Tayyab Sarwar Mir etc Vs Cantonment Board Gujranwala etc

Stereo.HCJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W. P. No.75694 of 2019

Tayyab Sarwar Mir & others. Vs. Cantonment Board, Gujranwala & others

JUDGMENT

Date of hearing: 08.12.2025

Petitioners by: M/s Rizwan Mushtaq and Syed Shahzad Bashir, Advocates for the petitioners.

Mr. Zaka-ur-Rehman Awan, Advocate for the petitioner in W.P.No.64867 of 2021.

M/s Zain Naqvi and Mian Danish, Advocates for the petitioner in W.P.No. 55507 of 2025. M/s Khurram Shahbaz Butt and Asif Ali, Advocate for the petitioner in W.P.No. 16259 of 2020. Mr. Shahmeer Ubeid, Advocate for the petitioner in W.P.No.39934 of 2022 and W.P.No.36920 of 2022. Barrister Muhammad Hamza Akhtar, Advocates for the petitioner in W.P.No.56809 of 2022.

M/s M. Javed Iqbal Qureshi, Shahid Iqbal Qureshi, Barrister Khurram Aamir, Advocates for the petitioner in W.Ps.No.27812, 40622, 44554 of 2023. M/s Adeel Hassan and Muhammad Muzammil Qureshi, Advocates for the petitioners in W.P.No.36622 of 2022, WP.No.62135 of 2022, W.P.No.22120 of 2023. M/s Abdur Rehman Bajwa and Raja Muhammad Zubair, Advocates for the petitioner in W.P.No.61996 of 2025. Barrister Musa Raza, Advocate for the petitioner in W.P.No.20488 of 2023.

M/s Muhammad Huzah Sheikh, Advocate in W.P. No.61962/2020.

Mr. Muhammad Arsalan Anwar, Advocate for the petitioner in W.P.No.63021 of 2023.

Malik Muhammad Abbas Farooq, Advocate for petitioners in W.P.No.22802 of 2021, W.Ps.No.50609, 59756, 66762 of 2022.

Barrister Asfundyar Khan Tareen and Mr. Arsalan Saleem Chaudhry, Advocates for the petitioner in W.P.No. 25204 of 2024.

M/s Sameer Khosa and Momal Malik and Maria Farooq, Advocates for the petitioner in W.P.No.80495 of 2023. Mian Danish Quddous, Advocate for the petitioner in W.P.No.23113 of 2019 & W.P. No.38426/2021. M/s Ahtisham ud Din Khan and Muhammad Nauman

Sarwar, Advocates for the petitioner in W.P No.61515 of 2020 and W.P.No.617 of 2022.

Mr. Noor Dad Chaudhary, Advocate for the petitioner in W.P.No.1870 of 2022.

M/s Mian Daood, Ahmed Abdullah and Abuzar Karim, Advocates for the petitioner in W.P.No.27450 of 2024. Mr. Farrukh Ilyas Cheema, Advocate for the respondent in W.P.No.56809 of 2022.

Barrister Pirzada M. Aurang Zaib, Advocate for the respondents in W.Ps.No.36920, 39934, 52414, 55139 of 2022 and W.P.No.1870 of 2023.

Rana Usama Farooq, Advocate for the respondent in W.P.No.64238 of 2022, W.P.No.41660 of 2023 and W.P.No.6905 of 2024.

M/s Muqarab Javed Ghumman and Ishtiaq Amir Hussain, Advocates for the respondent D.HA in W.P.No.55139 of 2022, W.Ps.No.56133 and 60815 of Mr. Haqnawaz Mushtaq, Advocate for petitioners in W.Ps No.75694/2019, 2792/2020 & 56133/2024. Mr. Hassan Latif Chaudhary, Advocate for the respondents in W.Ps.No.66762, 67143 and 59756 of 2022, W.P.No.15181, 30565, 41660 of 2023. Mian Asghar Ali, Advocate for the respondent- Cantonment Board in all the writ petitions. Mr. Ali Awais, Advocate for respondent No.3 in W.Ps.No.35447, 60815, 36147 and 60764 of 2024. Mian Muhammad Tahir, Advocate for petitioner in W.P. No.3627 of 2024.

Mr. Hammad Khalid Butt, Advocate for petitioner in W.P. No.7357/2022.

M/s Shahbaz Rashid Qureshi and Khalid Zaman Khan, Advocates in W.P. No.55687/2025.

Mr. M. Asif ur Rehman, Advocate on behalf of petitioner in W.P. No.24550/2024.

Mr. Hamid Shabbir Azar, Advocate for petitioner in W.Ps No.41818/2024, 41823/2024, 41853/2024, Mr. Samran Mushtaq Ch., Advocate for petitioners in W.Ps No.76611/2023 & 51352/2020.

Mr. Monum Naveed, Advocate for petitioner in W.P. No.59762/2024.

Respondents- M/s Mian Asghar Ali and Saba Rosheen, Advocates for department by: respondents-department. Mr. Farrukh Ilyas Cheema, Advocate for respondent- department in W.P. No.56809/2022.

