AMINA BAI Versus DIRECTOR-GENERAL, EXCISE & TAXATION, SINDH, KARACHI

Z. A. CHANNA, J.‑These two constitutional petitions assail two separate orders passed in revision by the Director‑General, Excise and Taxation. Sind, respondent No. 1, under section 10(2) of the West Pakistan Urban Immov able Property Tax Act, 1958 (hereinafter referred to as the said Act), whereby he enhanced the property tai payable under the said Act in respect of two property units. Since common points of law and fact arise in ‑both the petitions, they ‑have been beard together and are being disposed of by a common judgment.

2. In Writ Petition No. 1024 of 1973, the petitioner is Mst. Amna Bai, who is the proprietor and self‑occupier of property unit bearing No. H/KD. 285‑3‑F/4, in the Dawood Co‑operative Housing Society, Karachi. This house is constructed on a plot measuring about 2,000 syde. The Gross Annual Rental Value (hereinafter for the sake of brevity referred to as the GARV) of this property was assessed by the Assessing Authority, by his order dated 18‑4‑1969, at Re. 16,800. The petitioner appealed against this order to the Director of Excise and Taxation, Karachi, who reduced the GARV of this property unit to Rs. 14,400, by his order dated 3‑6‑1969. Subsequently, a notice of a suo motu revision was received by the petitioner requiring her to appear before the Director‑General, Excise and Taxation, on 28‑4‑19‑3, to show cause why the assessment of the said property unit be not enhanced. The reason shown in the said notice for its issuance was that the property had been assessed at a very low rate. The petitioner's represen tative appeared on the aforesaid date before the Director‑General, Excise and Taxation (respondent No. 1), who enhanced the GARV of the aforesaid property from Rs. 14,400 to 24,000. It is this order of respondent No. 1 which is impugned in Petition No. 1024/73.

3. In Petition No. 1025/73, the petitioner is A. Aziz Dawood, who is the owner and self‑occupier of property unit bearing No. H/KD.285‑5‑F/5, in the Dawood Co‑operative Housing Society, Karachi. This house is cons tructed on a plot measuring 3,335 sq. yds. The petitioner received a notice, dated 18‑3‑1969, from the Assessing Authority, informing him that it was proposed to increase the GARV of the aforesaid property unit froth the previous GARV of Rs, 12,012 to Rs. 22,500. The petitioner filed filed objections against the proposed assessment and the Assessing Authority determined the GARV of the property unit in question at Rs. 17,500, by its order dated 18‑4‑1969. The petitioner filed an appeal against the aforesaid order before the Director, Excise and Taxation, Karachi, but his appeal was dismissed. Subsequently, the petitioner received a notice requiring him to appear before respondent No. 1 (the Director‑General, Excise and Taxation, Sind), on 28‑4‑1973, to show cause why the assessment in respect of his property unit be not enhanced. In this case also the notice intimated that i1 was being issued because the property unit had been assessed at a very low rate. The petitioner's representative appeared before the respondent No. 1 on the date intimated in the notice, when the respondent No. I passed the impugned order, enhancing the GARV of the petitioner's property unit from the existing annual rental value of Rs. 17,500 to Rs. 24,000.

4. We have heard Mr. Nasim Farooqi and Mr. Tahir Hussain, who appeared fur the petitioners, and the learned Advocate‑General, who appeared for the respondents in both the petitions.

5. The learned counsel for the petitioners assailed the two im pugned orders of the Director‑General on the grounds, firstly, that the said orders were passed by the Director‑General, after holding an enquiry and taking further evidence, which he was not competent to do in exercise of pie revisional powers under the said Act, that secondly, the basis on which the impugned order was passed by the Director‑General was not disclosed to the petitioners and hence they had no opportunity to meet the same ; and lastly, that the two impugned orders are neither legal nor proper as the basis on which the assessment for the two property units has been revised is not in accordance with law.

6. Before we consider the above contentions of the learned counsel and the submissions made in reply by the learned Advocate‑General, we would like to refer to certain admitted facts. So far as property unit F/4 is concerned, it consists of 13 living rooms, and in addition bath‑rooms, dressing‑rooms, verandahs, kitchen, pantry and servant quarters. As regards property unit No. F/5, it consists of 14 living rooms and in addition bath‑rooms, two stores, two garages, four servant quarters, a pantry and a kitchen. The learned Advocate‑General has produced before us statements showing the area of the two plots, the number of rooms on each plot and the size of each room etc. The material portion of the statements is follows :‑

'F/4 Dawood Colony

2500 sq. yds. Double‑storeyed.

