' MUNIB. AKHTAR, J.--- These petitions arise under the Sindh Urban Immovable Property Tax Act, 1958 ("the 1958 Act" or "the Act"). The petitioners are the Pakistan Cricket Board ("PCB") in C.P. 1364 of 2008 and C.P. 2499 of 2010, and United Bank Ltd. ("UBL") in CP 892 of 2004. Both petitioners contend that their respective properties are not liable to property tax under the Act, since they fall within the exemption contained in section 4(e), which exempts "public parks and playgrounds" from levy of tax. PCB additionally also raises a claim of exemption under section 4(a). The respondents contend that the petitioners are not entitled to any such exemption. In the first two petitions (i.e., UBL's petition, and PCB's petition CP 1364 of 2008) an order was made by consent on 14-4-2010, whereby the impugned orders/notices were set aside, and the matter was referred to the Director-General, Excise and Taxation Department, to decide the matter within five weeks after hearing the parties.
The matters were subsequently so heard, but with the same result, i.e., the claim of exemption was denied. PCB then filed another petition (i.e., CP 2499 of 2010) challenging the order made against it (an order dated 14-5-2010), whereas UBL seeks to challenge the fresh order (dated 18-5-2010 in its case) in the same petition as before. Since the claims to exemption are made in terms of the same provision of the statute, and the departmental authority (the Director-General acting pursuant to the order of the Court dated 14-4-2010) has disposed off the claims in substantially the same terms, the petitions were taken up and heard together.
2. Learned counsel for PCB submitted that PCB is a statutory body, and is mandated by its constitutive document to promote and develop the game of cricket in Pakistan. He submitted that PCB is a nonprofit organization, and all income earned by it is devoted to its primary mission, i.e., promoting and developing cricketing activities in the country. The property in question, on which PCB operates and manages the National Stadium at Karachi, has been leased to PCB by the Federation by means of a lease deed dated 6-12-1980 ("the PCB Lease"). It is a famous venue, at which international, national and local level matches are regularly organized and played. Learned counsel submitted that the property is a "public playground" within the meaning of section 4(e). He contended that the exemption was being wrongly denied on the ground that commercial activities were being carried out there, and the only basis for 'this claim was that the public had to purchase tickets to watch the matches, and also had to pay for certain other activities organized at the stadium by PCB. Learned counsel emphasized that all net revenues were either ploughed back into the property itself, or were otherwise used to fulfil PCB's statutory mandate. He further submitted that in fact, property tax was first demanded from PCB only in 1995. There was no basis whatsoever for the claim that tax was payable. Learned counsel emphasized that the property was, and is, being used for public purposes only. He submitted, relying on Pakistan v. Province of Punjab and others PLD 1975 SC 37 (a case that arose under the 1958 Act as applicable in Punjab), that the mere charging of- a fee (in the present case, the tickets required to be purchased by the public) did not derogate from the public purpose to which the property was being put. He submitted that PCB also runs a coaching and training centre at the property at which "youngsters and budding cricketers", the potential future stars of the Pakistan team are taught the game of cricket. Learned counsel also contended that apart from section 4(e), PCB was also entitled to exemption under section 4(a) since it was merely the lessee of the property, which remained owned by, and vested in, the Federal Government. Learned counsel submitted that the departmental authorities had completely failed to appreciate the matter in its correct legal and factual perspective, and the various orders made; including that of the Director-General (as noted above) were liable to be set aside. Finally, learned counsel also submitted that although the PCB Lease was for 104.5 acres, the land actually in its possession was no more than 45.7 acres, the rest being with other organizations and entities (who were encroachers from PCB's point of view). Thus, if at all property tax was payable by PCB, it was only in relation to the latter area, and not the entire area putatively leased out.