M/s Ejaz Ahmad Goraya and Mohammad Yahya Omar Bajwa for respondents-department in W.P.7357/2022, Barrister Haris Sohl, Advocate for respondent No.1 in

W.P. No.36658/2023.

Mr. Zarak Zaman Khan, Advocate for respondent in W.P. No.2222/2023.

Mr. Hassan Latif Ch., Advocate for respondents- department in W.Ps.No.66762 of 2022, 15181/2023,

Mr. Adil Kahlon, Advocate for respondent-department in M/s Ali Awais, Advocate for respondent No.3 in W.P.

Nos.3542, 36142, 60764 & 60815.

Raja Muhammad Nasim, Advocate for the respondent/FBR in W.P.No.61996 of 2025.

M/s Barrister Muhammad Umer Riaz, Rana Rehan, Barrister Ali Aun Awan, Advocates for respondents- department Mirza Nasar Ahmad, Additional Attorney General for Pakistan.

Mr. Muhammad Hamza Sheikh, Assistant Attorney- General for Pakistan.

Barrister Zarghum Lakhesar, Assistant Advocate- General Punjab alongwith Naveed Ahmed, Assistant Director (Legal), LG & CD Department, Lahore.

Mr. Masoor Anwar, Office Superintendent (Legal), Imdad Hussain, Revenue Superintendent, Adnan Nazir, Legal Assistant on behalf of Lahore Cantonment Board in W.P. No.14837/2024 and 75894/2019.

Mr. Shabbir Hussain on behalf of Gujranwala Cantonment Board.

Ms. Asia Butt, Law Officer on behalf of respondent No.5 in W.P. No.75894 of 2019.

MALIK JAVID IQBAL WAINS, J. This single judgment shall decide the instant writ petition along with the connected writ petitions detailed in Annexure “A” as all the matters involve common questions of law and fact.

2.These bunch of petitions, being interconnected and arising out of a common grievance, were heard jointly and are being disposed of through this composite judgment. The principal and, in fact, the only substantial challenge raised by the petitioners is directed against the vires of Section 3 of the President’s Order No.13 of 1979.

3.By virtue of the said provision, the Cantonment Boards have been empowered to levy urban immovable property tax on the annual value of buildings and lands situated within its jurisdiction, in accordance with the scheme and provisions of the Cantonments Act, 1924 (hereinafter referred to

as “the Act”). The petitioners contend that the conferment of such authority under Section 3 of the President’s Order is constitutionally impermissible and therefore liable to be struck down.

4.At the very outset, it is pertinent to observe that learned counsel appearing on behalf of the parties confined their submissions exclusively to the question of the constitutional validity of Section 3 of the President’s Order No.13 of 1979. Although multiple additional grounds had been articulated in the pleadings, the same were neither pressed nor argued during the course of hearing.

5.In view of the foregoing discussion, we deem it appropriate to restrict the ambit of this judgment solely to the question of the vires of Section 3 of the President’s Order No. 13 of 1979, as no other ground has been pressed or argued before us.

6.For reasons to be recorded hereinafter, we find no substance in these petitions, accordingly, they stand dismissed. The dismissal of these petitions was announced in open Court on 18.12.2025. The detailed reasons forming the basis of that order are set out below.

7.The primary contention of the petitioners is that after the Eighteenth Amendment in the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter “The Constitution”), in 2010, Entry No.50 of the Fourth Schedule, Part-II has been modified and the words “on capital gains”, have been omitted therefrom, and as such the tax on immovable property is not a subject in the Federal Legislative List. Further the Cantonment Board, which is a Federal Body, is not competent to levy urban immovable property tax, hence the procedure prescribed for enhancement of the tax under Sections 60 to 63 of the Act has no legal value in the eyes of law.

8.The factual background giving rise to these petitions is that the petitioners are residents of the cantonment boards and Respondents No.1 and 2 issued demand notices for payment of property tax with respect to different properties situated in the cantonment area with a coercive condition that if the

said tax is not paid, the houses or other properties of the petitioners/occupants shall be sealed.

9.Elaborating further, learned counsel for the petitioners contends that, in terms of Section 3(1)(a) of the Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979 (President’s Order No.13 of 1979), the tax under the West Pakistan Urban Immovable Property Tax Act, 1958 ceased to be leviable within cantonment areas, and according to the petitioners, the Cantonment Boards could only levy tax in respect of properties vesting in or belonging to the Cantonment Boards themselves. It is further submitted that although the said Presidential Order was protected under Article 270-A of the Constitution, the same allegedly became void after the Eighteenth Amendment dated 08.04.2010 by virtue of Article 143 of the Constitution and, in any case, has become unenforceable due to the absence of executive authority under Article 97.

