' This judgment will dispose of Writ Petition Nos. 3514/82, 1251/83, 2918/83, 3193/83, 4007/83 and 107/84, since a common question of law is involved in all these writ petitions.
2. Briefly the facts are that the Government of the Punjab vide Notification No, TAK(E & T) : 3(55/79- 903, dated 15th July, 1980, under section 3(1) of the Punjab Urban Immovable Property Tax Act, 1958, directed the levying of property tax in the rating areas of Muridke, Narang, Shahkot, district Sheikhupura. Bhai Pheru district Kasur, Kharian district Gujrat, Bhalwal district Sargodha, Pir Mahal district Faisalabad, Jampur, Rajanpur, district Dera Ghazi Khan and Alipur district Muzaffargarh, with immediate effect. The decision was communicated, inter alia, to all the Chairmen of the Municipal/Town Committees of the aforesaid towns.
3. As alleged in Writ Petition No, 3514/82, the aforesaid Notification dated 15th July, 1980 was taken up by the Town Committee Shahkot for consideration at its meeting held on 25th August, 1980. It was resolved by the Committee that as the financial condition of the inhabitants was hopelessly poor so the Government was to be approached to exempt the town of Shahkot from the levying of the property tax. The matter again came up before the Government and the Government after taking into consideration the resolution passed by the Town Committee Shahkot, reiterated its stand and explained that there was a good justification for the levying of the property tax in Shahkot town which decision was communicated to the Town Committee Shahkot through the Deputy Secretary (Rural) Local Government and Rural Development Department vide No, TAX (E & T : 3(55:/79-404). Once again the Shahkot Town Committee in its meeting held on 16th June, 1981 considered the letter of justification by the Government for the levying of the property tax in Shabkot town and vide its resolution (Annexure 'C') stuck to its earlier decision.
4. It seems the Government did not accept the suggestion/request of the Town Committee Shahkot for not levying the property tax, therefore, subsequently respondent No, 2 assessed the tax and sent demand notices among others to the-petitioners Nos. 4, 6 and 21, requiring them to deposit the tax in the Government treasury. A declaration has been sought to the effect that the Notification dated 15th July, 1980 declaring the Town Committee Shahkot as a Rating area and the consequential demand notices for the payment of property tax, are without lawful authority and of no legal effect.
5. In Writ Petition No, 1251/83 similarly the Bhai Pheru Town Committee did not approve of the action of the Government to levy the property tax in the Bhai Pheru town in its meeting held on 22-4-1980 and the Government was requested to exempt the Bhai Pheru town from the levying of the property tax, on the ground that the majority of the houses/ residential buildings belonged to the Auqaf Department ' . a large number of houses were built by mud and there was no industrial concern. In this regard the inhabitants of Bhai Pheru town also made a representation for the withdrawal of the imposition of the property tax which representation was forwarded by the Town Committee Bhai Pheru to the Governor of the Punjab but it seems, that nothing was done towards that and respondent No, 2 imposed the tax upon the petitioners and required them to pay the tax with tine. The Notification as well as the demand notices have been impugned in this writ petition praying that the same be declared to have been issued without lawful authority and of no legal effect.
6. Writ petition No, 2918/83 embraces almost the same facts as are enumerated in Writ Petition No, 3514/82 except that the petitioner has prayed that the levying of the gain tax by respondent No, 2, the Excise and Taxation Officer, in pursuance of the notification No, TAX(E & T) 3(55/ 79-903, dated 15th July, 1980 declaring the town of Shahkot as a Rating Area, be declared as without lawful authority and of no legal effect.
7. In Writ Petition No, 3193/83 the decision of the Government as to the levying of the property tax vide notification dated 15th July, 1980 was implemented in the Sheikhupura town and under that the petitioner had been paying the property Tax assessed by the concerned department of the Government. Now respondent No, 2 has issued a notice (Annexure `A') to the petitioner notifying the fact that respondent No, 2 intends to enhance the annual assessment and the property tax thereon. The petitioner has prayed that the levying of the taxes including the property tax on the petitioner, the issuance of the notice for enhancement of the assessment and the property tax thereon, be declared to be null and void as having been made without lawful authority.
