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ADVOCATES & LEGAL CONSULTANTS

Ref. # ALA/84/09/2018
Ashraf Ali Butt Date 05/09/2018
Advocate High Courts
Reg. # 3161/HC/Karachi

Mrs. Rehmatunisa
Advocate High Courts
Reg.# 9852 /HC/Karachi

To,
Cantonment Executive Officer
Malir Cantonment Board
Karachi.

Sub:- Const. Petition No D-4512/2018.

Thanks for assigning the subject petition, it pertains to levy of Shop Board Tax /
Fee. The resolution of this issue is not difficult but we are removing water from the
well for its cleaning instead of removing the dog. I beg to submit and intend to
fortify the history of this issue.

The Excide Pakistan Limited filed a Const. Petition No D-3559/2010 against the
Cantonment Board Clifton, which was heard on 06-10-2011. The CB Clifton was
represented by one of Ex-Director of ML&C Department, late Mr. Jamaluddin
Ansari, where wrong interpretation of law was made and contrary to the
Notification 571(1)/66, the submissions were made. The High Court allowed this
Petition and the matter has been reported in 2012 CLC 1125. The author of the
judgment in High Court was the then Chief Justice Mr. Justice Musheer Alam.

The judgment of the learned Division Bench was impugned before Honorable Apex
Court by Mr. Khalid Javed Advocate by filing Civil Petition No 76-K of 2012. The
Civil Petition was disposed of by order dated 13-05-2013, wherein it was agreed by
the learned counsel, appearing for the board shop board fee is in fact a tax and
respondent will pay the same according to the notification issued in compliance of
sections 60, 61 & 62 of the Cantonments Act, 1924.

After passing order dated 13-5-2013, the CBs were free to recover shop board tax
and only a notification was to be promulgated if it was not already in field but
unfortunately nothing was done on this issue.
On 04-12-2014 Const. Petition Nos. D-126/2012, 381/2012, 3777/2012,
4173/2012, 1804/2013, 2583/2013, 257/2014 542/2014, 543/2014, 540/2014
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[2]

On 04-12-2014 Const. Petition Nos. D-126/2012, 381/2012, 3777/2012,

4173/2012, 1804/2013, 2583/2013, 257/2014 542/2014, 543/2014,
540/20141180/2014, 3670/2014 & 4319/2014 came up for hearing before Sindh
High Court. Most of these petitions were represented by me and in order, the
learned Division Bench observed that since the Cantonment Board are already
agreed in Supreme Court in Civil Petition No. 76-K of 2012 that the shop board fee
is in fact a shop board tax and the Honorable Supreme already passed order,
therefore all these petitions are disposed of in the line of the order already passed
by the Honorable Supreme Court on 13-05-2013 that CBs are free to recover shop
board tax after satisfying sections 60, 61 & 62 of the Cantonments Act.

I informed the then Cantonment Executive Officer Mr. Shahrome Safdar Khatak
that the order passed by the learned Division Bench of Sindh High Court is not
against the Cantonment Board but it is in the line of the order already passed by
Honorable Supreme on 13-05-2013 on submissions made by the counsel appearing
for the Cantonment Board but it was not agreed and different lawyers from the
town were contacted, where someone demanded Rs. 3 millions fee for each case
and someone advised not to file appeal before Supreme Court but unfortunately
during the search of counsel, Mr. Sohail Hayat Khan Senior counsel met the officer
as he was actually already working as middle man between the Cantonment Board
and the lawyers for engagement but when no room was found to call in question
the orders of the High Court, he assured that orders of the High Court are not
correct and therefore he will challenge the same.

The learned counsel knowingly that there is no demerit in the order of High Court,
he only to have a small slice of meat slaughtered the goat and filed Civil Petition
Nos. 88-K to 92-K in the Supreme Court. The Bench of Supreme Court was
comprising the then Honorable Chief Justice Mr. Justice Anwar Zaheer Jamali the
Honorable Chief Justice of Pakistan and Mr. Justice Musheer Alam, who was
author of the judgment in Sindh High Court in the case of Excide Pakistan versus
Cantonment Board Clifton as he was the then Chief Justice of Sindh High Court.