10.Expanding upon the constitutional objection, it is contended that after the Eighteenth Amendment, taxes on immovable property squarely falls within the provincial domain. Reliance is placed upon Entry No.50 of the Fourth Schedule to the Constitution, which, according to the petitioners, vests the legislative competence to impose taxes on immovable property in the Provincial Legislature and not in the Federation. It is thus asserted that, in the absence of approval or concurrence of the Provincial Government, neither assessment nor levy of such tax could lawfully be undertaken. It is further alleged that no approval was obtained from the Provincial Government, nor were any public notices issued or objections invited prior to determining the Annual Rental Value (ARV), rendering the assessment arbitrary and unsustainable in law.

11.Proceeding further, learned counsel submits that with the omission of the Seventh Schedule from the Constitution of the Islamic Republic of Pakistan, 1973, through the Eighteenth Amendment, President’s Order No. 13 of 1979 stood impliedly repealed and, consequently, became null and void, having no legal effect in the eyes of law.

12.It is further contended that under Section 60 of the Act, a Cantonment Board is empowered to impose only such taxes within its jurisdiction as may be imposed by the corresponding local government of the area in which the cantonment is situated, subject to prior sanction of the Federal Government. According to the petitioners, this authority is referential in nature and must be traced to the statutory framework governing municipalities and local governments, including the Punjab Local Government Ordinance, 1979, the Punjab Local Government Ordinance, 2001, the Punjab Local Government Act, 2013, and presently the Punjab Local Government Act, 2019. It is asserted that under these enactments, no power has been conferred upon the District/Zila Council to levy property tax on immovable properties. Such power, it is maintained, exclusively vests in respondent No. 4, i.e., the Government of Punjab, under the provisions of the Punjab Urban Immovable Property Tax Act, 1958.

13.Learned counsel for the respondent-Cantonment Boards, on the other hand, controverted the petitioners’ stance and argued that the Presidential Order No.13 of 1979 was accorded overriding effect and, by virtue thereof, the Urban Immovable Property Tax Act, 1958 ceased to apply within cantonment areas. It was contended that the said Order expressly authorized Cantonment Boards to levy and collect property tax within their respective jurisdictions in accordance with the Cantonments Act, 1924. It was further submitted that Article 270A of the Constitution was introduced to protect and preserve laws, actions, and instruments promulgated during the period of Proclamation from 5th July 1977 to 11 th November 1985, thereby granting constitutional validity and continuity to such measures, including the Presidential Order in question.

14.It was further argued that Article 270A ensures the continued operation of such laws and negates any concept of implied repeal. According to learned counsel, even after the Eighteenth Amendment, the Presidential Order No.13 of 1979 remains a valid and enforceable law unless expressly amended or repealed by the competent legislature through a legislative instrument. It was maintained that the subject of property tax has historically fallen within the provincial domain both before and after the Eighteenth Amendment, and that

the Amendment has not altered this position so as to invalidate the Presidential Order. Consequently, the levy of property tax in cantonment areas under the Presidential Order read with the Act lawfully continues, and the Cantonment Boards, being local self-government institutions, are competent to impose such tax in accordance with the statutory framework applicable to them, independent of the regime governing provincial property tax.

15.In view of the challenge to the constitutional validity of a legislative instrument, notices in terms of Order XXVII-A of the Code of Civil Procedure were duly issued to the learned Advocate General, Punjab, and the learned Attorney General for Pakistan. Learned Law Officers entered appearance on behalf of the Province and the Federation, respectively, and defended the vires of the impugned provision. They adopted and further reinforced the submissions advanced by learned counsel representing the concerned Cantonment Boards.

16.We have heard learned counsel for the parties, as well as the learned Law Officers representing the Province of Punjab and the Federation of Pakistan.

17.The sole and pivotal question that arises for determination in these petitions is whether, after the Eighteenth Amendment to the Constitution, enacted in the year 2010, Entry No.50 of Part II of the Fourth Schedule stood modified to the extent that the words “on capital gains” were omitted therefrom, and whether, as a consequence of such omission, taxation on immovable property ceased to remain a subject enumerated in the Federal Legislative List.

18.The next question, which flows from the foregoing discussion, is whether Section 3(1)(a) of the Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979 has, by reason of the aforesaid constitutional amendment, become ultra vires the Constitution.

19.In order to properly appreciate the above questions, it is necessary to briefly examine the constitutional position relating to taxation of immovable property. Historically, under the constitutional framework embodied in the

Government of India Act, 1935, and subsequently maintained in the Constitutions of 1956, 1962 and 1973, the subject of taxation on lands and buildings has consistently fallen within the legislative competence of the Provinces. Such legislative competence, however, was not unfettered; rather, it remained territorially confined and could only be exercised within the respective provincial limits.

20.At the same time, the constitutional position of Cantonment areas has always remained distinct from that of ordinary provincial territories. Cantonment areas, by contrast, have always occupied a distinct constitutional and administrative status. They constitute federally administered territories governed by the Act, a federal enactment, and the legislative authority with respect to their constitution, administration and governance lies exclusively within the domain of the Federation.

21.Cantonments, in their constitutional character, constitute federal enclaves established primarily for defense administration and governed by federal legislation. Their governance, regulation and fiscal administration fall within the exclusive competence of the Federation. The powers exercised by Cantonment Boards, including the power to impose municipal taxes, are therefore an incident of federal municipal governance within such enclaves and cannot be equated with or subordinated to the provincial taxation regimes applicable in ordinary municipal areas.

