Z. A, CHANNA, J. ----This Constitutional petition seeks to assail the legality of an order passed in revision by respondent No. 2 on 5-3-1975 whereby he held that the land upon which the service station and other structures had been erected by the petitioner was appurtenant to the service station and the other structures and hence the entire assessment, both in respect of the land and the superstructures, under the West Pakistan Urban Immovable Property Tax Act, 1958, hereinafter referred to as the said Act, be realized from the owner of the superstructures, namely the petitioner.
2. The facts in brief which have resulted in the present proceedings are that respondents Nos. 3 to 7, who are the owners of plots of land bearing Survey Nos. 9 and 10, survey sheet T. L. 3, Harchandrai Road, Tabilram Quarters, leased out to the petitioner, by a duly registered lease deed executed on 1-11-1964, an area measuring 474 square yards from their Plot Survey No. 10 and an area measuring 179, 166 square yards from their plot Survey No. 9, on a monthly rent of Rs. 3,000, for the purpose of erecting and installing thereon petrol tanks, petrol delivery pumps, service stations and other structures mentioned in the lease deed. One of the terms of the lease deed was that "the lessee shall defray all rates, taxes, assessm ents and outgoings payable by law in respect of the structures erected, namely the petrol pumps, underground tanks, service station, etc. Etc."
3. The G. A. R. V. Of the leased land and the structures erected thereon by the petitioner was assessed for the purposes of the property tax under the said Act by the Excise and Taxation Officer, 'E' Division, Karachi, at a consolidated sum of Rs. 36,000, treating the structures as appurtenances to the land, and hence the payment of tax was made the liability of respondents Nos. 3 to 7. On a belated revision being preferred by the aforesaid respondents against the said order, respondent No. 2 passed the impugned order on 5-3-1975.
4. Mr. G. M. Qureshi, the learned counsel for the petitioner, has assailed the impugned order upon two grounds. His first ground of attack was that under section 10 (2) of the sand Act a party aggrieved by an order subject to revision under the said Act could prefer a revision application against the order within one year of the date of the order. The learned counsel submitted that since the Assessing Authority (Excise and Taxation Officer, `E' Division) had passed his order in regard to the levy of tax on 19-6-1968, the revision application by respondents Nos. 3 to 7, was hopelessly time--barred and hence respondent No. 2 had no jurisdiction to entertain the same. In support of his contention the learned counsel relied upon the decision of a learned Single Judge of the Lahore High. Court in the case of Ashiq Muhammad Khan v. Federal Land Commission (PLD 1977 Lah. 461).
5. On merits, Mr. G. M. Qureshi, submitted that as was clear from the lease deed itself, the structures were appurtenances to the land and not vice versa and consequently the respondent No. 2 in holding that' the land was appurtenant to the structures committed a patent illegality and also acted in contravention of the provisions of the said Act.
6. Mr. S. A. Samad, the learned counsel for respondents Nos. 3 to 7, on the other hand, submitted that since, no time was prescribed under section 10 (2) of the said Act for exercise of suo motu powers by the revisional authority, he could revise orders of a subordinate authority at any time when an illegality or irregularity therein came to his notice, whether on his own information or an application by a party concerned or in any other manner. His contention, in brief, was that as respondent No. 1 admittedly could exercise suo motu powers at any time and since he has revised the orders of the Assessing Authority, after the period prescribed for filing of a revision application by a party had expired, he should be deemed to have exercised suo motu revisional power.
7. In support of his contention the learned counsel placed reliance upon the decisions in Amir Din v.
Muhammad Siddiq (PLD 1966 Lah. 416), Abdul Rashid v. Abdul A.I (1972 SCMR 391) and Muhammad Zaki v. Maqsood A.I Khan (PLD 1976 SC 309).
8. On merits, Mr. Samad submitted that the respondent No. 2 fell in error in holding that the superstructures were appurtenant to the land and consequently imposing the tax on the owner of the land was in violation of the law. The learned counsel submitted that the correct legal view, which should have been adopted by respondent No. 2, was that the land was appurtenant to the superstructures and consequently it were the superstructures which were required to be taxed and not the land. In support of this contention, the learned counsel relied upon the following observation of Lord Atkinson in the Privy Council case of Victoria City v. Bishop of Vancouver ((1921)
2 A C 384), where the question arose whether the land upon which a Cathedral meant for public worship had been erected was exempt alongwith the Cathedral itself from Municipal Taxation :--- the word 'building' as used in ordinary language, comprises not only the fabric of the building, but the land upon which it stands."
9. Now, section 10 (2) of the said Act makes a clear distinction between suo motu exercise of powers and entertainment of a revision application, and whereas it provides that suo motu exercise of revisional powers could be done at any time, a revision application can only be entertained within a period of one year from the date of passing of the order sought to be revised.
