Rashid Mehmood Vs The State

-a

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) W.P. No. 1517-N2021

Professor Dr. Alamzeb Manan & Jive others. (Petitioners)

VS

Executive Officer Cuntonment Board ond three others.

(Respondents)

Present ill/s Zahid Idrees Mufti ond Shahid Kamal, Advocotes for the petitioners.

Malik Woseem Fazal, Advocate for the respondents.

Date of hearing: 29.05.2025

JUDGMENT

SADIO ALI. J.- Through the instant writ petition, the petitioners have prayed as under.

"It is, thereJbre, humbly prayed that on acceptance of this writ petition, this Honourable Court may hold qnd declare:-

1.That the petitioners are retired Govt servants and entitled to tax exemption of annual property d$ taxes as per provisions o/ SRO 156(D/2004 dated 13.03.2004.

2.That the impugned notices for enhanced annual property tqx be declqred illegal and void ab initio being issued without complying with the mandatory conditions of law.

2.Through the instant constitutional petition under Article 199 of the Constitution of the Islamic (D.8.) Hon'ble Mr. Justice Sadiq Ali Ilon'ble Mr. Justice Syed Mudasser Amcer

Republic of Pakistan, 1973, the petitioners, formerly errployed at Ayub Medical College, Abbottabad, as Assistant Professors in their specialized fields and got retired after completion of their services. They have impugned notices issued by the Cantonment Board Abbottabad under Section 60 of the Cantonments Act, t924, demanding payment of property tax on their residential properties situated within the cantonment area. The petitioners seek a declaration that the said notices are illegal, without lawful authority, and violative of their rights, asserting that, as retired government servants, they are entitled to exemption from property tax, a benefit consistently extended to them by the Cantonment Board in the past.

3.Arguments heard and available record gone through.

c 4. Perusal of record reveals that no doubt, Section 60 of the Cantonments Act, 1924, empowers the Cantonment Board to impose taxes, including property tax, in accordance with the procedure prescribed therein, while Section 64 mandates that such tax be levied on the annual value of properties within the cantonment. However, Section 99 of the Act provides for exemptions, including for properties belonging to certain categories, and the consistent (D.B.) Hon'ble Mr. Justice Sadiq Ali Ilon'ble Mr. Justice Syed Mudasser Ameer

practice of the Cantonment Board Abbottabad has been to extend such exemptions to retired public servants, including the petitioners, in the light of S.R.O No. 156(l)12004 dated 23'd February, 2004, which reads as under;

CANTONMENTS ACT, 1924

[23rd February, 2004) (Exemptions in poyment of house or property tax) ^S.R.O. 156(I)/2004, dated 13.3.2004. In exercise of the powers conferred by Section 99A of the Cantonments Act, 1924 (II of 1924), and in supersession of its Notffication No. S.R. O. 1207(1)/79, dated the 22''d December, 1979, the Federal Government is pleased to grant the following exemptions, in payment of house or propere tax imposed under Section 60 of the aforesaid Act, on the lands and buildings situated within the cantonment limits in Pakistan, namely:-

(a)l0% of the annual tox, on account of cost of repairs and other expenditure incurred to maintain the building in a condition in which it may fetch the gross annual rent;

(b)5% of the annual tax, in a case in which the tax in ,,,f respect of a financial year is paid in lump sum before the 30th day of September in that year;

k) 60% off the annual tax payable in respect of one- house in any cantonment in Pakistan owned by a person or the spouse of such person whether self- occupied or rented out either wholly or in part, who is Federal Government or a Provincial Government of a Cantonment Board servant, exemption will be permissible to those serving employees who are regularly employed by a Competent Authority of the aforesaid authorities. A Cantonment Board servant (D.8.) IIon'ble Mr. Justice Sadiq Ali Hon'ble Mr. Justice Syed Mudasser Ameer

would mean a seryant of a Board holding a substantive whole time appointment under the Board paid from the Cantonment Fund. Persons appointed on contract under rule 9 of the Pakistan Cantonments Servants Rules, 1954 or those employed on ad-hoc or purely temporary basis will not be entitled to this exemption;

(d)100% of the annual tax payable in respect of one house in any contonment in Pakistan owned by a retired Federal Government or a Provincial Goyernment or a Cantonment Board servant or hts/her spouse whetlter self-occupied or rented out either wholly or in part. Exemption will be permissible to those retired servants who have retired after superannuation or after compleling qualifying pensionable service. Those retired compulsorily removed from service, prematurely retired due to fault or discipline or dismissed.fro* service will not be entitledfor the exemption,' @ 100% exemption of the annual tax payable in dt' respect of one house in any cantonment in Pakistan owned by a widow of any Federal Government or a Provincial Government or a Cantonment Board servant whether self-occupied or rented out wholly or in part. The exemption will be permissible to minors till attaining age of adulthood in case of joint ownership ofwidow with minor children,. and (fl exemption in clauses (c) to (e) will be admissible in case of a joint ownership of a house by a serving or retired Federal Government or Provincial Government or a Contonment servant or a widow of such persons with others to the extent of his or her ow ner s hip pr opor t i onate ly.

(D.8.) Hon'ble Mr. Justice Sadiq Ali Hon'ble Mr. Justice Syed Mudasser Ameer

The principle of legitimate expectation imposes a duty on public authorities to act fairly and consistently with established practices unless such practices are altered through a transparent and lawful process. The respondents have failed to produce any notification, resolution, or amendment under the Cantonments Act, 1924, withdrawing the exemption previously granted to retired public servants. The issuance of the impugned notices, without affording the petitioners an opportunity to be heard, violates the principles of natural justice, and is thus unsustainable.