22.In this context, it is pertinent to note that prior to the promulgation of President’s Order No.13 of 1979, property tax in certain areas, including cantonments, was being levied under the West Pakistan Urban Immovable Property Tax Act, 1958. The subsequent constitutional and statutory developments are therefore to be examined in light of this historical and legislative background.

23.It is also a matter of record that in the year 1979, during the period when the Constitution stood in abeyance pursuant to the Proclamation dated 5th July, 1977, the then President, in exercise of powers derived from the said Proclamation read with CMLA Order No. 1 of 1977 and other enabling

provisions of law, promulgated President’s Order No.13 of 1979 (hereinafter referred to as “P.O. 13”) on 22nd August, 1979.

24.The said Order was couched in overriding terms and was expressly made operative notwithstanding anything contained in the Constitution or any other law for the time being in force. By virtue of P.O.13, the levy of tax under the West Pakistan Urban Immovable Property Tax Act, 1958 ceased to operate within cantonment areas. Simultaneously, the Cantonment Boards were authorized to continue to levy and collect property tax within their respective jurisdictions in accordance with the provisions of the Act. The legal effect of the Presidential Order was thus to exclude the operation of provincial property tax legislation in cantonment areas while preserving the taxing authority of the Cantonment Boards under the federal legal framework.

25.For the sake of convenience and to facilitate proper adjudication of the controversy involved, it is considered appropriate to reproduce the relevant extract of the Presidential Order in question. The reproduction of the pertinent provisions is undertaken to appreciate the legislative intent, scope and operative effect of the said Order within its constitutional context.

THE CANTONMENTS (URBAN IMMOVABLE PROPERTY TAX

AND ENTERTAINMENTS DUTY) ORDER, 1979

President's Order No.13 of 1979 [22nd August, 1979]

In pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (CMLLA Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make the following Order:-

1.Short title, extent and commencement.- (1) This Order may be called the Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979.

(2)It extends to all cantonments in Pakistan.

(3)It shall come into force at once and shall be deemed to have taken effect on the thirtieth day of November, 1977

2.Order to override other laws. This order shall have effect notwithstanding anything contained in the Constitution or any other law for the time being in force.

3.Urban Immovable property tax to cease to be leviable in cantonments.- (1) As from the commencement of this Order,-

(a)The tax leviable under the West Pakistan Urban Immovable Property Tax Act, 1958 (WP. Act No. V of 1958), shall cease to be leviable in a cantonment and

(b)the Cantonment Board of a cantonment shall continue to levy and collect, in accordance with the provisions of the Cantonments Act, 1924 (II of 924), the tax assessed on the annual value of buildings and lands.

(2)Eighty-five percent of the net proceeds of the tax referred to in paragraph (a) of clause (1), collected on or after the commencement of this Order, shall be paid by the Provincial Government to the Cantonment Board concerned.

(3)Fifteen percent of the net proceeds of the tax referred to in paragraph (b) of clause (1), collected on or after the commencement of this Order, shall be paid by the Cantonment Board concerned to the Provincial Government.

The aforementioned Presidential Order promulgated the Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979 (President’s Order No.13 of 1979), dated 22nd August 1979. Article 2 of the said Order expressly provides that this Order shall have overriding effect. The provision categorically declares that the Order shall operate notwithstanding anything contained in the Constitution or any other law for the time being in force, thereby giving it a clear overriding and superseding legal effect over all other existing legal provisions.

26.The language employed is unequivocally overriding in nature. It grants the Order supremacy over all existing laws, including constitutional provisions, during the operative constitutional dispensation prevailing at that time. By virtue of Article 3(1)(a), the levy of tax under the West Pakistan Urban Immovable Property Tax Act, 1958 ceased to be operative within cantonment areas. Simultaneously, Article 3(1)(b) mandated that the Cantonment Boards shall continue to levy and collect tax on the annual value of buildings and lands in accordance with the Act. Thus, the effect of the Presidential Order was twofold, firstly, it excluded the operation of provincial property tax legislation within cantonments, and secondly, it reaffirmed and preserved the authority of Cantonment Boards to levy and collect property tax under federal law.

27.The Order further established a fiscal distribution mechanism whereby 85% of the net proceeds collected by the Provincial Government on or after the commencement of P.O. 13 were to be transferred to the Cantonment

Boards. Conversely, 15% of the proceeds collected by the Cantonment Boards were required to be remitted to the Provincial Government. This scheme reflects a legislative intent to maintain fiscal equilibrium between the federal administrative control of cantonments and the financial interests of the Provinces.

28.Subsequently, when the Proclamation was revoked in the year 1985 and the Constitution was restored, the Constitution (Eighth Amendment) Act, 1985 was enacted, whereby various amendments were introduced in the Constitution of the Islamic Republic of Pakistan, 1973, including the insertion of Article 270-A. The said provision was incorporated with the object of affording constitutional protection to all actions, laws and other legal instruments promulgated during the period of Proclamation, i.e., from 5th July 1977 to 11th November 1985, the date on which the said amendment came into force. For facility of reference, Article 270-A of the Constitution is reproduced hereunder.

