However, the assessing authority by ignoring the objections fixed the valuation at Rs,6,01,182 vide order, dated 13-11-2001. The petitioner filed appeal against the said valuation before the District Excise and Taxation, Sukkur who dismissed the appeal and upheld the valuation.
7. It is averred in the petition that the order dated 13-11-2001 passed by the assessing authority is based on the notifications issued by respondent No,1 on 26-6-2001 and 29-6-2001. The orders passed by the assessing authority and the Director Excise and Taxation are assailed on the ground that very notifications forming basis of the orders are illegal. It is stated that right of revision is provided in the law but it will not serve any useful purpose, therefore, the petition has been filed in this Court. According to the petitioner the notifications have been issued under section 5-A of the Sindh Immovable Property Tax Act, 1958, which deprives the assessing authorities of their statutory duties of ascertaining the annual rental value of the properties as required under sections 3 and 5 of the Sindh Urban Immovable Property Act, 1958 and therefore, the notifications are illegal. In this petition the legality of newly-inserted section 5-A has not been assailed but the validity of the notifications dated 26-6-2001 and 29-6-2001 have been challenged.
8. The learned Additional Advocate-General has filed parawise comments on behalf of the respondents. The procedure which was adopted for determining the gross annual rental value prior to insertion of section 5-A has been admitted. It is submitted that the assessment and rental value has been made after a general survey of immovable properties through out the Province of Sindh, after a very long period. It is explained that in the existing survey proceedings the mode of assessm ent of property tax, has been changed from rental value to the measurement of plot area and covered area. Earlier the property of the petition was assessed during the year 1989 as per the old system of assessm ent. Fresh assessment has been made in accordance with the ceilings and criteria described and notified by the Government of Sindh. It is further stated that the information was sought from the petitioner in respect of his property unit and on the basis of information available and in accordance with the new system the value was initially assessed at Rs,6,01,182 which has been finally confirmed at Rs,5,82,554. It is submitted that the fresh valuation is not arbitrary but has been made after physical survey of the property in accordance with the law and after approval of the Government. It is further explained that while conducting general survey 2000-2001 the petitioner was repeatedly approached by the survey staff but the petitioner did not provide the requisite information relating to his property unit and also failed to file the data collection form prescribed by the department for the purpose of survey. Accordingly assessment of property tax was made as per physical inspection of the site of the property and on the basis of information received from the petitioner. It is admitted that the new mode of assessment has been introduced by the Government of Sindh in exercise of the powers conferred by section 5-A. It is denied that the fresh assessm ent made is violative of any provision of Sindh Urban Immovable Property Tax Act, 1958. It is further contended that the new system has been introduced in order to bring the transparency at the time of the assessment and to curtail the discretionary powers of the assessing authorities. The contention of the petitioner that under the new system assessment has been made on the basis of open area of the plot separately from the covered area of the plot is denied. It is explained that in the new system the size of the plot and the covered area have been kept into consideration, while making assessment of the property.
9. We have heard learned Advocates for the parties at length. So far the grounds urged in the first three petitions relating to the validity of section 5-A are concerned, the learned Additional Advocate-General submitted that the first Ordinance which was promulgated in the year 1999 stood lapsed. However, the provision was re-enacted through Finance Act, 2000. This Ordinance was not issued under Article 128 of the Constitution of Islamic Republic of Pakistan and, therefore, it was not a temporary legislation. It was a period of constitutional deviation. The Provincial Assembly was not in existence and therefore, it was not required to be placed before the Provincial Assembly.
10. The Sindh Finance Ordinance, 2000, through which section 5-A was inserted in the Sindh Urban Immovable Property Tax Act, 1958 was promulgated in pursuance of proclamation of the 14th day of October, 1999 and the Provisional Constitutional Order No,1 of 1999 read with Provisional Constitutional (Amendment) Order 9 of 1999 and was in the nature of permanent legislation which has been protected by the 17th Amendment to the Constitution, therefore, the validity of the Ordinance or any part thereof cannot be challenged.