10. In Ashiq Muhammad Khan's case, Mushtaq Hussain, J. (as he then was), while considering the distinction between suo motu exercise of revisional powers and exercise of such powers on application, observed as follows:- "The expression 'of its or his own motion' is not unknown to law. It is a term of art and is meant to clothe an authority with the power to act even when it has not been moved by anybody to do so.
Information leading to such action would ordinarily be expected to come to the knowledge of an authority during an inspection of the office of the subordinate authority or during the course of any other proceedings. So long as an authority has not been moved by a person to act, the person not being necessarily aggrieved himself, the authority would be deemed to have proceeded of its own motion.
When, however, a person, particularly one who is aggrieved, moves an authority in the matter, any action taken by that authority consequent upon such application cannot by any stretch of imagination be dubbed as action of 'its or his own motion'. The importance of this distinction would partly rest upon whether the circumstances in which an authority can move of its own motion and those in which it moved on an application being presented are subject to different limitation."
11. As regards the authorities cited by Mr. Samad in support of his contention that the impugned order should be deemed to have been passed in exercise of suo motu revisional powers, despite the clear indication in the order itself that it was passed on the application made by respondents Nos. 3 to 7, they do not deal with the distinction between suo motu nvisional powers and exercise of such powers on an application by an aggrieved party or the interpretation of any law which provides for both the types of revisions.
12. In Amiruddin's case, a learned Additional Settlement Commissioner accepted an appeal preferred against an order made by a learned Deputy Settlement Commissioner in regard to transfer of certain evacuee property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In the writ petition filed to the High Court to challenge the ultimate order passed by the Settlement authorities, it was contended that the appeal before the Additional Settlement Commissioner was barred by limitation. Repelling this contention, it was held by a learned Single Judge of the Lahore Bench of the erstwhile High Court of West Pakistan that the proceedings before the Additional Settlement Commissioner, even though initiated as appeal, could very well be turned into and considered as a revision, and that it was well settled that revisional jurisdiction under the Displaced Persons (Compensation and Rehabilitation) Act was discretionary and suo motu. It may, however, be pointed out that the Act neither provides for both suo mote revision and revision on application nor was the learned Judge dealing with any such question.
13. In Abdul Rashid's case the facts were that a person who was not an applicant for the transfer of a particular house challenged its disposal by public auction by way of an appeal before the Settlement Commissioner, who converted the appeal into a revision and set aside the auction. A writ petition was filed to challenge the said order but the petition was dismissed by the High Court: On appeal being preferred to the Supreme Court, their Lordships of the Supreme Court reiterated their earlier view that such a person has no locus stand! To challenge the disposal of that house but nevertheless refused to interfere with the decision of the High Court on the following ground :- "The learned Single Judge has rightly pointed out that this is a case where the learned Settlement Commissioner should be deemed to have exercised his suo motu powers of revision as vesting in him under subsection (3) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Once the matter of the irregular auction proceedings had been brought to his notice, it was open to him to act suo motu in the exercise of his revisional powers and he must be deemed to have done so."
14. In Muhammad Zaki's case, the question which arose for consideration of their Lordships of the Supreme Court was whether an application moved by the L. Rs. Of the contesting respondent, who had died and in respect of whom it had originally been ordered that the appeal as respects him had abated but subsequently this order was set aside, for reconsideration of the order allowing condonation and setting aside the abatement, had been dismissed when the Court decided to hear the appeal on merits. Answering this question in the affirmative Muhammad Gul, J., observed as follows :- "I am satisfied that it is implicit in the order of this Court dated the 30th May 1974 that the applicant's miscellaneous application seeking a reconsideration of the order of the learned Single Judge of this Court stood dismissed ipso facto when the Court decided to hear the whole appeal on merits. This was in keeping with the well-known principle that the Courts more particularly the superior Courts shall always lean in favour of determination of cases brought before them on merit unless there are compelling reasons to the contrary."
15. The above case also does not deal with the distinction between the suo moru exercise of revisional powers and the exercise of such powers on an application. In the reported case, the very fact that the appeal was heard on merits clearly implied that the application for setting aside the order for hearing the appeal on merits was rejected.
16. I may finally refer to two other decisions of the Supreme Court in regard to the exercise of suo motu powers though these decisions were not cited before us. The first of these is the case of Sahibrai v. Custodian of Evacuee Property, Karachi (PLD 1957 SC (Pak.) 63). In that case the question which arose for consideration of their Lordships related to the powers of review of the Custodian under section 36 of the Pakistan Administration of Evacuee Property Ordinance, 1949, subsection (5) whereof was in the following terms :- "(5) The Custodian or Additional Custodian may, within the prescribed period, and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order."
