Mst. SULTAN JAHAN vs CANTONMENT BOARD, LAHORE CANTT., through Executive Officer and 2 others

' MIAN SAQIB NISAR, J.---It is the case of the petitioner, that on 10-2-2000, she had purchased Plot No.60/2 Phase-I, Sector J, measuring 1 Kanal, from the Defence Housing Authority; when the sale- deed was presented for its registration before the Sub-Registrar, Lahore Cann., he refused to register the deed unless the tax on transfer of immovable property was paid to the Cantonment Board. The petitioner, in this behalf, approached the Board and apprised, that on the date of the sale, such tax was not leviable for the reasons, that it does not chargeable, because the tax has been abolished by the Finance Bill 1999-2000, and in compliance of the above, the Government of Punjab has also issued Ordinance XXIX dated 29-6-1999, whereby the said tax was deleted from II Schedule inserted under section 137-138 of the Punjab Local Government Ordinance, 1979; and in the light of the provisions of section 60 of the Cantonments Act, 1924, if any tax is not leviable in the municipal area, the same was not chargeable in the cantonment area. This plea of the petitioner was not accepted, and thus, she under protest was constrained to make the payment and ultimately filed this petition seeking declaration of the action of the claim/recovery of the tax as illegal and unlawful and the refund thereof.

2. Learned counsel for the petitioner by relying upon a Division Bench judgment of this Court reported as Mst. Nargis Moeen and another v. Government of Pakistan and others (PLD 2003 Lah.

730), which judgment has been affirmed by the Hon'ble Supreme Court, has argued that the tax in question could not be levied, which was declared as illegal in said precedent.

3. Learned counsel for the respondents, however, argued that the suit for the recovery' of the aforesaid amount has become time-barred, therefore, the recovery cannot be sought through the constitutional petition. It is further submitted, that the petitioner has the alternate remedy of filing a civil suit.

4. Heard. The judgment of this Court, dated 2-6-2003 reported as Mst. Nargis Moeen and another v.

Government of A Pakistan and others (PLD 2003 Lah. 730), had declared the levy of the impugned tax as illegal and at the relevant point of time when the sale-deed of the property was effected in the petitioner's favour, it could not be charged by the respondents. The petitioner, in this behalf, has been making the representations to the respondent Cantonment Board as also issued a legal notice and had also approached this Court in Writ Petition No.1008 of 2004, which was decided on 8-6-2004, whereby the respondent-Cantonment Board was directed to redress the grievance of the petitioner in the light of the judgment, mentioned above. Thereafter, the petitioner submitted an application for the refund of the amount, but this was not allowed as the respondent asserted that the judgment in Mst. Nargis Moeen's case was challenged by them through appeal and the matter was yet pending before the Hon'ble Supreme Court. But now, the Hon'ble Supreme Court has dismissed the respondents' appeal, yet the refund is not being made.

5. In the light of above, I am of the considered view that the bar of limitation or the plea of alternate remedy raised by the respondents' counsel is not applicable, rather on the principles of equity, this case needs to be decided on the basis of the rule laid down in PLD 2003 Lah.

730. Thus, as the respondents were not entitled to levy and charge the impugned tax, which was an illegal action of the respondents, resultantly, the respondents are directed to B refund the said amount. Therefore, this petition is allowed and a direction is issued to the respondents to refund the said amount to the petitioner within a period of two months.