8. In Writ Petition No, 4007/83 more or less the same facts are involved inasmuch as after the decision of the Government to impose the tax in Narang Mandi was conveyed to Town Committee Narang Mandi, it resolved and suggested in its meeting held on 30-8-1980 that in view of the special circumstances of the town, the Government should not have levied the tax in Town Committee Narang Mandi but the Government explained that there was a good justification for the imposition of the property tax and despite the opposition of the Town Committee Narang Mandi, respondent No, 2 made assessm ent and sent demand notices to the petitioners requiring them to pay the tax. The notification levying the property tax as well as the demand notices have been called in question in this writ petition.
9. In Writ Petition No, 107/84 the facts are precisely the same as given above in Writ Petition No, 3514 of 1982. However, respondent No, 2 under the provisions of the Punjab Capital Gain Tax Rules, 1964 issued impugned notices to the petitioners for the furnishing of returns so as to determine the gain tax on the basis of various sales made by the petitioners. The petitioners have prayed that the notices for the levying of the gain tax issued by respondent No, 2, be declared to be without lawful authority, null and void and of no legal effect.
10. The learned counsel for the petitioners Mr. Amjad Hussain Syed, Advocate, has contended that the Government cannot impose taxes through Excise and Taxation Department acting under the West Pakistan Urban Immovable Property Tax Act, 1958 because the power to levy the tax has now been given to the Local Councils under the Punjab Local Government Ordinance, 1979. He has referred to section 137 and second Schedule of the Ordinance. He has next contended that the two enactments i,e, Act V of 1958 and Ordinance VI of 1979 cannot co-exist for the reason that they are inconsistent with each other and as a result thereof the subsequent Ordinance impliedly repeals the Act of 1958. He has further submitted that the bar created by the legislature under section 11 of the Punjab Finance Ordinance, 1971 which was later on amended under section 7 of the Punjab Finance Act, 1972 whereby the local councils under the Punjab Peoples Local Government Ordinance, 1972 were prohibited from levying the tax, never extended to the Ordinance VI of 1979 b) any further amendment although the clause "subject to any other law" as incorporated in section 137 of Ordinance VI of 1979 was also part of section 132 of the Punjab Peoples' Local Government Ordinance, 1972. Sections 3 and 3-A of Act V of 1958 do not impose any bar or restriction on the power of the local councils from levying or charging any property tax. The learned counsel, t bring out the impact of his contention, has referred to the history oIthe law as to the pOwer to levy the property tax.
11. The learned counsel has read out the preamble of the Punjab Local Government Ordinance, 1979 and has submitted that all the laws and regulations relating to the Local Government including the taxation laws have been enforced through Ordinance VI of 1979 and the power to levy the tax on the property has been given to the Local Councils once again under section 137 which reads as under :-- "Taxes to be levied.-A local council subject to the provisions of any other law may, and if directed by Government, shall levy all or any of the taxes enumerated in the second schedule."
He has further maintained that there is no provision in any other law which takes away the power to levy the tax from the Local Councils as previously the Punjab Finance Ordinance, 1971 as amended in 1972 had taken away the power and since there is no such provision now in the field, therefore, the provisions of Ordinance VI of 1979 do hold the field. While analysing the legal position of Act IX of 1963 (West Pakistan Finance Act, 1963) and the West Pakistan Capital Gains Tax Rules, 1964 framed thereunder relating to the levying of tax on profits or gain arising from the sale, exchange or transfer of immovable property, the learned counsel has maintained' the same argument that the Ordinance VI of 1979 impliedly repeals the provisions of section 16 of the West Pakistan Finance Act, 1963 and the rules framed thereunder being an exclusive law holding the field and the provisions of the latter being inconsistent therewith. The learned counsel has relied upon Muhammad Akram and 12 others v. Munkipal Corporation, Lyallpur and another (1), in this case the observation made while viewing the provisions of section 138 of the Local Government Act, 1975, which provision is similar to the provision as given in section 137 of the Ordinance VI of 1979, is that an independent power has been given to the Local Councils to levy tax under section 138 of the Local' Government Act but after reproducing the section the learned Court has distinguish observed that the power given is subject to the provisions of other laws. Rest of the judgment is not relevant for the point in dispute here. The last contention of the learned counsel is that section 4 of the Ordinance VI of 1979 overrides the other laws when it enacts that the provisions of the Ordinance shall take effect notwithstanding anything inconsistent therewith contained in any other law. In support of this, the learned counsel has relied upon Muhammad Ghias and others v. Market Committee, Kamalia and another (2), in which it has been held that the Punjab Local Government Ordinance, 1979, is an enactment of a latter date. It contains a specific superseding clause. No other law of an earlier date, such as Market Ordinance of 1978, therefore, could override its provision. As to the position of both the laws i,e, the provisions of Act V of 1958 and the Ordinance VI of 1979 the learned counsel has relied upon Craies on Statute Law seventh Edition page 368 which is to the following effect :- "Where a new Act is couched in general affirmative language, and the previous law can well stand 'with it, and the language used in the later Act is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new law may stand together .