The Honorable Supreme Court vide its order dated 22-05-2015 dismissed Civil
Petition Nos. 88-K to 92-K of 2015. The adverse effect of this order is that in case,
if there would be order of High Court, submissions could be made that this is order
of the High Court and not binding for the other High Courts but now it is stamped
by Supreme Court so is binding for all over the country.
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[3]

The pray set forth in present petition is not correct that advertisement tax cannot be
imposed. It can be imposed but CBs would have notification for the same. Very
sorry for inconvenience and the purpose is only to update the issue with the request
that immediately, notification for shop board tax be prepared and get it published
accordingly, for which if service for such purpose is required, the same shall be
made available, if there is already a notification, the same is not in my knowledge,
please provide copy of the same, then there is no issue at all in the matter.

The other aspect of the case is that it also has been impugned that the recovery
cannot be effected through contractor. In fact, there are such directions from the
Govt. regarding hoarding charges and others in terms of letter No
40/11/Budget/ML&C/2002 dated 17-08-2002 the same can auctioned but since the
counsels appearing for Cantonment are not aware of so, the submissions were not
made before the court.

Now the courts have held that such recovery cannot be effected through contactor
as held by Lahore High Court in case of M/s. Coca Cola Beverages versus
Cantonment Board Chacklala, reported in 2011 MLD pg 1987, the rel. pg is 1993
“that fee and taxes could not be collected through a contractor”. There is another
judgment, Dubai Islamic Bank Pakistan Limited versus Federation of Pakistan and
others reported, in 2014 MLD 957 and the rel pg is 958. This is case of CB
Rawalpindi, wherein it was held that “Board could in entrust duly of collecting
charges, fee and taxes to a contractor”. There is also another judgment of Sindh
High Court reported in 2017 YLR pg 2155 and the rel. pg is 2162 “Board could
not entrust duty of collecting charges, fee and taxes to a contractor”.
Email: ashraf@aashirlawassociates.com

All this is being informed to resolve the issue in a correct way and to safe side the
interest of Cantonment as short is that in case we have no Notification, we should
immediately prepare a notification including the clause therein such recovery can
be effected but the cantonment directly with the associations of private persons.

ZAMZAMA
KARACHI

KARACHI

15, Mall Square, Zam-1, Ashraf Ali Butt

7 Zamzama Comm Lane,
Ph-V, DHA, Karachi
Advocate
# 0333-2123906
 # 021-35292933
 __________________________________
ADVOCATES & LEGAL CONSULTANTS

Ref. # ALA/85/09/2018
Ashraf Ali Butt Date 05/09/2018
Advocate High Courts
Reg. # 3161/HC/Karachi

Mrs. Rehmatunisa
Advocate High Courts
Reg.# 9852 /HC/Karachi

To,
Cantonment Executive Officer
Malir Cantonment Board
Karachi.

Sub:- Civil Suit No 57/2015.

The subject suit was fixed on 04-09-2018 and adjourned to 28-09-2018 as

vakalatnama was filed. There is already order passed on 03-02-2015 to remove
encroachment. The matter was assigned to me now in Sep-2018 as probably, the
notice was received recently. The court has been pleased to direct the compliance
of earlier order for removal of encroachment, however on my request, it was added
that the encroachment shall be removed subject to availability of police assistance
to control law and order situation. The Honorable Court has been pleased to direct
the SP and DIG to provide police assistance. This is only for information.
Email: ashraf@aashirlawassociates.com

Application for certified copy of order is being filed and action may kindly be
initiated on the receipt of order and after availability of police assistance as per
court order. The attendance of Executive Officer is also directed on the said date
along with Director Land of KMC.

ZAMZAMA
KARACHI

KARACHI

15, Mall Square, Zam-1,

7 Zamzama Comm Lane, Ashraf Ali Butt
Ph-V, DHA, Karachi Advocate
# 0333-2123906
 # 021-35292933