MUHAMMAD IDREES Versus MUNICIPAL COMMITTEE, QILA DEDAR SINGH

In W. P. No. 2207 of 1976, W. P. No. 4947 of 1978 and W. P. No. 5045 of 1978, the petitioners have challenged Notification dated 23‑7‑1976, issued by the Administrator, Municipal Committee, Qila Didar Singh, revising rates of octroi tax etc. on various items. In W. P. No. 6004 of 1978, Notifica tion No. 1079 dated 2;‑10‑1978, issued by the Administrator, Municipal Com mittee, Nankana Sahib, has been challenged, and in W. P. No. 301 of 1979, Notification No 1080, dated 29‑10‑1979, issued by the Administrator, Muncipal Committee, Nankana Sahib, to the same effect, has been impugned. Similarly, in W. P. No. 3882 of 1978, the Notification published in the Punjab Gazette (Extraordinary) dated July 30, 1975, has been challenged and in W. P. No. 1954 of 1976, Notification dated 4‑6‑1976, issued by the Administrator, Municipal Committee, Hafizabad, has been impugned.

Since the points essentially involved are common in all these seven writ petitions, they are being disposed of together by, this judgment.

2. Municipal Committees, Zilla Councils etc. were constituted under the Municipal Administration Ordinance, 1960, and under the aforesaid Ordinance section 33 empowered the levy of taxes, rates, tolls and fees mentioned in the Third Schedule. This would be done with the previous sanction of the Government or under a direction given by the Government under section 36 of the aforesaid Ordinance. Under M. L. O. 21 dated 23‑6‑1971, Administrators were appointed and they continued to function till the dissolution of Municipal Bodies. On 24‑11‑1972, Commis sioners were notified to be the Controlling authorities of all the Municipal Committees within their respective Divisions. Municipal Administration Ordinance was repealed on 3‑4‑1975, in terms of section 233 of the Punjab Local Government Act, 1.975, which was enforced on 3‑4‑1975. Municipal Committees have not been constituted so far and the Administrators and Controlling authorities are functioning in terms of subsection (2) of sec tion 235, which reads as under :‑

Notwithstanding anything contained in this Act, all authorities and all officers who immediately before the enforcement of this Act were exercising functions of Local Councils under the repealed enactments or any other law shall continue to exercise their respective functions till the Local Councils are constituted under this Act, provided Government may withdraw all or any of the functions from such authorities or officers as it may deem necessary."

Section 4 of the ‑‑ Local Government Act, 1975, reads as follows:‑

"Where an enactment stands repealed under section 233, any appoint ment, rules, regulations or bye‑laws made or saved, notification, order or notice issued, tax imposed or assessed, scheme prepared ‑or executed, contract entered into, suit instituted, rights acquired, claims made, legal or administrative proceedings or action taken under such enactment, shall so far as it is not inconsistent with the provisions of this Act, be deemed to have been respectively made, saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired, made or taken under this Act."

Therefore, the Municipal Committees Imposition of Tax Rules, 1960, so far as they are not inconsistent with the Punjab Local Government Act, 1975, saved.

3. The learned counsel for the respondents in W. P. Nos. 2207 of 1976, W. P. No. 4947 of 1978 and W. P. No. 5045 of 1978, have pointed out from the record that public notice was issued on 27‑:‑1975 for inviting objections/suggestions within one month and the rate of Schedule was exhibited along with that. Objections were received and disposed of on 4‑7‑1975 by the Sub‑Committee which was constituted under the rules for consideration of these objections. In accordance with the Municipal Committees Imposition of Tax Rules, 1960, the recommendation of the Sub‑Committee was forwarded to the Commissioner (the Controlling Authority) for further action, but he returned the same to the respondents for action under section 138 of the Punjab Local Government Act, 1975. Thereafter, the respondent considered the matter and the impugned notifica tion was published.