11. The learned Advocates for the petitioners in the first three petitions are not able to controvert the contention.
12. So far the fourth petition is concerned, the main contention of learned counsel for the petitioner is that, similar provision was inserted in the Punjab Urban Immovable Property Tax Act, 1958, through Finance Act, 1998, and in similar manner as provided under section 5-A of the Sindh Urban Immovable Property Tax Act, 1958; it was provided that the annual value may be determined on the basis of such valuation and for such localities as notified by or under the authority of the Government. The valuation tables were issued in the Province of the Punjab and in pursuance thereof demands were raised which were challenged before the Lahore High Court in Writ Petition No,4799 of 2001. It was contended before the Lahore High Court on behalf of the Director-General Excise and Taxation that the valuation tables were prepared under section 5-A of the Act, and demands were raised accordingly. A learned Single Judge of the Lahore High Court found that in Province of Punjab the gross annual rental value was calculated as percentage of the capital cost of the properties which were subject to tax under the Act. This was done on the basis of valuation tables, which were prepared by the Deputy Commissioners of various Districts in the Province for the purpose of determining the minimum sale price of properties located in their respective Districts. It was not disputed by the Law Officer representing the Provincial Government that as a result of applying the aforesaid system of assessment of the gross annual rental value, the Excise and Taxation Department did not prepare any valuation tables to assess the rental value of the building of the properties located within different rating areas. Instead valuation tables bases on the capital value of the properties which were prepared for the purpose of assessing stamp duty and registration fee were used for the purpose of section 5-A of the Act.
13. It was observed by the learned Single Judge of the Lahore High Court that the procedure adopted by the Excise and. Taxation Department was not in accordance with the provision of section 5 and 5-A of the Act. It was observed that under section 5-A the authorities of the Provincial Government were empowered to determine gross annual rental value on the basis of valuation tables. However, the said provision does not empower the Government to prepare those valuation tables on the basis of the capital value of the properties involved, as was done by the Government. It was further held that the valuation tables which were used by the Provincial Government in determining the gross annual rental value of the properties for the purpose of the Act, admittedly, had no nexus whatsoever, with the rental value of the properties in question.
14. It was further held that in view of the above matter, the use of valuation tables, prepared by the Deputy Commissioners of various Districts in the Province for the purposes of Stamp Act and Registration Act, cannot be treated as valuation tables for the purposes of section 5-A of the Act. It was finally held that the demand raised against the petitioner, based on the valuation tables prepared on the basis of capital value of the properties were illegal.
15. It was observed that the judgment shall not prevent the Provincial Government from preparing valuation tables which are based on the annual rental value of the properties within different rating areas, provided such valuation tables were otherwise in compliance with the provision of section 5-A and the other provisions of the Act.
16. The learned counsel for the petitioner has further submitted that the above judgment of Lahore High Court was challenged before the Honourable Supreme Court in Civil Petition No,1435 of 2001 Government of Punjab v. Jamshed Waheed. The Honurable Supreme Court, vide judgment, dated 14-6-2001 upheld the judgment of Lahore High Court, with the observation that the learned Judge has correctly construed the provisions of sections 3, 5 and 5-A of the Act. The leave to appeal was refused and the petition was dismissed.
17. It has been contended that the matter already stands decided by the Honourable apex Court and, therefore, the valuation tables prepared by the respondents and issued vide notifications dated 26-6-2001 and 29-6-2001 are liable to be struck down and the valuation of the property held by the petitioner is liable to be declared illegal and consequently any demand made in pursuance thereof is to be held incompetent and liable to be annulled. The learned Advocates for the petitioners in the other three petitions have also adopted the arguments contending, that, they are also aggrieved with the issuance of the valuation tables referred to above and therefore, are entitled to similar relief.