3. Learned counsel for UBL submitted that the property in question in his case had been leased to UBL on or about 21-12-1988 ("the UBL Lease"). The property had been specifically leased out as a playground". Learned counsel submitted that UBL had built and established a sports complex on the property, at which facilities for sports such as cricket, hockey, football, tennis, basketball, and table tennis were made available. These facilities were not reserved for the bank's employees or its purposes, but were made available to the public at large on a first come, first served basis, without any discrimination or reservation. Like learned counsel for PCB, learned counsel for UBL also contended that the mere charging of a fee (in his case, for use of the sports facilities) did not derogate from the public purpose to which the property was being put. Thus, his case was also that the property was a "public playground", and entitled to exemption under the Act.
4. Learned Additional A.-G., who was ably assisted by the learned Assistant A.-G., strongly opposed the petitions, and took a preliminary objection. She submitted that the order of the Court dated 14- 4-2010 referred to above was a remand order, which having set aside the earlier impugned orders/notices, had sent the matters back to the Director-General for a decision afresh. Thus, the petitions in which the said ofder was made, being CP 1364 of 2008 (filed by PCB) and CP 892 of 2004 (filed by UBL), had been disposed of. If at all the latest orders of the Director-General could be challenged, this could only be done by means of a fresh petition, and not by resurrecting petitions that stood disposed of. She further submitted that the latest orders ought to have been challenged by way of the available statutory remedies, and not directly through constitutional petitions. On the merits, learned A.A.-G. Contended, without prejudice to the foregoing, that the decision taken by the departmental authorities, including in particular, the latest orders of the Director-General, did not suffer from any legal or factual infirmity. The properties were being managed as commercial operations, from which revenue was being earned by the petitioneRs, Thus, the properties were not being used by the petitioners for a "public purpose", and were clearly not entitled to exemption under section 4(e). The impugned orders being unexceptionable, no interference was necessary by this Court.
5. We have heard learned counsel for the parties, gone through the record with their assistance, and considered the case-law relied on by them. Insofar as the preliminary objection is concerned, it obviously does not apply in PCB's case, since a fresh petition was filed by the latter specifically impugning the Director-General's order. We are of the view that although the objection would ordinarily have required consideration in UBL's case, this is not necessary in the facts and circumstances of the present case. The reason is that the UBL petition is based, and was argued, on essentially the same points and grounds as those taken by PCB. To non-suit UBL, and force it to file a fresh petition, would be (at least in the present case) to elevate from over substance, and lead to a needless multiplicity of litigation. Accordingly, the preliminary objection cannot be accepted, and it is not therefore necessary to consider in detail the case-law relied on by learned A.A.-G. With regard to what constitutes a remand order, and the effect thereof. The further objection that departmental remedies ought to be properly exhausted is also without merit, since the latest impugned orders are made by the Director-General (who sits at the apex of the departmental hierarchy) and indeed, are orders-in-revision. No further or other departmental proceedings are therefore possible or would serve any useful purpose.
6. Before proceeding to consider the rival submissions of the parties on the merits, one point must be kept in mind. The 1958 Act is a fiscal statute, which imposes a tax on the annual value of urban immoveable property. The petitioners seek exemption from this tax. The principles of interpretation in relation to exemption clauses, and their application, are well-established. As presently relevant, three principles in particular need to be mentioned. Firstly, the onus lies on the taxpayer to show that he is entitled to the benefit of the exemption. Secondly, if two reasonable interpretations of the exemption are possible, then the B one that favours the Revenue, even if it goes against the taxpayer, will be adopted (which of course, it invariably would). And the third principle is that if the taxpayer fairly comes within the meaning and scope of the exemption, then he will not be denied the benefit thereof by unduly or unnaturally straining the language of the statute, or by reading any words, or intent or objective, into the same.