"But where affirmative words in a later Act are, as was said in Stradling v. Morgan, such as necessarily import a contradiction-that is to say, where it is clear that it must have been intended that the earlier and later enactments should be in conflict--the two cannot stand together, and the second repeals the first."
' As to the expression "subject to any other law" the learned counsel has tried to equate the same with that of the provision as given in Article 98(1) of the Constitution of 1962 which provides that the High Court will have only such jurisdiction as is conferred by the Constitution or the law by referring to the minority judgment in Muhammad Khan v. Border Allotment Committee (3), wherein it has been held that Article 98(1) of the Constitution cannot be read as saying that by law the jurisdiction conferred by the Constitution can be taken away. The words "subject to the Constitution" in Article 98(1) mean that the jurisdiction provided for in Article 98(1) can be exercised except where the Constitution itself creates a bar ' The words 'subject to this Constitution' do not mean subject to a law framed by virtue of the power granted to a legislature by the Constitution the jurisdiction granted by Article 93 is subject only to this Constitution and not to this Constitution and the law." ; Ch. Abdul Shani v.
(1) 1979 CLC 361 (2) PLD 1982 Lah. 710
(3) PLD 1965 SC 623 Islamic Republic of Pakistan (1), wherein it has been observed that the words `subject to law' occurring in Article 18 of the Constitution (1956), do not mean that there may be a law which would regulate the actual performance of pilgrimage, for the actual performance is a ritual which itself constitutes the practice of religion. What is intended to be meant is that if in the performance of a religious duty certain secular steps have to be taken, then these steps may be regulated by law.
12. The learned counsel for the petitioners in Writ Petition No, 4007 of 1983, has submitted that the Government was to pay 85 per cent. Of the tax after deducting 5 per cant as collection charges under section 3-A of the Punjab Urban Immovable Property Tax Act, 1958. The legislature thought it fit to give the power to impose tax to the local councils through the chosen representatives instead of its collection by the Government and then its distribution to the local councils.
' The Act V of 1958 and the Local Government Ordinance, 1979 are inconsistent, so cannot exist together, therefore Ordinance VI of 1979 being later in time impliedly repeals Act V of 1958. As to the implied repeal in various situations the learned counsel has relied upon Pehlwan Khan v. J. F. Elahi (2), Abul A'la Maudoodi v. Government of West Pakistan (3), Abdul Samad lqbal Ahmad Khan (4), S. A. Matin v. Province of Sind (5), Muhammad Ghias and others v. Market Committee, Kamalia and another, Maxwell On Interpretation of Statutes (Twelfth Edition), page 193, Statutory Construction by Crawford, Para. 311, page 631.
' He has further maintained that as the legislature had the complete knowledge of the existing law, therefore, it was also aware of section 11 of the Punjab Finance Ordinance (XI of 1971). The words 'subject to any other law for the time being in force', were present in section 132 of the Peoples' Local Government Ordinance VIII of 1972 which came into force on 12th April, 1972. But in spite of that the legislature in its wisdom thought that absolutely necessary to amend the Punjab Finance Ordinance, 1971 by section 7 of the Punjab Finance Act I of 1972. After coming into force of the Punjab Local Government Act XXXIV of 1975 and Local Government Ordinance, 1979, the legislature did not make any amendment which means that the legislature intentionally omitted to make any amendment as it wanted to give the power to levy tax to Local Councils. It was not a mere accidental or consequential failure to amend the law. The phrase "subject to any other law" means a law for the imposition of tax by local councils and not any other agency.