Basement :

1 Hall 20' x 25' approx.

2 Rooms 16' x 12' each.

2 Bed Rooms ... 14' x 14' each.

I Stair Hall 30' x 20' ... ) 'L' Shape.

14' x 14 )

1 Servant

Quarter . ... 12' x 14'

Ground Floor :

1 Drawing Room ... 35' x 141

1 Dining Room ... 17' x 121

2 Sitting Rooms 14' x 14'

3 Bed Rooms 14' x 161

... 14'x 16' 18 x 16

Corridor .28' x 08'

Pantry ... 19' x 10'

F/5, Dawood Colony

Mr. A, Aziz Ahmad Dawood

_________________________

3335 sq. yds. Double‑Storeyed

________________________

Basement :

Garrage 2

Servant Quarter 2

Store 1

Ground Floor

6 Rooms 15 x 19' 15' x 19' 29' x 18' 29' x 18'

27' x 10'

15' x 20'

1 Servant Quarter 16' x 10'

1 Store ... 10' x 09'

1 Pantry ... 10, x 10'

First Floor :

5 Rooms 16' x 10' 18' x 18' 27'x 181 19' x 15'

19' x 15'

2 Drawing 12' x 10' 10 x 08'

1 Servant Quarter 16' x 10'

7. We would like to point out that we have seen the completion plans of the two property units and we find that so far as property F/4 is con cerned, in addition to the rooms shown in the above statement relating to it, it has an additional room on the second floor, measuring 19' x 15 ; together with a stair‑hall, measuring 25' x 20'. The total covered area of property unit F/5 is not available on the record. but in the memo of appeal filed before the Director of Excise and Taxation in respect of property unit F/4, its total built up area is shown as 597.18 sq. yds., which would be about 5,375 sq. ft.

8. Elaborating his first contention, Mr. Tahir Hussain submitted that section 10(2) of the Act empowers the revising authority to revise an order of a subordinate authority only if it suffers from an illegality or impropriety and that while the holding of an enquiry or the taking of additional evidence is permissible fn appeal, such course is outside the scope of the revisional powers. So far as the first limb of his argument is concerned, there can be no quarrel with it, since it is supported by the express provisions of section 10(2). In support of the second limb of his argument, the learned counsel sought reliance, firstly, on the provisions of male 13 of the ruses framed under the said Act and also the decisions reported in P L D 1961 S C 76, P L D 1973 Lab. 92 and P L D 1966 Pesh.

5. The learned counsel pointed out that while rule 13(2) expressly empowered the appellate authority, before deciding an appeal, to hold a further enquiry or direct that such enquiry be held, in rule 13(4), which related to revisions such provision was conspicuous by Its absence. The learned counsel from this wanted us to infer that section 10 (2) of the said Act did not contemplate or envisage the holding of an enquiry or taking of additional evidence by, the revisional authority. For the reasons we win presently state, we do not consider it necessary, for the purpose of deciding these two petitions, to give any finding on this issue. We expressly asked the learned counsel to point out to us chat additional evidence was recorded on further enquiry held by respondent No. 1, but he was unable to do so. The impugned order does refer to an enquiry being held, but this enquiry, as the order itself shows, was held, not by the revising authority, but by the Assessing Authority, and further more this enquiry was held before the show‑cause notice was issued to the petitioners by respondent No. 1 and they were heard. The enquiry may thus at best be said to be the cause for the issuance of show- cause notice to the petitioners. The impugned order refers to no additional evidence being taken by the revising authority. It only refers to the location and area of the properties, accommodation and number of rooms in each property and the type of construction therein, which information, it is not disputed, was already available in the property Register and the record of the Excise and Taxtation Department. Who may also point that in the case reported in P L D 1961 S C 76, on which reliance was sought to be placed by Mr. Tahir Hussain, and which was a case under the Sind Rent Restriction Act, 1947, it was held that the conception of an appellate or revisional authority is that it examines the original order for determining whether it ought to have been passed in accordance with the law that was applicable and even though in same exceptional cases an order may be passed i4 view of some facie which had occurred after the original order was passed, it !s not empowered to pass an order on any ground on the basis of which the original Court could not have proceeded." It is not the case of the petitioners that the revisional authority passed the impugned orders on any ground on which the original assessing authority was not competent to pass such orders or even on material which was not available to the latter. No such ground has been raised in either of the two petitioner.