7, The primary case of the petitioners is based on clause (e) of section 4, which exempts "public parks and playgrounds". It is common ground that the word "public" qualifies both "parks" and "playgrounds". The word "public" remained the focus of submissions by learned counsel for the parties, and much attention was given to what was meant by a "public purpose". Various authorities were cited in this regard. However, and with respect, the word "playground" also requires consideration, since that, after all, is the property entitled to the exemption. In our view, therefore, the following three questions need to be addressed for a proper resolution of the issues raised by the petitioners:
(a) What is a "playground" for the purposes of section 4(e)?
(b) What is a "public" playground within the meaning of the foregoing provision?
(c) Do the properties of the petitioners come within the scope thereof?
8. The first two questions require a determination of the correct legal interpretation and application of the exemption, and are therefore taken up together. The word "playground" is not defined in the Act. The New Shorter Oxford English Dictionary (1993 ed.; hereinafter the "SOED") defines it in the following terms: "a piece of ground used for', playing on esp. One attached to a school; transf. Any place of recreation". Reference must also be made to the definitions of "playing-field" and "stadium", which as presently relevant, are as follows:- " playing-field' . a field or piece of ground for playing on, esp.IE one attached or belonging to a school." "'stadium'. An-athletic or sports ground or arena with tiered IF seats or terraces for spectatoRs,"
' Reference may also be made to some other dictionary meanings of "playground". Tints, the on- line version of the well-known Merriam-Webster Dictionary defines the word as follows:--- "1: a piece of land used for and usually equipped with facilities for recreation especially by children.
2: an area known or suited for activity of a specified sort (a vacation playground)"
' As will be seen, although the primary meaning of "playground" is a area where children can play, the word has acquired a more expansive meaning, which goes beyond use of the playground by children alone. The second use identified in the Merriam-Webster is not appropriate, since that is in relation to an area in a general or generic sense (e.g., a place being described as a "playground for the rich or famous", etc.), and not in relation to an identifiable or specific property, which of course is the context of the 1958 Act. Finally, reference may also be made to the Chambers Combined Dictionary Thesaurus (1995 ed.), which defines "playground" as follows:-- "playground noun 1 an area for children's recreation, especially as part of a school's grounds. 2 a resort for people who take frivolous recreation seriously."
' The basic meaning and concept of a "playground" therefore is a property or piece of land earmarked for, and (perhaps) containing facilities to be used in connection with, playing or for recreational purposes. A playground may well consist of, or at least contain or have areas earmarked for, specific sports or other activities. Thus, a playground may contain one or more playing-fields.
9. The next point that requires consideration is the meaning of the word "public". Learned counsel for the petitioners relied on Pakistan v Province of Punjab and others PLD 1975 SC 37, where the Supreme Court referred with approval to Hamabai Framjee Petit v Secretary of State for India-in- Council AIR 1914 PC 20, and observed as follows:--- "This is a classical decision of the Privy Council wherein "public purpose" has been defined as including "an object or aim in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned". I have no cavil with this enunciation and if a property is really used for a public purpose then the fact that a fee is levied for the user of such property would not render the user a non-public purpose, Thus, for instance, the provision of slaughter houses at which a fee is charged for slaughtering cattle will not render the slaughter-house a merely profit-making concern. It would still remain a premises used for a public purpose." (pg. 47)
' Learned counsel also referred to Ziauddin Hospital Trust v Director-General/Commissioner, Excise and Taxation and another PLD 2001 Kar. 52 (DB). But it appears that on appeal, that decision was set aside by the Supreme Court, and the matter remanded for decision afresh (order dated 6-4- 2009 in CA 1345 of 2001 and connected matter, Government of Sindh v Ziauddin Hospital Trust (unreported)). Two points are to be noted with regard to the reported decision of the Supreme Court. Firstly, the mere charging of a fee does not necessarily derogate from the public purpose to which the property was being put. However, it is to be noted that in this context, the Supreme Court has expressly referred to the "use" of the property, which, in our view, can only mean use by the public. In other words, the property must actually be used by the public, and such use must be for a "public purpose". The latter phrase of course, has the meaning as defined by the Privy Council, and approved by the Supreme Court.