' The next submission of the learned counsel is that if the power to levy the tax is allowed to remain with the Government as well as the local councils, this will amount to double taxation. Which cannot be allowed. As to the permissibility of the double taxation the learned counsel has relied upon Maxwell on Interpretation of Statutes (Twelfth Edition) page 140 ; Statutory construction by Crawford para. 257 at page 506; (1953) 1 AER159,(1964) 2 AER 691 and 1973 S CMR 445.
13. The last submission of the learned counsel is that no notice was given to the petitioners by the Government while declaring inter alia the town of Narang Mandi as a rating area which is against the rules of
(1) PLD 1958 Lah. 584 (2) PLD 1962 Lah. 751
(3) PLD 1964 SC 673 (4) PLD 1972 Lah. 41
(5) PLD 1976 Kar. 36 natural justice. In fact that the petitioners have been condemned unheard. The poor conditions prevailing within the town do not warrant any justification for the imposition of the property tax.
14. The learned Additional Advocate-General appearing on behalf of respondents 1 and 2, has submitted in reply that the local councils which once possessed the power to levy the property tax were debarred from so levying under the Punjab Finance Ordinance, 1971 and the Punjab Finance Act, 1972. According to the amended provisions of the West Pakistan Urban Immovable Property Tax Act, 1958, under the Punjab Finance Act, 1975, the Government out of the tax collected under the Act from within the limits of a Municipal Committee, a Town Committee or a Cantonment Board was after retaining 5 per cent thereof as collection charges to pay 85 per cent of the balance to such committees, so unto Punjab Finance Act, 1975 a particular state prevailed. The provision barring the levying of tax continues till today because that is alive and a valid piece of legislation. The omission of the legislature to mention the Punjab Local Government Act, 1975 or the Punjab Local Government Ordinance, 1979 in section 11 of the Punjab Finance Ordinance, 1971 by way of a consequential amendment after the enactment of the Punjab Local Government Act, 1975 or the Punjab Local Government Ordinance, 1979 would not have the effect of nullifying the provisions of section 11 of the Punjab Finance Ordinance. 1971, in order to give proper effect the Punjab Local Government Act, 1975 and the Ordinance VI of 1979 will be read in the Statute which otherwise includes such bodies as existing by that time. The intention of the legislature to continue the bar imposed upon the local councils through the Punjab Finance Ordinance, 1971 through subsequent enactments is clear from section 5 of the Punjab Finance Act, 1975. Those are accidental omissions as not to carry the amendments to that effect. While construing the provisions of section 11, these bodies will be treated as the same bodies though coming into existence under the enactment in 1975 and 1979 because these are not new laws but are the enactments of the same subject. He has relied upon Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and another (1), wherein the learned Supreme Court while examining the Estate Duty Act (X) of 1950, noted down the omission of the legislature to make consequential amendments in section 57 of the Act which were rendered necessary by amendments of sections 58 and 59. The omission was recorded as accidental. The learned Court gave effect to the manifest intention of the legislature by reading into section 57 the words "making up for the omission".
' He has next submitted that the Local Government Act, 1975 and the Punjab Local Government Ordinance, 1979, would not have the effect of impliedly repealing the West Pakistan Urban Immovable Property Tax Act, 1958 vis-a-vis the levying of the property tax for the reasons that the Act V of 1958 is a special law dealing specifically and exclusively with the tax on the urban property.