“270-A Affirmation of President's Orders, etc.

(1)The Proclamation of the fifth day of July, 1977, all President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O. No. 11 of 1984), *the Revival of the Constitution of 1973 Order, 1985 (P.O. No. 14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No. 20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O. No. 24 of 1985), and all other laws made between the fifth day of July, 1977, and the date* on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any court on any ground whatsoever :

Provided that a President’s Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.

(3)All President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactment, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority. Explanation.- in this clause. “competent authority” means -

(a)in respect of President's Orders, Ordinances, Martial Law Regulation Martial Law Orders and enactments, the appropriate Legislature and

From plain reading of Article 270-A of the Constitution reveals that it was inserted through the Constitution (Eighth Amendment) Act, 1985 with a specific constitutional purpose, to regularize, validate and preserve the legal framework created during the period commencing from 5th July 1977 until the revival of the Constitution.

29.A careful reading of clause (1) of Article 270-A reveals that it expressly affirms, adopts and declares valid the Proclamation of 5th July 1977 as well as all President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders and other laws promulgated during the aforesaid period. The provision further stipulates that such instruments shall be deemed to have been validly made by competent authority, notwithstanding any judgment of any Court and notwithstanding anything contained in the Constitution. The language employed is explicit, categorical and exclusionary in nature.

30.Furthermore, clause (3) of Article 270-A provides that all such President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws which were in force immediately before the coming into force of the said Article shall continue to remain in force until altered, repealed or amended by the competent authority. The explanation appended to clause (3) clarifies that, in respect of President’s Orders and similar instruments, the “competent authority” means the appropriate Legislature.

31.From combined reading of clauses (1) and (3) of Article 270-A leads to certain inevitable constitutional consequences. Firstly, any defect, whether procedural or relating to legislative competence, stood constitutionally cured, for once such instruments were affirmed and adopted by the Constitution itself, their legal force thereafter emanated from the Constitution rather than merely from the authority that originally promulgated them. Secondly, the phrases “notwithstanding any judgment of any court” and “notwithstanding anything contained in the Constitution” confer constitutional immunity upon such laws, rendering them immune from challenge on grounds of lack of competence, inconsistency with fundamental rights or violation of legislative lists, unless expressly repealed or amended by the competent Legislature.

Thirdly, clause (3) ensures their continuity in force until altered, repealed or amended by the appropriate Legislature, thereby excluding the operation of the doctrine of implied repeal. Consequently, a law protected under Article 270-A cannot lapse merely by implication or by a subsequent redistribution of legislative subjects.

32.It is also significant to note that President’s Order No.13 of 1979 was specifically included in the Seventh Schedule to the Constitution, which further reinforced its protected status by prescribing a special mode for its amendment. The inclusion of the said Order in the Seventh Schedule clearly manifests a deliberate constitutional intent to preserve and safeguard its operative field.

33.In this backdrop, the constitutional effect of Article 270-A is not merely declaratory but transformative in nature. The provision elevates the protected laws to a status insulated from ordinary statutory scrutiny, as their validity no longer remains dependent upon the original legislative competence of the authority that promulgated them but instead derives directly from constitutional affirmation. Consequently, President’s Order No.13 of 1979, having been expressly affirmed and adopted under clause (1) of Article 270-A and further protected through the continuity clause contained in clause (3) thereof, continues to remain operative and effective unless and until it is expressly altered, repealed or amended by the appropriate Legislature. Any contention founded upon implied repeal or subsequent redistribution of legislative competence must, therefore, yield to the overriding constitutional command embodied in Article 270-A.

34.In view of the foregoing constitutional position, President’s Order No.13 of 1979 continues to enjoy full constitutional protection under Article 270-A and remains operative unless expressly altered or repealed by the competent Legislature.

35.It is further observed that this Court, through judgment dated 24.07.2001 passed in Writ Petition No.4807 of 1991, had already upheld the constitutional protection enjoyed by President’s Order No.13 of 1979. The said judgment was subsequently affirmed by the Hon’ble Supreme Court of

Pakistan in SARGODHA TEXTILE MILLS LIMITED vs. FEDERATION OF PAKISTAN through Secretary, Ministry of Defense, Rawalpindi and 3 others (PLD 2004 SC 743), the operative part is hereby reproduced hereinafter: - “5. We have considered the arguments of learned counsel for the parties and scanned the material available on the record as well as the impugned judgment. We have also gone through the above mentioned Constitutional provisions as well as the provisions of Presidential Order No. 13 of 1979: The said Presidential Order stands protected by virtue of the provisions contained in Article 270-A of the Constitution even though it may contain provisions, which are not in conformity with the items set out in the Federal Legislative list. Article 3 of the aforesaid: Presidential Order provides that the tax leviable under the West Pakistan Urban Immovable Property Tax Act, 1958 shall cease to be leviable in a Cantonment. The arguments of learned counsel for the petitioner are not tenable because the learned High Court has exercised its discretion in accordance with settled norms of justice warranting no interference by this Court.”