10. In our view, keeping the foregoing factors in mind, a "public playground" is one which must have the following characteristics: (a) members of the public-at-large must be entitled to use the playground (and it is immaterial that that user is conditional upon some fee being paid), and (b) they must actually be able, themselves, to use the playground, in such manner as they deem fit.
The first characteristic is derived from the decision of the Supreme Court. If the object or aim of the use to which'the playground is to be put is "public" (i.e., it is an aim or object in which the "general interest of the community" is "directly and vitally concerned") then obviously, members of the public must be entitled to use the property. The second characteristic is derived from the ordinary meaning of "playground" considered above. A ground can hardly be called a playground if it cannot actually be used as such by the persons who are entitled to go to, or enter, it. In the present case, that would of course, be members of the public at large. And their use of the playground must be in such manner as they themselves deem fit, since otherwise the "recreational" or "play" element, which is essential for a "playground". Would be missing. In other words, the use of the playground must not be restricted to some formal, structured usage, which is imposed on the users (by, e.g., the owner or operator of the property); rather, it must be informal and unstructured, and left to the users themselves. To be more precise, even if it is possible for the playground to be used in a formal and structured manner, the members of the public must have the choice of either opting for such use, or of using the playground as they please. This is not to say that the users (or any particular individual or group) may not choose to use the, playground in a regular or regulated manner; they may well do so. But, and this is crucial, the choice must be theiRs, For example, if the playground has a walking or jogging track, individual users may well follow their own specific and regulated daily regimen in using the track. Equally, if an area is set aside for, e.g.; playing cricket, a group may well go there daily to play the game. But the choice in this regard must be always be theirs, and their use must not be limited only to, e.g., a specific program that is regulated or imposed by some outside authority or third party.
11. We now take up the actual facts and circumstances of the two cases, and first turn to the PCB property. The relevant clauses of the PCB Lease state as follows:--- "(1) That the lessee [i.e., PCB] shall utilize the land and premises/apartments already existing there for the purposes of Sports activities.
(2) That the Lessee shall utilize 40.00 acres of land out of said 104.5 acres for the purposes of Clubs, shops, residential plots, Multi-storeyed buildings or building for residential and or commercial purposes."
' As is obvious, the use to which the property can be put in terms of clause (2) does not come within the meaning of a "public playground". That leaves only clause (1). That use can be divided into two categories. The first, and primary, use of the property is as a stadium. In our view, and as is clear from the meaning of the word given in the SOED, a "stadium" is not a "playground". It is an arena where spectator events are held. The public is present in the form of the crowd of spectators, but such presence can hardly be regarded as "use" of the stadium by the viewers, at least in the sense as required by. Section 4(e). This is so notwithstanding that the spectators may well feel that they are "participating" in the event; certainly, no one who has watched a closely contested match in a stadium can forget the thrill of it. Learned counsel for PCB submitted that PCB performs an important role and function in the development and promotion of cricket. That may be so, and cricket enthusiasts in the country, who are legion, may well regard PCB's role to be of critical national importance. However, we are here concerned only with the correct interpretation of an exemption clause in a fiscal statute, a matter admittedly much drier than the facts to which the clause must be applied. The difference between a "stadium" on the one hand, and a "playground" on the other is clear, and in our view, simply too far to be abridged in the context of section 4(e).
The other use of the property that was referred to was as a coaching or training center for "youngsters and budding cricketers" (as learned counsel put it). In our view, that use also does not bring the matter within the meaning of a "playground". The reason is that such a center does not permit, or have, I the second characteristic of playgrounds mentioned in para 10 above, namely, the use of the facility or property by the members of the public by themselves, in such manner at they deem fit. A training or coaching centre follows a structured regime imposed on the trainees by the, centre itself (which would here mean PCB or persons authorized by it). It is purposeful activity, aimed at a specific goal or objective. Indeed, given PCB's charter, it cannot be anything else. The essential element of mere "play" or "recreation" that is a necessary characteristic if the property is being used as a "playground" is missing, or least is not permissible as a dominant element of the use of the property. In our view therefore, since the PCB property is a stadium, with a training or coaching center as an adjunct, it cannot be regarded as a "playground" within the meaning of section 4(e).
