HABIB SUGAR MILLS LTD. Versus DISTRICT COUNCIL, NAWABSHAH
1. SAEEDUZZAMAN SIDDIQUI, J.‑‑We propose to dispose of the above noted two Constitutional Petitions by a common order as petitioner in both the cases is same and the points of law and facts arising therein are also common. The petitioner has challenged the levy and collection of "Rawangi Mahsool", on rectified spirit in Petition No.268 of 1985 and Sugar, Molasses and Bagasse in Petition No.269 of 1985, by the District Council, Nawabshah (respondent No.l). The contention of the petitioner is that their Mill where rectified spirit, Sugar, Molasses and Bagasse is produced, is situated within the local limits of Nawabshah Municipal Committee, which is outside . the local limit of District Council Nawabshah and, as such, respondent No.l was not competent to demand and recover "Rawangi Mahsool" on the export of these items which passed through the limit of District Council, Nawabshah, during transit. It is also contended by the petitioner that the aforesaid items are meant for ultimate export outside the country and as such for this reason as well no "Rawangi Mahsool" could be charged on them by respondent No.l. Learned counsel for District Council, Nawabshah, and the Octroi contractor on the other hand jointly contended that though the Mill of petitioner is located in the limits of Nawabshah Town but it is also within the revenue limits of Nawabshah District as defined in clause (19) of section 3 of Sind Local Government Ordinance, 1979, and as such, District Council Nawabshah was competent to recover "Rawangi Mahsool" on the above mentioned items. Additionally, it is contended by the learned counsel for the respondents jointly that by Sind Ordinance No.I of 1988 which was promulgated on 30‑5‑1988 a proviso was added in Entry No.6 of the Schedule V in Part I11 of the Ordinance which authorised levy of "Rawangi Mahsool" by District Council in respect of items mentioned therein if they are exported from the Urban as well as rural limits of the Revenue District and as section 3 of the said THE SIND LOCAL GOVERNMENT (AMENDMENT) ORDINANCE 1988 Sind Ordinance 1 of 1988 An Ordinance to amend the Sind Local Government Ordinance, 1979, and to validate the levy of Rawangi Mahsool on certain commodities by the District Councils in the Province. WHEREAS it is expedient to amend the Sind Local Government Ordinance, 1979, and to validate the levy of Rawangi Mahsool on certain commodities by the District Council in the manner hereinafter appearing.
2. And whereas the Provincial Assembly is not in session and the Governor of Sind is satisfied that circumstances exist which render it necessary to take immediate action.
3. Now, therefore, in exercise of the powers conferred by clause (1) of Article 128 of the Constitution of the Islamic Republic of Pakistan, the Governor of Sind is pleased to make and promulgate the following Ordinance:‑
4. (1 This Ordinance may be called the Sind Local Government (Amendment) Ordinance, 1988.
(2) It shall come into force at once.
5. 2‑ In the Sind Local Government Ordinance, 1979, hereinafter referred to as the said Ordinance, in Schedule V, in Part III, in Entry 6, the full‑stop at the end shall be replaced by semi‑colon and thereafter the following proviso shall be added:‑
6. 'Provided that Rawangi Mahsool shall be livable on fire wood, timber for use in construction of buildings wheat, jav (barley), rice, cotton (ginned, unginned or waste), sugar products such as missri, rewri and sweetmeats, whether such thing or substance is exported from the urban limits or rural limits of the revenue District.'
(3) Notwithstanding anything contained in the said Ordinance or rules thereunder or any judgment, order or decree of any Court:‑
(a) The Government of Sind, Housing Town Planning, Local Government and Rural Development Department Notification No.SOV/DC‑V(7)/85. pt. I, dated the 12th June, 1986, authorising the levy of Rawangi Mahsool on certain commodities, shall always be deemed to have been validly issued and enforced and taken effect accordingly but in the case of District Council Hyderabad and the District Council Nawabshah it shall be deemed to have taken effect on and from the 1st day of September, 1983, and the 19th day of May, 1984, respectively.