Consequently, the issue relating to the constitutional validity and continued enforceability of P.O.13 stands conclusively settled by this Court as well as by the Hon’ble Supreme Court of Pakistan.

36.Notwithstanding the foregoing constitutional position and the authoritative pronouncement of the Hon’ble Supreme Court, the principal contention advanced on behalf of the petitioners is that, after the amendment of Entry No.50 of the Federal Legislative List through the Constitution (Eighteenth Amendment) Act, 2010, President’s Order No.13 of 1979 ceased to remain a valid law. The argument proceeds on the premise that, following the said amendment, the subject of “taxes on lands and buildings” now falls exclusively within the legislative competence of the Provinces and, therefore, the impugned Presidential Order can no longer sustain its validity

37.In view of the constitutional position already discussed and the protection accorded to President’s Order No.13 of 1979 under Article 270-A, the submission advanced by the petitioners, upon careful examination, is found to be misconceived. It is an admitted constitutional position that both prior to and subsequent to the Eighteenth Amendment, the subject of taxation on lands and buildings was not enumerated in the Federal Legislative List. Nor was it contained in the Concurrent Legislative List prior to its omission.

The subject, therefore, always lay within the residuary legislative domain of the Provinces even before the Eighteenth Amendment. The constitutional amendment did not affect any substantive transfer of this subject from the Federation to the Provinces, the position in that regard remained materially unchanged. Consequently, a mere redistribution or clarification of legislative entries cannot, by itself, invalidate a law which stands independently protected by specific constitutional provisions.

38.Even otherwise, assuming for the sake of argument that the post- Eighteenth Amendment constitutional framework places exclusive competence over property taxation within the Province, such competence does not automatically extinguish an existing law which has been expressly validated and preserved by the Constitution itself. As already noted, Article 270-A(1) affirmed, adopted and declared valid all President’s Orders promulgated during the specified period, notwithstanding anything contained in the Constitution. Furthermore, Article 270-A(3) mandates that such laws shall continue in force until altered, repealed or amended by the competent authority.

39.Additionally, Article 270-AA(7), substituted through the Eighteenth Amendment, expressly provides:

(7)“Notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to be levied until they are varied or abolished by an Act of the appropriate legislature.”

40.The non obstante clause embodied in Article 270-AA(7) reinforces fiscal continuity and places beyond doubt that taxes lawfully levied prior to the Eighteenth Amendment shall persist unless expressly varied or abolished by the appropriate legislature. The constitutional design is explicit: continuity is automatic, repeal requires legislative action. Therefore, the tax being levied within cantonment areas under P.O. 13 read with the Cantonments Act, 1924 continues by direct constitutional command. The theoretical placement of “property tax” within provincial legislative competence does not ipso facto nullify a constitutionally validated and protected enactment. Redistribution of

legislative competence cannot override the express mandates of Articles 270- A(1), 270-A(3) and 270-AA(7). In the absence of an express enactment by the appropriate legislature altering, repealing or amending P.O. 13 of 1979, the said Order continues to hold the field. The argument that it stood repealed by operation of law after 18th Amendment is therefore legally untenable and contrary to the constitutional scheme.

41.It was further contended by learned counsel for the petitioners that the omission of the Seventh Schedule through the Constitution (Eighteenth Amendment) Act, 2010 extinguished the special constitutional protection earlier available to President’s Order No.13 of 1979. According to the petitioners, since “taxes on lands and buildings” fall within provincial legislative competence, the said Order stood impliedly repealed after the Eighteenth Amendment. The submission, however, proceeds on a misapprehension of the constitutional architecture of Article 270-A. Article 270-A(1) expressly affirmed, adopted and declared valid all President’s Orders made between 5th July 1977 and 11th November 1985, notwithstanding any judgment of any Court and notwithstanding anything contained in the Constitution. This constitutional validation was not contingent upon the continued existence of the Seventh Schedule, rather, the said Schedule merely regulated the mode of amendment of certain specified laws.

42.Furthermore, Article 270-A(3) unequivocally provides that all such laws “shall continue in force until altered, repealed or amended by competent authority” the Explanation appended thereto clarifies that, in respect of President’s Orders, the competent authority means the appropriate Legislature. The constitutional command is thus explicit, continuity is the rule, whereas alteration or repeal must be affected through express legislative action.

43.In circumstances where the Constitution itself mandates express repeal, the doctrine of implied repeal stands excluded. The doctrine of implied repeal operates in the sphere of ordinary statutes, where a later inconsistent law may displace an earlier one, however, it cannot operate against a law which derives its force directly from constitutional affirmation. A statute so constitutionally

entrenched does not yield to implication but can be displaced only through express constitutional or legislative intervention in the manner prescribed by the Constitution.

44.Prior to the Eighteenth Amendment, clause (6) of Article 270-A created a procedural distinction in respect of the amendment of laws protected under the said Article. Laws enumerated in the Seventh Schedule, including President’s Order No.13 of 1979, could only be amended in the manner prescribed for amendment of the Constitution, whereas other validated laws could be amended by the appropriate Legislature in the ordinary legislative manner.