12. The other basis on which exemption from property tax is claimed by PCB is in terms of section 4(a). That exemption is available if the property is vested in the Federal Government, except in the case of land leased in perpetuity. In the present case, the land admittedly vests in the Federation (the lessor being the. President acting through the concerned authority), and the PCB Lease is to run for 99 yeaRs, In Muhammad Sham v Pakistan and others 2002 M LD 1270, a learned Division Bench of this Court was concerned with demand under the 1958 Act in respect of a property which vested in the Federal Government, but had been leased out to the petitioner (through the Evacuee Trust Board) for a period of 30 yeaRs, It was held that since the property vested in the Federal Government, it was entitled to the exemption contained in section 4(a). In the present case also, the lease is not in perpetuity. But for 99 yeaRs, As noted above, one of the principles for interpreting and applying exemption clauses is that if the taxpayer comes fairly within the clause, then he cannot be denied the benefit thereof by giving the words a strained or unnatural meaning. A lease for a fixed period, howsoever long, is not a lease in perpetuity, which is what the plain meaning of section 4(a) requires for the exemption to become inapplicable. Accordingly, in our view, PCB's case is covered by section 4(a), since L the property leased to it vests in the Federal Government, and has not been leased out in perpetuity.
13. We now turn to consider the case of the other petitioner, UBL. Clause 8 of the UBL Lease provides in material part as follows:--- "The said plot and the building and structures thereon shall be used for playground purposes only and shall not be used diverted to other use without the previous consent in writing of the Lessor. For breach of this covenant Lessor shall be entitled to forfeit the lease and the amount's paid and resume the plot."
' It is to be noted that the Lease specifically refers to the property being used for "playground purposes". As noted above, it is UBL's case that it has provided facilities for many different sports on the property, and these facilities are made available to the public on a first come, first served basis, without any discrimination or reservation. Along with the petition, UBL has placed on record a number of documents that show how the sports facilities are being used by different associations and entities, and also by members of the general public. These facts have not been seriously controverted by the respondents. It appears that their M. Objection is essentially that the property is being used for commercial purposes, which, according to them, is evidenced by the fact that UBL charges for the use of the facilities. As already noted above, the Supreme Court has authoritatively held that the mere charging of a fee is not in itself sufficient to derogate from the public user of a property. In our view. UBL's property has the two characteristics of a "public playground" noted above. Firstly, the facilities are made available to the public without discrimination and on a first come first served basis. The public can mean (and apparently does mean) either persons using the sports facilities for their individual benefit, or companies, associations or other entities using the facilities generally for their own purposes, e.g., to hold intra-company, or even inter-association tournaments. Secondly, the use of the facilities is not limited to such formal, structured or regulated manner as may be decided or imposed by UBL: the members of the public apparently are able to use the facilities in such manner as they deem fit. Such usage can be as specific, organized and regular, or as individual and sporadic as is decided by the public itself. Thus, both the elements of a "public playground" are to be found in respect of the UBL property. In our view therefore, it is entitled to the benefit of the exemption under section 4(e).
14. Accordingly, on account of the foregoing discussion and analysis, we are-of the view that both PCB and UBL are entitled to exemption from property tax for their respective properties, though under different provisions, with PCB being entitled to the exemption in terms of section 4(a) alone, while the UBL property is exempt under section 4(e). Accordingly, these petitions are allowed, and the impugned orders of the Director-General dated 14-5-2010 and 18-5-2010 respectively, and all other orders/notices imposing or demanding property tax, are set aside and quashed. There will however, be no order as to costs.