1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petition is admitted to regular hearing and is disposed of today as the point involved is short and both the Advocates for the parties have been heard.
2. ' Briefly stated the relevant facts are that, the petitioner was tenant in the premises owned by a Trust through Fakirjee Cowasjee and others. The petitioner has vacated the premises with effect from 31st January, 2001. The Property Tax under the Urban Immovable Property Tax Act (V of 1958) was not paid by the owner as required under section 3(3) of the said Act. The respondent No,2 issued impugned notice to the petitioners on 18-3-2001 calling upon them to pay the property tax etc. At the sum of Rs,13,60,021. Subsequently, a revised challan was issued on 18-5-2001 calling upon the petitioner to deposit Rs,82,38,330 and final notice was issued in the month of October, 2001.
3. ' The grievance of the petitioner is that, the demand made by the respondent No,2 from the petitioner is without jurisdiction, illegal and is liable to be struck down.
4. ' Mr. Muhammad Saddiq Khan, learned counsel for the petitioner has submitted that, it is admitted position that, the building in question is not owned by the petitioner but he was a tenant in the same till 31st January, 2001. He has contended that, under section 3, subsection, (3) of the Urban Immovable Property Tax Act, 1958, the tax shall be due from the owner of buildings and lands. He has further submitted that, under section 2(e) of the Urban Immovable Property Tax Act (hereinafter referred to as the said Act), the owner includes a mortgage with possession, a .Lessee in perpetuity, a trustee having possession of a trust property and a person to whom an evacuee property has been transferred provisionally or permanently under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned counsel has submitted that the petitioner cannot be treated as owner under the above definition contained in section 2 (e) of the said Act.
5. ' Learned counsel argued that, under section 14 of the said Act, the recovery of tax can be enforced from the tenant provided conditions specified therein are fulfilled. Section 14 of the said Act is reproduced below:-- "14. Recovery of tax from tenants:---Where the tax due from any person on account of any building or land is in arrears, it shall be lawful for the prescribed authority to serve upon any person paying rent in respect of that building or land, or any part thereof, to the person from whom the arrears are due, a notice stating the amount of such arrears of tax and requiring all future payments of rent (whether the same have already accrued due or not) by the person paying the rent to be made direct to the prescribed authority until such arrears shall have been duly paid, and such notice shall operate to transfer to the prescribed authority the right to recover, receive and give a discharge for such rent. If the person paying rent wilfully fails or neglects to comply with the notice aforementioned, the prescribed authority may, after giving him an opportunity of being heard, proceed against him as it would have proceeded under the provisions of this Act against the owner of the building or land in respect of which the tax is in arrears."
6. ' He has submitted that the condition precedent for enforcing the recovery of tax under the said Act from the tenant is that, there should be arrears of rent payable by the tenant to the landlord or the tenant is liable to pay any future rent to the landlord, then only the respondent No,2 can step into the shoes of the landlord, asking the tenant to pay the arrears and/or future rent to the respondent No,2. By operation of law the payment of the arrears of rent or future rent as the case may be, towards outstanding demand of the respondent No,2, shall be deemed to be valid discharge of the payment of rent to the landlord. The contention of the learning counsel appearing for the petitioner is that, admittedly, the petitioner is no more a tenant in the premises With effect from 1st February, 2001 and there is no material available with the respondent No,2 to show that, the petitioner is in arrears of any rent with the result that, the petitioner is neither required to pay any arrears of rent nor any future rent to the owner and thus the condition precedent for falling back on section 14 of the said Act by respondent No,2 does not exist. He has maintained that, in the above circumstances; the demand of the respondent No,2, from the petitioner is not warranted in law and is without jurisdiction which is liable to be struck off.
7. ' On the other hand, Mr. Suleman Habibullah, learned A.A.-G. Has submitted that, the owner has not paid the property tax and the petitioner was a tenant, therefore, he would be deemed to be owner by virtue of the definition of owner contained in section 2(e) of the said Act. The contention appears to be totally preposterous because, in section 2(e) a lessee in perpetuity has been included in the definition of owner and the vacation of the premises by the petitioner is itself indicative of the fact that the petitioner was never a lessee in perpetuity. Mr. Suleman Habibullah has contended that, the property tax can be recovered from the petitioner by virtue of the provisions contained in section 14 of the said Act. However, he is not able to show that there is any material available with the respondent No,2 to establish that, the petitioner is in the arrears of any rent payable to the owner or he is liable to pay any future rent to the owner. Mr. Suleman Habibullah, has raised further objection that, the petition is not maintainable because, petitioner has the remedy to appear before the tax officials and present his case there.
8. ' We have carefully considered the contentions raised by the learned Advocates for the parties. So for, the objection to the maintainability of petition is concerned, we are of the opinion that, by now the proposition of law has been established that, if any authority takes any action palpably without jurisdiction then it does not lie with it to allege that, the aggrieved person should submit to the jurisdiction of the said authority, which is not vested in law. Whenever, a question is raised alleging the lack of jurisdiction and prima facie it is established that the jurisdiction does not vest with an authority, the petition shall always be maintainable to assail the initiation of proceedings without jurisdiction, for the simple reason that, when the foundation itself is not available there is no question of erecting any edifice on it. Such objection can be taken in those cases, where it is shown that , the action initiated is with jurisdiction and is permissible within parameters of the law. We will show presently that the respondent No,2 has no jurisdiction to issue impugned notice, therefore, the objection to the maintainability of the petition is repelled.
9. ' Coming to the merits of the case, we are persuaded to agree with the submission of the learned counsel for the petitioner that, the outstanding tax could be recovered from the petitioner by virtue of provisions contained in section 14 of the said Act, if any arrears of rent were due and payable to the owner or any future rent was payable by the petitioner to the owner. In the absence of any material in the possession of respondent No,2, in this behalf he has no sanction in law to call upon the petitioner to pay the outstanding property tax which in law is payable by the owner.
10. ' At this juncture, we would like to observe that, the proposition of law is very clear that, under section 3 of the Urban Immovable Property Tax Act of 1958, the property tax can be levied on the owner and none else. It is only in the matter of recovery of the said tax that, a provision has been made to the effect that, if the premises is in possession of the tenant and he is in arrears of rent due and payable to the owner or a tenant is required to pay any future rent, then only the property tax being Government revenue, shall have first charge, and in such eventuality, the tenant shall be bound to pay the arrears of rent and future rent to the Property Tax Authorities, who shall step into the shoes of the owner for the purpose of recovery of outstanding tax. The payment of such tax under the Urban Immovable Property Tax Act shall be deemed to be valid discharge of the liability of the tenant towards landlord and he shall not be held to be a defaulter.
11. ' For the foregoing reasons, it is held that, the impugned notices issued by respondent No,2, to the petitioner calling upon to pay the outstanding property tax are without jurisdiction, void ab initio, inoperative and are consequently, struck off. The petition is allowed as above, with no order as to costs.