1. ' SALEEM AKHTAR, J.--The petitioner has taken vacant plots bearing No. 29 and 30 on lease from K.P.T., the respondent No. 5, in the newly reclaimed area near Timber Pond, Keamari, measuring 9008 sq. metres at a rent of Rs.2,19,500 per annum. The petitioner has not raised any construction on the said plot. The respondent. No. 4 issued a notice dated 6-4-1982 proposing to assess the site rent of the said plot at a Gross Annual Rental Value (GARV) of Rs. 2,19,500 w.e.f. 18-2-1978. The petitioner filed objection but the respondent No. 4 rejected it and fixed the GARV of Rs. 1,97,725 for plot measuring 9008 sq. metres w.e.f. 19-2-1978 and Rs. 21,775 for 992 sq. metres w.e.f. 22-6-1980.
2. The total GARV was fixed at Rs. 2,19,500 equivalent to the actual rent the petitioner was paying to respondent No.
5. The petitioner filed an appeal before the respondent No.3 and as stay was not granted, the petitioner had to deposit the amount demanded, under protest. The respondent No. 3 by her order dated 23-8-1982 dismissed the appeal. The respondent No. 3 rejected the plea of the petitioner that the plot was to be assessed at the rate of 0.50 per sq. yard per annum as provided by section 3 (3-B) of the Sind Urban Immovable Property Tax Act. According to her as the K.P.T., the respondent No.5, has leased out the plot on yearly rent of Rs.21.95 per metre it should accordingly be assessed and GARV should be fixed on that basis. The revision filed by the petitioner was also dismissed.
3. ' Mr. Rehmat Elahi the learned counsel for the petitioner has contended that in view of the definition of the word "land" the open plot can be taxed as provided by section 3(3-B) of the Act and according to the rates prescribed by -that section. According to the learned counsel any other rate for realisation of tax would he illegal and unlawful.
4. ' On the other hand Mr. Abdul Sattar Sheikh, the learned Additional Advocate-General has contended that the assessm ent has to be made under section 5 subsection (3) of the Act. A scrutiny of the provisions of Sind Urban Immovable Property Tax Act makes it clear that section 3 is the charging section. It provides' for the levy and collection of Tax on building, land and open plot according to the scale provided therein. Section 3(3-B) specifically deals with the charge, levy and collection of tax on independent vacant plots and prescribes the rate of tax as well. Section 3(3-B) reads as follows:- "3(3-B) Notwithstanding the provision of clause (c) of section 4, there shall be charged, levied and collected a tax on independent vacant plots at the following rates:- Residential plots measuring 25 paisa per more than 599 square yards. square yard.
5. Commercial and Industrial plots. 50 paisa per square yard.
6. Explanation.-- For the purpose of this subsection independent vacant plot means a plot on which no building has been raised within three years of its possession to the allottee in respect of the plot transferred by allotment, and to the person entitled to receive the possession in respect of the plot transferred otherwise."
7. ' Section 3(3-B) Nearly lays down that the tax shall be levied on such plots which are vacant and independent and do not form part of any building. Such plots may be residential, commercial or industrial. The Explanation to section 3(3-B) clarifies that only such independent vacant plot will be subjected to tax on which no construction has been raised by the allottee within three years of its possession. In case of transfer other than allotment three years shall be computed from the date the transferee is entitled to receive the possession of the plot. Therefore, in either case for three years as computed in the manner indicated above no tax shall be levied on independent vacant plot. It will be levied if the allottee or transferee fails to raise any construction.
8. ' Under sections 3(2), (3-A) and (3-AA) tax has been charged and levied on building and land not on independent vacant plot. The Legislature has distinguished between land and building on one hand and the independent vacant plot on the other. In this context reference should be made to sections 2(da) which defines 'land' as follows: "2(da). 'land' means land appurtenant to any building, but does not include any independent vacant plot.'
9. ' By virtue of this definition independent vacant plot cannot be treated as land. Any plot which is appurtenant to any building is to be treated as land. Therefore independent vacant plot cannot be charged to tax under section 3(2), (2-A), (3), (3-A) and (3-AA), nor can the rate and scale specified therein be applied to it.
10. ' Independent open plot is charged to tax under section 3(3-B) at a rate specifically mentioned therein. It is well-settled that subject can be taxed if he is covered by the clear, unambiguous and express language of the charging provision of the statute. In this regard reference can be made to Partington v. Attorney-General (1869) L.R.4 H.L. 100 where it was observed:- the principle of all fiscal legislation is this. If a person sought to be taxed comes within the letter of the law, he must be taxed however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax cannot bring the subject within the letter of law, the subject is free, however, apparently within the spirit of the law the case might otherwise appear to be. In other words if there be admissible in any statute, what is called the equitable construc tion, it is not admissible in a taxing statute."
11. ' As independent vacant plot is not a 'land' and it can be charged to tax under section 3(3-B), the levy of tax by respondents No.2 to 4 was illegal. These respondents have treated independent vacant plot as 'land' and levied tax under the provision which is not applicable. The contention of the learned Additional Advocate-General is not well-founded as section 5(3) is not a charging section and it deals with the determina tion of annual value of land and building. It does not apply to independent vacant plot. For these reasons by the following short order passed earlier the petition was allowed.
12. It the impugned orders passed by respondents No. 2, 3 and 4 are held to be without lawful authority and of on legal effect. The same are quashed. It is further directed that the respondents, or, any one of them shall pass, a fresh order of assessment in accordance with section 3(3-B) of the Urban Immovable Property Tax Act, 1958.
13. ' The parties are left to bear their own costs." The petition is allowed.