18. On the other hand the learned Additional Advocate-General and Dr. Iqbal Seehar D.D.O. Property Tax have contended that the contentions of the learned Advocates for the petitioners is not well- founded for the reason that, the validity of section 5-A, containing similar provision, as inserted in the Sindh Urban Immovable Property Tax Act, 1958 was neither challenged before the Lahore High Court, nor there is any finding in that behalf, although the provision inserted in the Province of Punjab by Punjab Finance Act, 1998 enjoyed no protection under the Constitution as is the case in the Province of Sindh. Thus, the judgment of the Lahore High Court as well as the Honourable Supreme Court, relied upon by the learned counsel for the petitioners, are not an authority on the point of legality of the provision of law. He has submitted that the judgments relied upon by the learned Advocate for the petitioners are confined to the validity of valuation tables issued by the Provincial Government in exercise of powers under section 5-A. The notifications were declared illegal specifically for the reason that the provision contained in section 3 and section 5 of the Act were not considered and section 5-A was considered in isolation and that the valuation tables were not in accordance with the law as they were based on the valuation tables issued by Deputy Commissioners of the various Districts for the purpose of Stamp Act and Registration Act giving capital value of the properties. In the Province of Sindh the provision contained in sections 3, 5 and 5-A have been considered and a cumulative effect has been given to all the provisions while issuing the valuation tables. He has specifically contested the contention that the valuation tables issued in the Province of Sindh under the provisions of Sindh Urban Immovable Property Tax Act, 1958 are based on the valuation tables issued for the purposes of Stamp Act and Registration Act, as was done in the Province of Punjab which was held to be illegal. The learned Advocate for the petitioners contested this contention, and therefore, Dr. Iqbal Seehar D.D.O. Property Tax demonstrated by comparing the valuation tables issued for the purpose of Stamp Act and Registration Act, with the valuation tables issued under section 5-A of the Sindh Urban Immovable Property Tax Act 1958, that the consideration were entirely different and the valuation were also entirely different. The plea taken in the parawise comments to the effect that the valuation for the purpose of registration and calculation of stamp duties are on higher side and has no concern with the rental value of the properties for the calculation of the property tax has been reiterated. It has been shown that the Sindh Board of Revenue has issued another valuation table for the purpose of stamp duty, containing entirely different valuation and the said valuation has no relevance for the purpose of determining the property tax and has not been made the basis of the impugned notifications. It has been contended that an extensive survey was held all over the Province and in accordance with the guidelines given by the Provincial Government, the data calculation forms were distributed for the purpose of survey, which was prescribed by the department and full opportunity was provided to file the objections and thereafter every assessee had the right to file appeal against the valuation made on the basis of the survey. The learned Additional Advocate- General has contended that a perusal of the very detailed valuation tables for each rating area in the Province shows that neither it is arbitrary nor is based on the valuation tables for the purpose of Stamp Act and Registration Act as was the case in the Province of the Punjab and therefore, the valuation tables impugned in the petitions are not open to any exception as they are strictly in accordance with the law. He has further submitted that the learned Advocate for the petitioners have argued in generalized terms and have not brought on surface any illegality in issuing the valuation tables.
19. We have very carefully considered the contentions raised by the learned Advocates for the parties.
20. So far the validity of section 5-A inserted by Sindh Finance Ordinance is concerned we are persuaded to agree with the contention of the learned Additional Advocate-General that the Assemblies were not, in existence and the Ordinance was not issued under Article 128 of the Constitution but under the Provisional Constitutional Orders, therefore, the Ordinance was not a temporary legislation but was permanent legislation and has been provided constitutional protection, therefore, the validity thereof, cannot be challenged. So far the valuation tables issued thereunder are concerned, the judgment of Lahore High Court and the Honourable Supreme Court have no bearing because in the Province of Punjab the valuation tables which were struck down were based on the valuation tables issued for the purpose of Stamp Act and Registration Act, which had no nexus with the matters required to be considered for the purpose of determining the gross annual rental value, for calculating property tax. In the Province of Sindh the situation is entirely different. The learned D.D.O. Dr. Iqbal Seehar has fully demonstrated that the contents of the valuation tables issued by the Provincial Board of Revenue for the purpose of Stamp Act and Registration Act are entirely different from the valuation tables issued by the Excise and Taxation Department under the Sindh Urban Immovable Property Tax Act, 1958.
21. He has further fully demonstrated that a wide ranging survey was conducted. The data forms were distributed, information was collected, opportunity for filing objections were provided and thereafter on completion of this entire exercise the valuation tables were issued. Nothing has been brought to our notice which can be held to be violative of the provisions contained in sections 3, 5 and 5-A of the Sindh Urban Immovable Property Tax Act, 1958.
22. We are of the considered opinion that the petitions have no force which stand dismissed.