In W. P. No. 6004 of 1978 and W. P. No. 301 of 1979 public notice of the proposals was issued on 12‑9‑1978 which was also published in the daily Nawa i‑Waqt in its issue dated 15‑9‑1978. Objections were invited by 12‑10‑1978 for disposal on 15‑10‑1978. Neither of the petitioners in these two with petitions raised any objection to the proposals. There is no evidence on record to substantiate the assertion that the petitioners in W. P. No. 301 of 1979, namely, Sh. Rashid Ahmed, Sh. Muhammad Afzal, Muhammad Zulfiqar etc. raised any objection. In any case, it is denied by the respondent Municipal Committee that the petitioners named above filed any objections and in the exercise of its writ jurisdiction this Court normally does not enter upon the disputed questions of fact.

Therefore, there was no need of getting approval of the Government, because sections 138 and 139 of the Punjab Local Government Act, 1975, empowered the respondents to increase, enhance, levy or modify taxes.

4. The learned counsel for the petitioners has contended that in con formity with rule 4(c) and (d) of the Municipal Committees Imposition of Tax Rules, 1960, a public notice along with the change of rate schedule proposed, was not published in any newspaper. The alleged public notice, therefore, was defective and for this reason the petitioners bad no opportunity to present the objections. There is a half‑hearted argument that some of the petitioners raised objections which were not considered at all. There is no proof of he fact that any of the petitioners raised objections which were not considered. The case of the answering respondent is that all objections received mere duly considered, taken into consideration and decided on merits. In any case, this Court is reluctant to enter upon the disputed questions of fact. There is no requirement of law that a public notice must necessarily be published in a newspaper. . The manner of the issuance of public notice will depend upon the status and financial condition of the local body. It could be by affixing it." on a notice board of the Municipal Committee or by making it known to the public by an advertisement or Press note in a newspaper, or poster or hand bills, or radio announcement or beat of drum, or such other manner as may be considered suitable by the Municipal Committee. In the case reported as Malik Noor Muhammad etc. v District Council, Jhang,( P‑ L D 1976 Lah. 916) referred to by the learned counsel for the petitioners, there was no publication of notice at all.

5. The argument of the learned counsel based on rule 6(vi) of the Imposition of Tax Rules has no force whatsoever. It is apparent from the record that the rule has been complied with, one month's time for the filing of objections before the Controlling authority at the time of forwarding the same was given, but on being pointed out of the change in the law empowering the Local Council itself to increase/revise the taxes, rule 6(vi) was rendered redundant. The Administrator appointed under the relevant law at the time of the promulgation of the Punjab Local Government Act, 1975, continued to exercise the same powers under section 235 of the Punjab Local Government Act, 1975, reproduced above.

6. The learned counsel has referred to letter No. S O VI(LG) 1(26)/78, dated 21‑6‑1978, to argue that the Government itself has authorised the respon dent Municipal Committee to raise the rate to the extent of 25 %, whereas according to the learned counsel in regard to certain items the increase had been even more than 100

The relevant portion of the above‑mentioned letter dated 21‑6‑1978, is reproduced below:‑

"I am directed to address you on the above subject and to say that Special Committee was recently constituted by the Government under the Chairmanship of A. C. S. (S. G. A. & I. D.) to explore means to improve the financial position of the Local Councils. The said Committee inter alia recommended that the Local Councils be allowed to increase the rates of existing taxes/fees. It recommended that such taxes which bad not been revised over the last three years may be enhanced by 25 % and those which had been revised within the last three years by 10 %."

On the other hand, it is contended by the respondents that the above referred letter enables the respondents to raise its total income to the extent of 25 % and the stipulated increase of 25 % is not correlated to the increase in the rate per item. If the petitioners had chosen to invoke the jurisdic tion under section 206 or 219 of the Punjab Local Government Act, 1975, the grievance would have been redressed as the Government itself would have been the better Judge to say what was intended by its above‑referred a letter dated 21‑6‑1978.

In any case, if the petitioners felt aggrieved, they had adequate remedy by way of appeal or revision provided under section 206 or 219 of the Punjab Local Government Act, 1975, which they should have availed or they can avail and urge all the objections there.

