AMAN ULLAH KHAN Versus PROVINCE OF N.-W.F.P.

A constructed property bearing Nos.1581 to 1581-6 situated outside Lakki Gate, Bannu City being in possession of Doctor Amanullah son of Shah Daraz Khan was taxed by the Excise and Taxation Department, Bannu under Urban Immovable Property Tax Act, 1958 (hereinafter referred to as the Act) vide memo. No.414/E&T/UIP. Tax, which was challenged before the Civil Court. The plaintiff was non-suited by Senior Civil Judge and District Judge, Bannu through their concurrent and respective findings dated 21-3-1991 and 14-6-1993. This is a revision petition against such judgments.

2. Apparently the jurisdiction of Civil Court in matters of tax and assessment etc. is barred under section 22 of the Act, but, by now, it has become a settled principle of law that the jurisdiction of a Civil Court is never ousted when it is a matter of mala fides. Secondly, despite the provisions of barring clause, the jurisdiction of a Civil Court is not ousted to see if a particular authority under such Act or Ordinance has acted in accordance with the provisions of such Act or Ordinance. Some reference to record is necessary to resolve the above two questions.

3. The mala fides of the authorities are apparent from the very impugned notice No.4144 dated 8-5-1990 produced before me on file as Annexure 'C'. The second paragraph of such notice is clearly suggestive of the fact that the assessing authority had acted against the petitioner in retaliation to some civil suit which was filed by the petitioner against some member of the staff of Excise and Taxation Department, Bannu. Apparently the Civil Court would check such mala fides. The second aspect, if the authority has acted within the ambit of the Act, would be resolved only through various references from record.

4. It is a position admitted by the plaintiff-petitioner as well as the Departments concerned through the statements of Ibrahim Shah, Rent Clerk, Municipal Committee, Bannu, Arifullah Khan of Excise and Taxation Department and Dr. Amanullah Khan the plaintiff-petitioner himself, that, the subsoil of the superstructure belongs to Municipal Committee, Bannu which was allotted to Dr. Amanullah Khan who had constructed the disputed building on it with the permission of Municipal Committee/Government and the monthly rent of the building/market on the land is received by Dr. Amanullah.

5. The above position being proved as well as admitted, it is next to be -seen as to who is liable to pay tax under the law. Section 3(3) of the Act provides that the tax shall be levied on an owner, which entity, is defined under section 2(e) of the Act determining the owner to be inclusive of a mortgagee with possession, a "lessee in perpetuity", a trustee having possession of a trust and a person to whom an evacuee property has been transferred provisionally or permanently under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In the light of this definition the respondent-department alleges that Dr. Amanullah having made construction over Government property, though with permission, is practically a "lessee in perpetuity" and hence is bound to pay the tax on the superstructure in his capacity as owner. This situation is negated by the petitioner Doctor Amanullah saying that technically he is not an owner but a simple tenant and also that the rent of the superstructure is being paid to the Excise and Taxation Department by the Municipal Committee.

6. The statements of the witnesses kept in juxtaposition to the plea taken by Dr. Amanullah would reveal that the latter is trying to confuse the matter with the payment of tax of the land in question and not the superstructure. Anyhow, he has fully derived the benefit of either the technicalities or his connivance with the Municipal Committee or the grave ignorance of the Committee, which presently is not a party to the suit.

7. A "lessee in perpetuity" in the light of the actual connotation of the word and also in the light of Dictionary meaning of the word perpetuity, means and refers to a state of being perpetual; endless time: duration for an indefinite period: .something lasting for ever: an agreement whereby property is tied up, or rendered inalienable, for. ail time or for a very long time. The petitioner-plaintiff seems to be intelligently advised when one looks at the rent deed or deeds on file which he executes with the Municipal Committee for a period of one year only. By no stretch of any possible imagination the rent deed executed by the petitioner can be termed as deeds of a "lease in perpetuity" and hence Dr. Amanullah cannot be treated as "lessee in perpetuity" unless he is so made contractually liable against the Municipal Committee. Midway House Limited v. Assessing Authority NLR 1988 Tribunal Decisions (TD) 515 lays down the law in accordance with my above reasoning that occupant of land held by him which is a lease in perpetuity, is liable to assessment of property tax not only for land but also in respect of portion of construction raised on leased land. The Municipal Committee by entering into a 1-year lease deed (every year) with Dr. Amanullah has certainly made him not to be a "lessee in perpetuity" but a lessee for a very short period of only one year since the construction of superstructure in the year 1988-89. Whether it be a positive connivance of the Municipal Committee with Dr. Amanullah or whether it be the result of grave ignorance of the Municipal Committee Authorities, the fact remains that Dr. Amanullah has succeeded in professing not to be a "lessee in perpetuity". So far as his construction of the superstructure is concerned, this by itself does not make him an absolute owner. It was for the Municipal Committee, to have made him, through writing, a "lessee in perpetuity" of the land as well as the superstructure. Only then Dr. Amanullah petitioner would be or would have been liable to pay the tax of the land as well as the superstructure, being "lessee in perpetuity" and hence owner within the meanings of section 2(e) and 3(3) of the Act.

8. In case the Municipal Committee does not enter into such perpetual lease agreement with Dr. Amanullah, the desired property tax be recovered from the Municipal Committee.

Consequent upon what has been discussed above, it is held that the authorities having acted beyond the ambit of Urban Immovable Property Tax Act, 1958 and also there being an element of mala fide, the Civil Court does have the jurisdiction. The revision petition is accepted, the impugned judgments of the two Courts below are set aside and the petitioner Dr, Amanullah determined not to be a "lessee in perpetuity" is held not liable to pay the tax of the superstructure in dispute unless such perpetual lease deed is executed by the Municipal Committee with its tenant/lessee failing which the Municipal Committee since the time of construction of superstructure shall be deemed to be the owner under section 2(e) of the Urban Immovable Property Tax Act, 1958. In view of the legal question, involved parties are left to bear their own costs.

A.A./1607/P Revision accepted