The status of the employees of Ayub Medical College as government servants, stands settled in the light of earlier judgment of this Court rendered in the case of "Muhammad Shiraz Vs. The Chief Secretary, Govt.

of KPK, Peshawar and others" (WP No. 648-N2012) J decided on 17.01 .2013.

5.Under Section 3 of the MTI Act, the Ayub Teaching Hospital is no doubt an autonomous body, but this change was brought after 2015, which would not alter the status of the petitioners, who retired when the hospital was a government institution under the Ayub Medical College (Board of Governors) Ordinance, 1978. In the case of "Dr. Abdul Nabi, Professor, Department of Chemistry, University of (D.8.) Hon'ble Mr. Justice Sadiq Ati Hon'ble Mr. Justice Syed Mudasser Ameer

Bolochitsan, Sariab Road, Quetta Vs. Executive Officer, Cantonment Board, Quetta" reported as 2023 SCMR 1267 honourable Supreme Court of Pakistan was pleased to hold that;

('In the case in hand, the employees of the University, in line with the provisions of the UOB Act are deemed to be public servants within the meaning of section 21, P.P.C., which denotes that they shall be dealt with strictly during the course of duties os compared to other classes and genres of persons mentioned in the definition of public servonts. According to Black's Law Dictionary, Ninth Edition, Pg. 477-478, the meaning of the word "Deem" is to treat (something) as if it were really something else, or it has qualities that it does not have.

"'Deem' has been traditionally considered to be a useful word when it is necessary to establish a legal fiction either positively by cf 'deeming' something to be what it is not or negatively by 'deeming' something not to be what it is...". In order to interpret the statute, the Court is obligated to give effect to the deeming provisions while taking into consideration the object of such legal fiction and olso dredge up the rationales of statutory fiction to its cogent finale vis-d-vis the intention of legislature so it should not cause any injustice. Legal fictions give rise to explicit ob.jectivbs restricted to the purposes which should be construed contextually but should not be elongated (D.8.) Hon'ble Mr. Justice Sadiq Ali Hon'ble lllr. Justice Syed Mudasser Ameer

further than the legislative wisdom for which it has been created. In the case of All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2012 SC 1), this Court, while referuing to the case of Mubeen-us-- Salam v. Federation of Pakistan (PLD 2006, SC 602), held that the purpose of importing a deeming clause is to place an artfficial construction upon a word/phrase that would not otherwise prevail and sometimes it is to make the construction certain. It was further held that o deeming clause ,s a fiction, which cannot be extended beyond the language of the section by which it is created or by importing another fiction. In the case of Anwar Aziz Chaudhry v. The state (1991 SCMR 994), this Court held that in an enactment specffic fficers or persons holding specific ffices in an organization may be particularized as persons falling within the definition of 'public servant', or those who normally would not fall within that categorlt may be treated as falling / within that definition, or all persons working in that organization may be deemed as falling within that definition. The obsence of definition section in an enactment does not meon that the persons concerned who are covered by the enactment ore not to be treated at all as public servants. What it means is that section 21 of the P.P.C. would come into play, which will determine which of such persons, can be treated as falling in the category of public servants. In the case of Alehreen Zaibun Nisa y. Land (D.8.) llon'ble Mr. Justice Sadiq Ali Hon'ble lllr. Justice Syed Mudasser Ameer

Commissioner, Multan and others (PLD 1975 ^SC 397), it was held that when a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwelling Company Ltd. v. FinsburY Borough Council that "where the statute says that you must imagine the state of affairs, it does not say that having done so you must couse or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affatrs". In the case of Central Bureau of Investigation, Bank Securities and Fraud Cell and others v. Ramesh Gelli and others ((2016) 3 SCC 788), the Court dilated upon the situation when the Rajasthan Municipalities Act, 1959 deemed every member to be a public servant .r/ within the meaning of Section 21 of the Penal Code, 1860 and the Court observed that when the legislature creates a legol fiction, the court has to ascertain for what purpose the fiction is created and after ascertaining this, to assume all those facts and consequences which are incidental or inevitable corollaries for giving effict to the fiction and finally held tltat there ,s no escape .fro* the conclusion that the Appellant ,s a public servant within the meaning of section 2l of the Penal Code.

(D.8.) Hon'ble Mr. Justice Sadiq Ali Hon'ble Mr. Justice Syed Mudasser Ameer

Whereas in the case of G.A. Monterio v. The State of Ajrner (AIR 1957 SC 13), the Court held that the true test to determine whether a person is an fficer of the government, is:

(1)Whether he is in the service or pay of the Government, and (2) whether he is entruste,l wilh the performance of aryt public duty qn4 if both these requirements are satisfied it matters not the least what is the noture of his ffice, whether the duties he is performing are of on exalted character or very huntble indeed. "

6.The petitioners, having retired prior to the hospital's transition, retain theil status as public servant and the impugned demand notice issued by the respondents are not in accordance with law Accordingly, we allow this petition and set-aside the irnpugned demand notices, issued by the respondents.

Announced

1 u.litrl.*

ta9#n

JU GE

(D.8.) ilon'ble Mr. Justice Srdiq Ali IIon'ble Mr. .lustice Syed N{udasscr Ameer