7. In the case reported as Abdul Waheed etc. v. Government of the Punjab and another (P L D 1978.Lah. 811) my brother Zakiuddin Pal, J. has summed up the legal position as follows :‑

"According to section 138 of Punjab Local Government Act, 1975, a Local Council subject to the provisions of any law may and if directed by the Government shall levy all or any of the taxes enumerat ed in the Second Schedule. Section 145 of the Act provides that all taxes levied by a Local Council shall be imposed, assessed, etc. in such manner as may be provided by rules. Section 1:40 of the Act provides that the Government can direct a Local Council to levy any tax, to increase or reduce any such tax or the assessment thereof to such an extent as may be specified or to suspend or abolish the levy of any tax. The language used in section 138 shows that taxes can be levied by a Local Council of its own or otherwise at the direction of the Government which according to section 140 can even direct a Local Council to increase or reduce any such taxes or to suspend or abolish the same. The learned counsel bas relied upon section 145 of the Act in order to show that rule 7 of 1960 Rules, being a mandatory provision, has not been followed and as such the taxes imposed cannot be realised. The aforesaid section provides that all taxes levied by a Local Council shall be imposed, assessed, abolished and regulated in such manner as may be provided by the Rules. It means that so far as rules 3 to 6 are concerned, for procedure laid down therein has to b‑. followed. Preliminary taxation proposals have to be made, they have to be published inviting objections from the public, such objections have to be disposed of under rule 5 and taxation proposals have to be finalised under rule 6. The provisions as contained in sections 138, 140 and 145 have to be read together. Their bare reading would show that the provisions as contained in section 7 of 1960 Rules has become redundant in view of section 138 of the Punjab Local Government Act, 1975, as the Local Councils have been empowered to sanction the taxation proposals themselves."

My brother Gul Muhammad Khan, J. in the case reported as Muhammad Amin and others v. Commissioner, Lahore Division, Lahore etc. (1) has summed up the legal position reiterating the view taken earlier by my brother Zakiuddin Pal, J.

8. The learned counsel for the petitioners also contended firstly that the Administrator had no lawful authority under section 138 of the Punjab Local Government Act, 1975, to amend the already existing rules of taxes, and secondly that the Administrator could increase the existing rates of taxes only after the direction of the Government as provided in section 140 of the Act.

Relevant statutory provisions for facility of reference may be quoted below :‑

"Section 138. Taxes to be levied.‑A Local Council subject to the provision of any other law may, and if directed by the Government, shall levy all or any of the taxes enumerated in the Second Schedule.

Section 139. Notification and enforcement of taxes.‑( P L D 1978 Lah. 1020) All taxes levied by a Local Council shall be notified and shall, unless otherwise directed by the Government, be subject to previous publication.

(2) Where a tax is levied or modified the Local Council shall specify the date for the enforcement thereof, and such tax or the modification shall come into force on such date."

(Section 235(2) which is also relevant, has already been reproduced on pages 2 and 3 of this judgment.)

9. Now taking the first contention of the learned counsel for the petitioners that the Administrator had no lawful authority to amend the already existing rate of taxes, it is to been that a Local Council in its absence, the Administrator under sections 235(2) and 138 is empowered to levy all or any of the taxes enumerated in the Second Schedule. There is no dispute about the fact that the taxes fall under the Second Schedule and' that the Administrator exercises the powers of the Local Council. Coming to the crux of this controversy as to whether the Administrator can levy taxes or amend the already existing taxes as the learned counsel for the petitioners contended, it is well‑known principle of law that an authority having the power to issue a notification order, rules, etc. has the power to [F add to, amend, vary etc. such notifications, orders, rules 2 etc.

When the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. (quando lex aliquid alfcui concedit, concedere videtur and sine quo res ipso esse non potest (5 Rep. 47) Ale in Wheeldon v. Burroughs ((1879) 12 Ch. D 31).

The principle has been given statutory recognition in our country in section 20 of the West Pakistan General Clauses Act, 1956, which is to the following effect

"20. Power to make to include power to add to, amend, vary or rescind orders, rules or bye‑laws.‑Where, by any West Pakistan Act, a power to issue notification, orders, rules, scheme, form, or bye‑laws is conferred then that power includes a power, exerciseable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind, any notifications, orders, rules, scheme, form, bye‑laws so issued."

As regards the second contention that the Administrator could increase' the existing rates only after the direction of the Government, is misconceived because the Administrator had independent power under section 138 of the Punjab Local Government Act, 1975.