7. (b The Rawangi Mahsool levied, assessed, charged, collected or realized by a District Council in pursuance of the said notifi cation shall always be deemed to have been validly levied, assessed, charged, collected or realized.
8. Karachi, the 21, May, 1988. ASHRAF W. TABANI
9. Governor of Sind"
10. A careful reading of short title and commencement given in section 1 of Ordinance I of 1988, will show that it came into effect on the date of its promulgation. By section 2 of the Ordinance a proviso has been added at the end of Entry No.6 in part III of Schedule V to the Ordinance of 1979. This newly added proviso made it permissible for the Council to levy 'Rawangi Mahsool' in respect of items which are mentioned therein, if they are exported from Urban as well as Rural limits of the Revenue District. There is no indication in the language of section 2 that this newly added proviso at the end of Entry No.6 in Part III of Schedule V of the Ordinance, 1979 came into effect from a date prior to the date of enforcement of Ordinance I of 1988. We are, therefore, of the view that this amendment did not affect the cases before us which relate to recovery and levy of "Rawsngi Mahsool" by respondent No.l for the period which is much prior to the date of promulgation of Ordinance I of 1988. The learned counsel for the respondents, also relied on section 3 of Ordinance I of 1988 in support of their contentions that imposition of "Rawangi Mahsool" by respondent No.l on export of sugar, rectified spirit, Molasses and Bagasse stood validated even if their initial levy was not valid under the Ordinance. Section 3 of Ordinance No.l of 1988, purports to give effect to Notification No.SOV/DC‑V(7)/85, Pt. I,. dated 12‑6‑1986, issued by Government of Sind under subsection (1) of section 62 of the Ordinance in the case of District Council Nawabshah from 19‑5‑1984. (Note: In the notification which is printed in the Sind Government Gazette, Extraordinary dated 28‑6‑1986 only subsection (1) of Sind Local Government Ordinance 1979 is mentioned which appears to be a mistake and should be read as subsection (1) of section 62. It is as follows:‑
11. "
12. No.SOV/DC‑V(7)85 Pt.I‑In pursuance of the provisions of subsection (1) of the Sind Local Government Ordinance, 1979, the Government of Sind are pleased to direct that a District Council shall levy 'Rawangi Mahsool' on fire wood, timber, for C use in construction of buildings, wheat, Jav (barely) rice, cotton (ginned, unginned or waste) and sugar and sugar products such as Miseri, Rewri and sweetmeats products within the limits of the District Council, whether such thing or substance is exported from the Urban limits or rural limits of the District."
13. It is well‑settled law that subordinate legislation in the nature of notification, rules etc. issued in exercise of delegate authority under an Act are always prospective in their operation and, such, it D is open to serious doubts if the above notification could be made operative retrospectively by Ordinance No.l of 1988. Apart from under section 62(1) of the Ordinance of 1979 the Government could direct levy of such tax, rate, toll or fee by the council which the Council is competent to levy under the Ordinance. In those circumstances, even if we presume that the above notification became operative from 19‑5‑1984, it could not validate the levy of 'Rawangi Mahsool' by respondent No.l from that date as the proviso at the end of Entry No.6 of Part III in Schedule of the Ordinance was added on 30‑5‑1988 by Ordinance I of 1988, which authorised the council to Levy "Rawangi Mahsool" on export of items mentioned therein, if they are exported from Urban as well as rural limits of the revenue district. In addition to it neither in the newly added proviso to Entry No.6 of the Schedule V in Part III of the Ordinance, nor in the notification of the Government of Sind dated 12‑6‑1986, except Sugar, the other item on which "Rawangi Mahsool" is demanded by respondent No.l are mentioned. We accordingly overrule the contention of respondent There will no order as to costs.
14. A.A./H‑118/K Petition accepted,