9. We also find no substance in the next contention of the learned counsel for the petitioners that they were not informed of the basis on which the assessment of their property was being revised and hence they had no opportunity of showing that such basis was not factually or legally correct. The notice to the petitioners clearly stated that it was proposed to enhance the GARVs of their properties as the same were said to be under‑assessed The grounds on which the assessment of the petitioners' properties were enhanced, as stated in the impugned orders themselves, were, firstly the area of the plot, secondly, the number of living rooms in each unit of property and finally the type of construction. It may be mentioned that in respect of both the pro perties the type of construction has been held in the impugned orders at 'excellent'. These grounds, in our opinion, are very valid and proper ground for determining the GARV of any property unit, which is to be ascertained, as provided in section 5 of the said Act, by estimating the gross annual rent at which the property might reasonably be expected to be let from year to year. The impugned orders were admittedly passed in too presence of the representatives of the petitioners and after due notice to the petitioners. The petitioners and their representatives could not have been unaware of these grounds as these are the very grounds that they had urged in their objections before the original assessing authority and in the memorandums of appeals. In any case, the mere fact that these grounds were not stated in the notices to the petitioners ii of no significance as no such requirement of law could be pointed out by the learned counsel for the petitioners.

10. The learned counsel for the petitioners were also unable to point out to us any such illegality in the too impugned orders as would warrant interference by this Court in the exercise of its discretionary powers under the Constitution. It was not disputed that respondent No. 1 had jurisdiction to enhance the assessment of tile property amts of the petitioners it in his opinion the assessment determined by the lower authorities suffered fro m any Illegality or impropriety. As pointed out by the their Lordships of the Supreme Court in case reported to P L D 1961 S C 76, the word 'propriety' in regard to the exercise of revisional powers "has reference to the propriety of the order in the light of the law which was applicable". In these two petitions, as we have already pointed out, the assessment of the properties of the petitioners was enhanced on grounds which are pertinent under the la .v applicable, namely section 5 of .the said Act. Looking to the area of the two properties in question the huge accommodation available in each one of them and the excellence of their construction, it cannot be said that the GARV fixed for them by respondent No. 1 was not a fair estimate of the gross annual rent at which they might reasonably be expected to be lot from year to year. The error in the orders revised lay in the fact that they had failed to properly take into account the above relevant factors, specially the accommodation available in each property. Even if the estimate of respondent No. 1 irk regard to she gross annual rental value of toe two property he erroneous, that would not be a ground for interference by us with the impugned orders, for, as observed by their lordships of the Supreme Court in the case of Muhammad Munir Hussain v. Sikandar P L D 1974 S C 139 ;

"It is well settled that where a Court or a tribunal hats jurisdiction and is determines that question: it cannot be said that it acted illegally or with material irregularity because it came to an erroneous decision on a question of fact or even of law."

10. It was finally contended by the learned counsel far the petitioners that the two impugned orders are based on incorrect facts, inasmuch as not only they show the location of the two properties as P. E. C. H. S., when ire tract they are situated in Dawood Co‑operative Hinting Society, but further the impugned orders show incorrect number of bed rooms in the two properties. It was, however, conceded by the learned counsel that Dawood Co‑operative Society practically adjoins P. E. C. H. S. Even if this were not so, there is no evidence to show that the gross annual rent of a property in P. E. C. H. S. Is higher than that of similar type of property in the Dawood Co‑operative Housing Society. As to the error in the impugned orders in regard to the number of bed rooms in each of the two properties, true learned Advocate. General submitted that the words 'bed rooms' were a clerical error for 'living rooms'. In any case, the gross annual rent of a property would depend no so much on the number of bed rooms therein but on the total number of its living rooms, including bed rooms. It is not disputed that the total number of living rooms in each of the two properties is at least equal to the to number of rooms shower against them in the impugned orders. This contention also thus, in our opinion, has no substance.

11. For the reasons stated by us above, we are of the opinion that there is no merit is these two petitions. We accordingly dismiss the same with

S. Q. Petition dismissed.