10. In W. P. No. 3882 of 1978, the impugned Notification is by the Controlling Authority, i.e. the Commissioner, Lahore Division, Lahore. This Notification was published in the Punjab Gazette (Extraordinary) dated July 30, 1975. This distinctive point urged by the learned counsel for the petitioners in this particular writ petition is that in the context of the promulgation of the Punjab Local Government Act, 1975, the Controlling Authority became functus officio and there was no jurisdiction left with H him to make the impugned alterations in the rate of Schedule. Access on all fours against the same respondent deciding the precise point of law is reported as Messrs Ravi Rayon Ltd. v. Commissioner, Lahore Division, Lahore (P L D 1978 Lath. 387). In the cited case the Notification is dated 18‑8‑1975, i.e. later than the Notification impugned in the writ petition in hand. My brother Samadani, J. was pleased to hold as follows:‑

"It is, therefore, clear from the sanction accorded in the case by the Commissioner on the 18th of August, 1975, that a decision to levy the tax had already been taken by the Administrator before he submitted the proposal to the Commissioner. The subsequent act of submitting the proposal to the Commissioner was no doubt unnecessary, but this does not mean that the decision arrived at by the Administrator in respect of the imposition of the export tax stood vitiated by the subsequent recourse to a procedure which has been dispensed with by the new law.

In my opinion, therefore, the export tax in question was duly levied by the Zila Council within the meaning of section 138 of the Punjab Local Government Act and the levy became effective from the‑ date it was notified in the official Gazette under subrule (2) of rule 7 of the Imposition of Tax Rules, 1961. This is the only way rule 7 can be reconciled with section 138 of the Act."

W. P. No. 3882 of 1978, is therefore, fully covered by the principle enunciated in the cited judgment and thus has no merit whatsoever.

11. For the reasons stated above, these writ petitions having no merit, are hereby dismissed with costs.

12. The common points urged in W. P. No. 1954 of 1976, have all been dealt with earlier in this judgment, but it merits to succeed on a distinctive point. It has been urged that the petitioners tried to obtain copies of the relevant documents and made an application to the Municipal Committee, but this was not beeded to. Bashir Ahmad, petitioner No. 2, also gave an application to the Deputy Commissioner, Gujranwala, for the supply of certain copies of the documents. Another application was given by Noor Ahmad, petitioner No. 1, on 5‑7‑1976, informing respondent No. 1 that the petitioner wanted to file a writ petition in this Court. All these efforts failed and the petitioner received some days ago a reply from the Chief Officer, Municipal Committee, Hafizabad, that no copies of the documents applied for could be supplied to him. Letter No. 577/M, dated 15‑7‑1976, in original, has been appended as Annexure 'C' to the writ petition. The respondent has. not admitted these facts and has maintained that under the Copy Rules copies have to be issued 'under certain prescribed conditions. Annexure `C' is a document signed by the Chief Officer, Municipal Committee, Hafizabad, dated 15‑7‑1976, wherein neither the Copy Rules, nor the entitlement of the petitioners to obtain copy has been made a ground for refusing the copy, but instead it is stated :

The relevant documents are in the sole custody of the respondent and he had declined to furnish the copies. In the absence of these documents' it was for the respondent to explain the various steps that he had taken with supporting documents to justify that the levy was in accordance with law and that the Municipal Committees (Imposition of Taxes) Rules, 1960, had been complied, with i.e. previous publication of the proposal to enhance the taxes was made that objections for a particular date were invited, that objections were heard by the Committee constituted for the purpose, that a recommendation was made by the Committee and that it was considered by the Sanctioning Authority again after inviting the public likely to be affected. .

The petitioners could not have properly pursued their right of appeal/ revision without the relevant supporting documents.

In this view of the matter, the Notification dated 4‑6‑1976, impugned 1 in W. P. No. 1954 of 1976, cannot be maintained and is held to be without lawful authority and of no legal effect. This writ petition is, therefore, allowed with costs. ,

13. The result is that W. P. No. 2207 of 1976, W. P. No. 4947 of 1978, W. P. No. 5045 of 1978, W. P. No. 6004 of 1978, W. P. No. 301 of 1979 and W. P. No. 3882 of 1978 are dismissed with costs, while W. P. No. 1954 of 1976 is allowed with costs.

S. G. D. Order accordingly