The Local Government Act and Ordinance, are a general law. He has referred to Maxwell on Interpretation of Statutes Eleventh Edition page 168 whereas it has been said that the general law gives way. To the special law. The presumption is always against the implied repeal and the rule is that the latter Act will not repeal the earlier by implication which is an exception. He has referred to Maxwell on Interpretation of Statutes at page 162 where it is said that the "repeal by
(1) PLD 1962 SC 335 implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason." On page 160, it is laid down that generally when the latter enactment is worded in affirmative terms only, without any negative expressed or implied, it does not repeal the earlier law. It has been further submitted that in so far as the taxation is concerned there is no bar on the same item being taxed more than once. In the present case even if one Statute is not made subject to the other, both the Statutes can validly remain in force at the same time and the agencies authorised by both the Statutues will be within their jurisdiction separately to levy taxes under the respective Statutes, nevertheless for the convenience of the public the provincial legislature through the Punjab Finance Ordinance, 1970 as amended by the Finance Act, 1971 and as further qualified by the Punjab Finance Act, 1975, has declared that the tax on property shall be levied and collected by the Provincial Government under Act V of 1958 and that after the same has been collected by the Provincial Government that shall be divided between the Provincial Government and the Local Councils concerned in the ratio prescribed by section 3-A of Act V of 1958 (added through Punjab Finance Ordinance, 1971) and as amended upto the Punjab Finance Act, 1975. In respect of the Finance Act, 1963 as to the levying of a Capital Gain Tax, the same reasoning has been employed so as to say that it is a special law as against the Punjab Local Government Ordinance, 1979 which is a general law and as such must give way. According to the learned Additional Advocate-General the writ petitions disclose no case, therefore, the same are liable to be dismissed.
15. Raja Muhammad Muzaffar, Advocate appearing on behalf of respondent No, 3 in Writ Petition No, 3193/82 has adopted the arguments advanced by the learned Additional Advocate-General and has in addition referred to Article 279 of the Constitution of the Islamic Republic of Pakistan, 1973 which says that notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencing day shall continue to be levied until they are varied or abolished by Act of the appropriate legislature.
16. Before the contentions of both the learned counsel are examined a reference to the state of law and its development as to the levying of A property tax is most called for.
' Act V of 1958 West Pakistan Urban Immovable Property Tax Act, 1958 was enacted with a view to consolidating the law relating to the levy of tax on urban immovable property in the Province of West Pakistan. Under section 3, the Provincial Government was empowered to specify urban areas through a notification where the tax was to be levied under the Act, chargeable according to the scale set therein. Under section 60 read with Schedule V of the Basic Democracies Order, 1959, the local councils were empowered to levy all or any of the taxes, rates, tolls and fees mentioned in the fifth schedule, with the previous sanction of the Government and the Commissioner as the case was to be. The schedule included the subject of property tax. According to the Municipal Administration Ordinance, 1960 (under section 33) a municipal committee with the previous sanction of the Government was empowered to levy all or any of the taxes, rates, tolls and fees mentioned in the third schedule. The schedule included the subject of property tax. Under section 11 of the Punjab Finance Ordinance (XI) of 1971 the powers to levy the tax on buildings and lands by the municipal committees and the town committees were taken away which section enacted :- "Notwithstanding anything to the contrary contained in the Municipal Administration Ordinance, 1960, or the Basic Democracies Order, 1959, or the rules made thereunder, no tax on any building or land situated within the limits of a Municipal Committee or a Town Committee shall be charged, levied or collected by such Municipal Committee or Town Committee, as the case may, with effect from 1st of July, 1971.
' By section 12 an amendment in the West Pakistan Urban Immovable Property Tax Act, 1958, in its application to the Province of the Punjab, was made in section 3 for subsections (2) and (3) as to the scale and the remission thereof, charging or levying the tax. Section 3-A a new section was added to the above-said Act wherein it was expressed that "out of the tax collected under the Act from within the limits of a municipal committee or a town committee the Government shall after retaining five per cent thereof as collection charges, pay 40 per cent, of the balance to such municipal committee or town committee, as the case may be."
' Under section 132 of the Punjab Peoples Local Government Ordinance (VIII) of 1972 published on 12th April, 1972, the power as to the taxation as mentioned in the third schedule was again given to the local councils but the power so given was expressed as "subject to the provision of any other law for the time being in force". By section 7 of the Punjab Finance Act (I) of 1972 published on 29th June, 1972, section 11 of the Punjab Finance Ordinance, 1971 was amended and the substituted provision thereof was :- "11. No levying of tax on buildings and lands by local bodies.-Notwithstanding anything to the contrary contained in the Municipal Administration Ordinance, 1960, the Basic Democracies Order, 1959, or the Punjab Peoples' Local Government Ordinance, 1972, or any rule made thereunder, as from 1st of July, 1971, no local body shall levy, charge or collect tax on any building or land situated in any urban area in respect of which a notification has been made under subsection (1) of section 3 of the West Pakistan Urban Immovable Property Tax Act, 1958 : ' By section 8 of the Punjab Finance Act, West Pakistan Urban Immovable Property Tax Act, 1958, in its application to the Province of the Punjab, section 3 of the Act was amended and also section 3- A. Under the amended section 3-A out of the tax collected by the Government within the limits of a local body after deducting five per cent thereof as collection charges 40 per cent of the balance was payable to such a body.
