The Supreme Court was urged on Thursday to declare recently imposed tax of federal government on sale and purchase of commercial and private property ultra vires of the Constitution. Filing a petition under Article 184 (3) for the enforcement of ''Fundament Right'' enshrined in Article 23 of the Constitution, Shahid Orakzai made the Federation through Secretary Ministry of Law Islamabad as respondent.
Article 23 of the Constitution stipulates; "Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest". The petitioner requested the apex court to decide a question of law that whether the federal government can impose any tax in violation of Article 23.
He alleged that government has illogically multiplied the tax on the sale and purchase of property, both commercial and private, all across Pakistan by fixing inflated value on the property. He said that under Article 8 of the Constitution, any law that takes away or abridges a fundamental right shall be void and since no tax can be imposed without an Act of Majlis-e-Shoora (Parliament), the tax imposed through the finance bill is void ab initio.
Orakzai submitted that the tax does not have a regular rate but its ratio shall vary from city to city and area to area within the city, adding that the federal government cannot impose any restriction on acquiring any property in any part of Pakistan, nor can it prohibit or obstruct or disposal of the same by a citizen.
He said that the constitution declares the right to acquire, the right to hold, and the right to dispose of a property saying all these three equal rights are interlinked but not interdependent. "No citizen can be compelled to acquire or hold any property to his financial disadvantage. All the three rights are meant to ensure his optimum monetary advantage. The denial of any right would nullify the other two. The tax under challenge is not imposed on any specific trade, business or profession, as defined by Article 18," he argued.
He submitted that there is no single law that regulates commercial and private property all over Pakistan. The tax machinery, on the other hand, is extremely corrupt and the new tax would only grease a few more palms. "This petition does not discuss the financial fallout of the illegal tax or the shifting interest of investors in real estate. The Prime Minister''s family has sizeable property in London and his finance minister prefers the near market in Dubai. The petitioner shall explain the constitutional disadvantage since Pakistan does not give any property right to the foreigners," Orakzai said.