KARACHI: An appellate bench of High Court of Sindh comprising Justice Muhammad Junaid A Ghaffar and Justice Agha Faisal disposed of a number of petitions filed by the residents of cantonment area challenging notices issued under section 68 of the cantonment Act 1924.
The bench set aside the notices being pre-mature. However the respondents/ authorities were allowed to send fresh notices, provide hearing and evaluate objections before passing any order. The respondents were also restrained from taking coercive action against the petitioner till decision.
According to details, the petitioners have assailed notices issued under section 68 of the Cantonment Act 1924 (“Act”), whereby assessment of house tax had been proposed, and demand notices, issued pursuant thereto.
The counsel for petitioners submitted that petitioners preferred objections to the proposed assessments, per section 68 of the Act, and upon receiving no response also filed applications under section 71(c) of the Act, and therefore any demand during tenancy of such proceedings was unmerited in the very least.
The Counsel for the cantonment board submitted that the present petitions were not maintainable since the petitioners ought to have assailed the notices / demands in appeal, per section 841 of the Act read with SRO 1293(I)/2008 dated 22.12.2008. Reliance was placed on Nisar2 , Aminullah3 and Fecto4 , being judgments of learned Single Benches of the Lahore High Court wherein the exercise of writ jurisdiction was declined since the objections of the 1 84.
The petitioners’ counsel in response submitted that the objections to the proposed assessment were never determined by the assessment committee, as required per section 68 of the Act.
The bench after detailed hearing held that Respondent’s counsel has articulated no cavil in respect of such assertion and nothing has been placed on record to demonstrate to the contrary either. In view hereof, it is prima facie manifest that the requirements of section 68 of the Act have not been satisfied, prior to issuance / enforcement of demand upon the petitioners
The judgments of the honorable Lahore High Court, mentioned supra, are distinguishable in the present facts and circumstances as they uphold the remedy of statutory appeal, once the objections to the proposed assessments had already been determined by the competent authority. The same is admittedly not the case before us.
The orders of this High Court and the august Supreme Court, cited by the respondent’s counsel, lend credence to our view that the right of a person to be heard, prior to any assessment being finalised, cannot be abridged. 8. Petitioners’ counsel has remained unable to assist us with regard to whether a person aggrieved was entitled to invoke section 71 of the Act, as of right, in place of recourse to an appeal under section 84 of the Act. However, no deliberation on this issue is merited in the present facts and circumstances as the law does not envisage authentication of an assessment unless an assessment committee has considered all objections and rendered its decision in such regard the bench held adding that In view of the reasoning and rationale herein contained, we do hereby dispose of the present petitions in the following terms:
i. The impugned demand notices are hereby set aside, inter alia, on account of being premature.
ii. The competent authority (assessment committee) is directed to issue notice/s, to the petitioners, of hearing, to determine their objections to the assessments proposed.
iii. The petitioners have the right to submit their replies in writing, provided that the written submissions are received by the competent authority on or before the designated time / date upon which the hearing has been scheduled in respect thereof.
iv. The petitioners shall remain entitled to rely upon such material, record and / or evidence as may be relevant, inclusive of without limitation the material pleaded before us and / or relied upon in their respective applications per section 71 of the Act.
v. The competent authority shall, by way of a reasoned order, issue a determination in accordance with the law with respect to each petitioner.
The bench further ordered that It expects that the competent authority shall conclude the proceedings expeditiously, preferably within one month hereof, however, until determination of the matter no coercive action, in respect of the proposed assessments impugned before us, may be taken by the respondents against the petitioners. vii. Any person aggrieved by any such determination, in whole or in part, may be entitled to seek such relief before such forum and in such proceedings as may be permissible in law.