' Under section 138 of the Punjab Local Government Act (XXXIV) of 1975, published on 3rd April, 1975, a local counsel was again empowered to levy all or any of the taxes as enumerated in the second schedule. This section is reproduced here :- "138. Taxes to be levied.-A Local Council subject to the provision of any other law may, and if directed by the Government, shall levy all or any of the taxes enumerated in the Second Schedule."
' The section 233 of the Punjab Local Government Act, 1975, repealed, inter alia, Basic Democracies Order, 1959, Municipal Administration Ordinance, 1960 and the Punjab Local Government Ordinance, 1972. The schedule included the tax on annual rental value on buildings and lands and on the transfer of ,mmovable property.
' By section 5 of the Punjab Finance Act (XL) of 1975 published on 28th June, 1975, section 3 of the West Pakistan Urban Immovable Property Tax Act, 1958, was amended. The substitute thereof reads as :- "3-A. Out of the tax collected under the Act from within the limits of a Municipal Committee, a Town Committee or a Cantonment Board, the Government shall after retaining 5 % thereof as collection charges, pay 85,/, of the balance to such Municipal Committee, Town Committee or Cantonmeut Board, as the case may be."
17. 'Act IX of 1963 (West Pakistan Finance Act, 1963) was enacted to continue, levy or abolish certain taxes and duties in the West Pakistan. Section 16 of it reads as : "(1) A capital gains tax shall be levied on any profits or gains arising from the sale, exchange or transfer of immovable property effected after the 30th day of June, 1963, within urban areas specified by Government under section 3 of the West Pakistan Urban Immovable Property Tax Act, 1958 (West Pakistan Act No, V of 1958) .
' Then there are West Pakistan Capital Gains Tax Rules, 1964 framed under the Act of 1963.
18. The Punjab Local Government Ordinance, 1979 by virtue of section 137 empowers a council subject to the provision of any other I law to levy all or any of the taxes enumerated in the Second Schedule. This section as already expressed runs as :- "! Local codicil subject to the provisions of any other law may, and if directed by Government, shall levy all or any of the taxes enumerated in the second schedule."
' The Second Schedule does include the tax on annual rental value of buildings and lands and on the transfer of immovable property. By section 182, this Ordinance repeals the Punjab Local Government Act, 1975.
19. The learned counsel for the petitioners have mainly taken up their position on the force of the above-said provision of the Punjab Local Government Ordinance, 1979, so this provision calls for construction or interpretation so as to see that whether it vests any local body to levy the relevant taxes to the derogation of any other law. The rule for guidance can be sought from Sussex Peerage case (1) wherein Tindal, C. J. Observed :- "The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than t expound these words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the law-giver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe mean of collecting the in tent-m, to call in aid the ground and cause of making the statute, and have recourse to the preamble, which according to Chief Justice Dyer Stowe/ v, Lord Zouch Plowden, 369, is "a key to open the
(1) 8 E R 1057 (H L) minds of the makers of the Act, and the mischiefs which they intended to redress."
' A plain reading of the above-quoted provision shows that an absolute power to levy the taxes has not been vested in a local council, the power given has been expressed as subject to the provisions of any other law. The provisions of any other law as used within the context necessarily means the provisions of any other law dealing with taxation.