45.After the Eighteenth Amendment, this procedural distinction was removed and Article 270-A(6) was substituted to provide that:

“(6) The laws referred to in clause (1) may be amended by the appropriate Legislature in the manner provided for amendment of such laws.”

46.The effect of this amendment was merely procedural simplification rather than substantive repeal. It relaxed the earlier rigidity by removing the requirement of constitutional amendment for altering certain protected laws. However, it did not withdraw the constitutional validation granted under clause (1), nor did it disturb the continuity mandated under clause (3) of Article 270-A.

47.That the omission of the Seventh Schedule is to be construed as effecting a change only in the procedure relating to amendment, and not as withdrawing the constitutional protection that had previously been extended to the laws enumerated therein. Had the framers of the Eighteenth Amendment intended to repeal any specific President’s Order, including P.O. No. 13 of 1979, such intention would have been articulated in clear and unequivocal terms, since the repeal of a law enjoying constitutional protection cannot be inferred by implication.

48.It is also well settled that the redistribution of legislative subjects brought about by the Eighteenth Amendment does not ipso facto annul pre-

existing laws enjoying constitutional protection. Legislative competence and constitutional validation operate in distinct constitutional spheres. Consequently, even if a subject subsequently falls within provincial legislative competence, a law validated under Article 270-A continues to remain operative until it is expressly repealed or amended by the appropriate Legislature.

49.In view of the above constitutional position, the contention that President’s Order No.13 of 1979 stood impliedly repealed after the Eighteenth Amendment is legally untenable. In the absence of any express repeal or amendment by the appropriate Legislature in terms of Article 270-A(3) read with clause (6) thereof, the said Order continues to hold the field.

50.It follows, therefore, that even if legislative competence in respect of “taxes on lands and buildings” is regarded as falling within the provincial domain, such redistribution of legislative fields does not, ipso facto, extinguish an existing tax protected by constitutional continuity. Pre-existing laws do not stand abrogated merely by virtue of redistribution of legislative competence, rather, their alteration or repeal must be affected through express legislative intervention.

51.It is also pertinent to note that cantonments constitute federal territories governed by the Act, and their administration falls within the exclusive domain of the Federation. Section 60 of the said Act expressly empowers the Cantonment Boards to impose taxes, including taxes on lands and buildings, as part of the statutory scheme of local self-government within cantonment areas. President’s Order No.13 of 1979 operates in harmony with this statutory framework. It neither creates an independent or alien levy nor introduces any unconstitutional exaction; rather, it regulates and preserves the fiscal field within cantonment areas by excluding the operation of provincial property tax legislation and reaffirming the authority of Cantonment Boards under federal law. Significantly, no constitutional amendment, including the Constitution (Eighteenth Amendment) Act, 2010, has altered the federal control over the administration and governance of cantonments, and the constitutional allocation of authority in this regard continues to remain intact.

52.Subsequently, the Sindh Assembly enacted the Sindh Urban Immovable Property Tax (Amendment) Act, 2024, whereby the Provincial Legislature expressly addressed the field previously regulated by President’s Order No.13 of 1979, which is reproduced as under for clarity, Section 3-B(5) of the said Act specifically provides that Article 3 of the Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979 (President’s Order No.13 of 1979), to the extent of the Province

of Sindh, stands repealed subject to the provisions contained in that section. This legislative action is constitutionally significant. It demonstrates that the repeal of P.O.13 was affected through an express statutory provision enacted by the competent Legislature, thereby affirming the settled principle that repeal of a law enjoying constitutional protection cannot be presumed or inferred by implication. The enactment of an express repealing provision further reinforces the interpretative position that President’s Order No.13 of 1979 continued to operate and hold the field unless and until it was specifically repealed through legislative intervention by the appropriate Legislature.

53.The position is further reinforced by Article 270-AA(7), inserted through the Constitution (Eighteenth Amendment) Act, 2010, which safeguards all taxes and fees levied under laws in force immediately prior to the Amendment and declares that such levies shall continue until varied or abolished by an Act of the appropriate Legislature. The tax levied under P.O.13 read with the Cantonments Act, 1924 therefore falls within this protective constitutional framework ensuring fiscal continuity.

54.It is observed that the constitutional validity and continued enforceability of P.O. No. 13 of 1979 have been duly recognized by the superior courts. Furthermore, the subsequent legislative conduct of the Province of Sindh, particularly instances where the Provincial Legislature has expressly repealed the said Order where considered necessary demonstrates a clear legislative acknowledgment that the Order remained operative unless expressly amended or repealed.

55.It is a settled principle of constitutional interpretation that where the Constitution itself validates and preserves a law through a saving clause, the continued operation of such law cannot be defeated merely by changes in legislative competence or redistribution of legislative subjects. Constitutional validation operates independently of legislative lists and remains effective until displaced by express legislative action. The cumulative effect of Articles 270-A, 270-AA, the statutory framework of the Cantonments Act, 1924, and the binding pronouncements of the superior courts leaves no room for doubt

that President’s Order No.13 of 1979 continues to operate with full constitutional protection.