17. It was held in the above case that since the substantive law does not require that for purposes of review a Custodian or Additional Custodian should be moved by any party in that behalf, and bearing in mind the purpose of the law, "it must necessarily be assumed that the provisions for review in section 36 of the Ordinance was intended to cover review by the Custodian acting suo mote, on the basis of information coming to his notice otherwise than from the parties directly interested in the properties in question". The view thus taken by the Supreme Court appears to have been that taking of action on being moved by the parties concerned would not be suo motu exercise of power.
18. The second case to which I would like to refer is the case of Abdul Majid Shaida v. Noor Jehan (PLD 1967 SC 221). In that case, a party apparently reconciled with an order of transfer of a house to a rival party under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, preferred a revision application, some 14 months after the passing of the order, to challenge the transfer, when it was sought to be ejected from the house in question. The Settlement Commissioner, before whom the revision application was made, declined to interfere. Upholding the order of the Settlement Commissioner, S. A. Rahman, J. (as he then was) observed as follows :- "Section 20 of the Act gives a discretionary power of revision to a specialty empowered Settlement Commissioner. There is no right given to any applicant to move a revision petition before the Settlement Commissioner. It is the latter's discretion to act under the powers conferred on him by section 20, in a suitable case. The order, passed by the Settlement Commissioner, must be read in the context of this legal position. The Settlement Commissioner, no doubt, had in mind the prescription of a period of limitation by order of the Chief Settlement Commissioner, when he mentioned that the petition should have been filed within 15 days of the impugned order being passed. But, at the same time, he commented adversely on the fact that the petition had been submitted to him with a delay of 14 months and that no explanation for this delay had been furnished at all. In the circumstances, it could not be said that the Settlement Commissioner had declined to exercise jurisdiction on an arbitrary or fanciful ground. Even apart from the ineffective order of the Settlement Commissioner, prescribing the period of limitation, the learned Settlement Commissioner could have refused to entertain the petition, on the ground of laches and the tenor of his order shows that he was aware of this aspect of the case. The question, therefore, arises whether the High Court were right in the exercise of their equitable writ jurisdiction to interfere with the order of the Settlement Commissioner, declining to exercise his discretionary revisional powers, in the circumstances of this case."
19. In the instant case, not only does the impugned order not indicate that it 'was passed in the exercise of suo molu revisional powers of the Assistant Director-General, but on the other hand clearly states that it is being passed on the application filed by the owner of the land. Since the revision application was filed in December 1974, while the order sought to be revised and in fact actually revised was passed on 19-6-1975, it was filed more than 5 years after the expiry of the period prescribed for filing of a revision application. In my opinion, therefore, the respondent No. 2 acted without jurisdiction in initiating proceedings upon the same. It is remarkable that be even did not consider the question of limitation though it was quite apparent. The object of the said Act, so far as I have been able to gather the same from its provisions, is to provide protection to a party against being vexed by a rival party, after the period prescribed for filing of revision application has expired. If an unsuccessful or disgruntled party could be permitted to invoke the suo motu revisional powers of the competent authority, after the expiry of the period of limitation for filing of revision applications, the very purpose of prescribing the limitation period for filing of such applications and the distinction between exercise of suo motu revisional powers and initiation of proceedings upon revision applications, specially by aggrieved parties, would be obliterated.
20. The above is not the only illegality committed by respondent No. 2 in passing the impugned order. Despite the fact that he was reversing the order of the assessing authority and the effect of his order was to impose liability for the tax upon the petitioner, no notice or opportunity of being heard was given to it. The respondent No. 2 thus has acted in violation of the principles of natural justice audi alteram partern (no one shall be condemned unheard).
21. In view of the above legal infirmities in the impugned order, I do not consider it necessary or appropriate to comment on the merits of the case, except to point out that in the case of Begum Samad v. Additional Com--missioner (1968 SCMR 445) the Supreme Court repelled the contention that in the case of land acquired by an oil storage and distribution Company for the purposes of setting up a service station, the property should have been assessed as building with its appurtenances" and upheld the order of the Additional Commissioner, the material part whereof was as follows :- "I think the assessm ent of tax should be made only on the basis of Rs. 2,500 monthly rental value on which the plot was actually leased out. It would not be justifiable to assess the superstructure separately as the rent of Rs. 2,500 would never be paid if it was not intended for construction of a Petrol Pump. Accordingly, therefore, I would reduce the G. A. R. V. To only Rs. 30,000."
22. For the foregoing reasons, I am of opinion that the impugned order is without legal effect. I would accordingly quash the same but, in the circumstances of the case, leave the parties to bear their own costs. For avoidance of doubt, I would like to make it clear that the quashing of the impugned order is not to be deemed as any bar to the proper exercise by the Director-General of his suo motu powers to revise the orders of the Assessing Authority on any grounds envisaged by the said Act.