' There is no substance in the arguments of the learned counsel for the petitioners in view of the above-said language of the provisions that only a local council is competent to levy taxes and not the Provincial Government under the West Pakistan Urban Immovable Property Tax Act, 1958 and section 16 of the West Pakistan Finance Act, 1963 read with the West Pakistan Capital Gains Tax Rules, 1964 and both the Acts cannot co-exist with that of the Ordinance of 1979 because of the inconsistency so the Ordinance impliedly repeals Act V of 1958 and section 16 of the West Pakistan Finance Act and the rules framed in 1964 in that behalf. Had the powers as to taxation been expressed as not subject to any other law then one might have considered the question of repeal keeping in view section 4 of the Punjab Local Government Ordinance, 1979 which enacts that the provision of this Ordinance shall take effect notwithstanding anything inconsistent therewith contained in any other law, on the construction that the power as to the levy of taxes absolutely vested in a local body in an absolute term. Since the provisions of the said Ordinance are not on such a pass, therefore, no idea as to the implied repeal can be entertained. It is simply a case where power to levy tax has been given to a local body provided the field is not occupied by any other such law. It will simply mean that if some other law as to taxation, the existence of which has been admitted, is validly in operation, then no space is left for a local body to exercise its power.
Whenever a power is made subject to any other law then the power so given remains subsidiary rather than a primary one.
20. Now to see that whether there was any intention on the part of the legislature to remove the Act V of 1958 from the Statute Book, the position worth examining is that of the provisions of the Punjab Local Government Act, 1975. Similar provisions as quoted above existed at that time where the power to levy the tax was made subject to any other law. Despite that later in time section 5 of the Punjab 1-inance Act, 1975 as quoted above indicated that the West Pakistan Urban Immovable Property Tax Act, 1958 was very well alive and under the amended section 3-A of Act V of 1958 out of the taxes collected by the Provincial Government a local body was entitled to be paid 85 per cent of the balance after deducting the charges of 5 %'as collection charges. If this happened to be the position in 1975 then the Punjab Local Government Ordinance, 1979 does not improve upon it because of the similarity of the provisions.
' On the other hand there is also no substance in the argument advanced by the learned Additional Advocate-General that the bar as to the levying of taxation continues till today despite the omission of the legislature to mention the Punjab Local Government Act, 1975 or the Punjab Local Government. Ordinance, 1979 in section 11 of the Punjab Finance Ordinance, 1971 by way of a consequential amendment. There is no omission to indicate that way. Whatever the legislature has done is deliberate. The legislature has in its wisdom this time or in 1975 has not extended the law taking away the power to levy tax on the buildings and lands since it has intended as is obvious from the provisions of law to give power of taxation also to a local body though subject to any other law. So coming to the question in issue the position which obtains is that the power to levy the property tax and capital gains tax arising out of the transfer of the property exists under the West Pakistan Urban Immovable Property Tax Act, 1958 and section 16 of the West Pakistan Finance Act and the Rule of 1964 made thereunder in that behalf as well as under the Punjab Local Government Ordinance, 1979 but the difference is that power under section 137 of the Ordinance, 1979 is restricted one, meaning thereby that if the levying of the taxes is proceeded with under section 3 of Act V of 1958 and section 16 of the West Pakistan Finance Act, 1963 and the Capital Gains Tax Rules, 1964, then a local body is to stay its hand being with a power subject to any other law and if the levying of the property tax is not conducted under the Act V of 1958 and the West Pakistan Finance Act, 1963, then a local body is free to proceed with the taxation in the terms of section 137 of the Ordinance, therefore, it cannot be maintained that respondent No, 1 is not competent to issue notification specifying the Urban Areas where the tax is to be levied under Act V of 1958 or the Finance Act, 1963 and the consequential demand notices for the payment of the tax or enhancement and notices for filing the returns, because of the power vesting in a local body.
21. As to the specific point raised by Mr. Saeed Akhtar, Advocate that before declaring, inter alia, Narang Mandi as the rating area, no notice was given to the petitioners, a perusal of Annexure 'B' in Writ Petition No, 4007/82 shows that the Government had observed the statutory requirement of survey and calling for the objections against the proposed assessment And the tax in that rating area along with nine other new rating areas was to be levied from the 1st of July, 1981. However, this being a question of fact cannot be gone into within the scope of the Constitutional jurisdiction of this Court.
22. For the foregoing reasons, all the writ petitions are dismissed. However, in the circumstances of the case, there is no order as to costs.