56.In view of the foregoing discussion, we are of the considered opinion that President’s Order No.13 of 1979 continues to remain in force and to hold the field unless and until it is expressly altered, repealed or amended by the appropriate Legislature in accordance with the Constitution.

57.It is accordingly declared that Section 3(1)(a) of the Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979 is valid, constitutional and intra vires the Constitution. It is a settled principle that legislation enjoys a presumption of constitutionality and courts must lean in favor of upholding a statute unless it is ex facie violative of the Constitution, as reiterated by the Hon’ble Supreme Court in Messrs. RAJBY INDUSTRIES KARACHI and others vs. FEDERATION OF PAKISTAN and others (2023 SCMR 1407), the relevant extract is reproduced hereinafter: - “12. The doctrine of ultra vires envisages that an authority can exercise only so much power as is conferred on it by law. An action of the authority is intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit. To a large extent the courts have developed the subject by extending and refining this principle. If an act entails legal authority and it is done with such authority, it is symbolized as intra vires (within the precincts of powers) but if it is carried out shorn of authority, it is ultra vires. The law can be struck down if it is found to be offending against the Constitution for absenteeism of lawmaking and jurisdictive competence or found in violation of fundamental rights. It is also a well-known exposition that the law should be saved rather than be destroyed and the court must lean in favor of upholding the constitutionality of legislation unless ex facie violative of a Constitutional provision. The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary....”

Similar view was taken in Syed SAAD ALI vs. FEDERATION OF PAKISTAN through Secretary Ministry and others (2026 SCMR 22), wherein the apex Court has held as under: -

7.The terms intra vires and ultra vires are both Latin phrases, and diametrical opposites. The expression ultra vires means beyond the powers . If an act entails legal authority and it is done with such

authority, it is symbolized as intra vires, that is, within the precincts of powers, but if it is carried out shorn of authority, it is ultra vires. It is well-settled that the constitutionality of any law, rules, or regulations, can be scrutinized and surveyed, and the law can be struck down if it is found to be offending the Constitution due to an absence of law-making and jurisdictive competence, or found in violation of the fundamental rights enshrined therein. At the same time, it is an established precept of the interpretation of laws, one backed by judicial sagacity and prudence in the form of numerous precedents of the superior courts, that the law should be saved rather than be destroyed and the court must lean in favor of upholding the constitutionality of legislation unless it is ex facie violative of a constitutional provision. The function of the judiciary is not to legislate or question the wisdom of the legislature in making a particular law, nor can it refuse to enforce a law. The doctrine of severability permits the court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder. The words contained in statutes, rules, or regulations, are first to be understood in their natural, ordinary, or popular sense, and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute, to suggest the contrary. The vires of law, rules, or regulations can be challenged if its provisions are ex facie discriminatory, in which case actual proof of discriminatory treatment is not required to be shown, but there is also a presumption in favor of the constitutionality of the enactments, unless it is ex facie violative of a constitutional provision.

Consequently, the levy and collection of property tax by the Cantonment Boards under President’s Order No.13 of 1979 read with the Act is lawful and within their lawful competence.

58.It was argued by the learned counsel for the Cantonment-Boards that through the 26th Constitutional Amendment dated 21st October, 2024, Parliament amended Entry No.2 of the Federal Legislative List contained in the Fourth Schedule to the Constitution of the Islamic Republic of Pakistan, 1973, whereby legislative competence in respect of local taxes, fees, cess, charges and tolls in Cantonment Areas has been expressly vested to the Federation of Pakistan. The amended Entry No. 2 reads as follows:

“2. Military, naval and air force works; local self-government in cantonment area, [local taxes, fees, cess, charges, tolls in such areas,] the constitution and powers within such areas of cantonment authorities, the regulation of house accommodation in such areas, and the delimitation of such areas,”

According to the learned counsel, by virtue of the aforesaid constitutional amendment, Parliament now possesses the legislative competence to enact

laws relating to local taxes, fees, cess and other levies within Cantonment Areas. However, since the validity, scope, and legal effect of the 26th Constitutional Amendment are not directly in issue in the present proceedings, therefore, this Court has consciously refrained from examining the implications thereof in the instant matter. The question regarding the effect and application of the said amendment shall be considered, if required, at an appropriate stage in proceedings, where the issue directly arises for determination.

59.No constitutional infirmity or illegality is discernible in the impugned actions. Consequently, all these constitutional petitions, being devoid of merit, stand dismissed. No order as to costs.

60.Through this judgment, we have only decided the question regarding the vires of P.O.13, therefore, the petitioners are at liberty to raise their individual grievances afresh before the respondents or independently before an appropriate forum including this Court, in accordance with law.

(ABID AZIZ SHEIKH) (MALIK JAVID IQBAL WAINS)

JUDGE JUDGE

APPROVED FOR REPORTING.

JUDGE JUDGE

Usman*