FARAN SUGAR MILLS LTD. Versus UNION COUNCIL, SHAIKH BHIRKIO
ORDER
1. ABDUR RAHIM KAZI, J .--By this petition, the petitioners have challenged the Notification published in the Sind Government Gazette of 14 th July, 1988, whereby, the Octroi chargeable on `sugarcane for crushing' was enhanced. The facts of the petitioners' case are that they are the manufacturers of sugar and allied products, having their Mills in village Tando Ibrahim Bawany within the territorial jurisdiction of the respondent Union Council. It is further contended that in 1983, an Octroi schedule was prepared and ultimately published in the Govt. Gazette for collection of Octroi on various items which was maintained until the year 1988. The petitioners have further contended that from the issue of Daily `Ibrat' of 1-5-1988, they came to learn through the Public Notice published therein that the respondent Union Council was going to revise the octroi schedule and had fixed the programme, whereby, the following dates were given. The said notice is reproduced hereunder:--
2. "Union Council Shaikh Bhirkio, Taluka Tando Muhammad Khan.
PUBLIC NOTICE
3. This is for the information of the General Public and particularly the management of the Faran Sugar Mills Ltd. that in accordance with Resolution No. 8 of 7-4-1988, of the Union Council, the octroi rates for all the items (sugar cane and store items) applicable to Village Tando Muhammad Ibrahim Bawany are to be increased. The new rates will be effective from 1-7-88. The additional income to the council of about Rs. 6 lacs will be used in the jurisdiction of the Council for development purposes. This increase has been proposed for the betterment of the general public and also to give them more facilities. The proposed increase is being made under Section 60 of the Sind Local Government Ordinance of 1979 and Rules 3 and 4 of Imposition of Tax Rules 1979. Objections and proposals are invited as under:
(1) Objections and proposals are to be received by the Finance Committee by .15-5-1988.
(2) Hearing of the objections by the Finance Committee... 21-5-88
(3) Final decision by the Council on report of the Finance Committee.
4. After observing the above facilities the final decision on the schedule of rules will be sent for Notification within 3 days. From 1-7-88 the octroi will be charged on new rates.
5. The proposed rates and other documents can be seen in the office of the undersigned during office hours.
6. Sd/-Chairman
7. Union Council
8. Shaikh Bhirkio."
9. It is the case of the petitioners that they requested to supply them the proposed schedule and having received the same they filed their objections vide their letter dated 12-5-1988, wherein, they also requested for a meeting by the Finance Committee. The respondent by their letter dated 16-5-1988, intimated the petitioners that the meeting of the Finance Committee was fixed on 22-5-1988 at 10-30 A.M., but on the said date the petitioners through their letter requested for postponement of the meeting till 25-5-1988, on the ground that their General Manager was out of Station. According to the petitioners their request was not granted and Finance Committee finalized their report and ultimately the revised schedule was published vide Sind Government Gazette of 14-7-1988. The petitioner, thereafter, had been writing to the Secretary and the Director of the Local Bodies Government of Sind, but nothing was done by them and as such the present petition was filed.
10. Mr. Ahsan Zaheer Rizvi, learned counsel for the petitioners, has urged that the respondents have violated the mandatory provisions, as contained in Rules 3, 4, 5 and 6 of the Sind Council (Imposition of Taxes) Rules, 1979. He has argued that according to the above provisions, it is mandatory for the respondents to first draw a structure to formulate the taxation proposals, which are to be published in daily newspaper for inviting objections and suggestions thereon. He has also argued that the notice has to contain various particulars as provided in Rule 4 (2) of the above said Rules and that a hearing to the objectors has to be given to the persons objecting or making suggestion as required m Rule 5, which are to be examined by the Finance Committee of the Council. It is also his case that the Finance Committee after hearing the said objections and suggestions is required to draw up and furnish detailed report to the Council, which report is to be presented before the Council in its Special meeting and it is only after the Council approves the same that the revised schedule is to be published and put into effect. Mr. Ahsan Zaheer Rizvi, has argued that these formalities have not been complied with in the strict sense of the abovesaid provisions of law and hence the impugned notification is to be set aside being without lawful authority. He has referred to the case of Kotri Association of Trade and Industry v. Government of Sind and another (1982 CLC 1252), in which their Lordships have observed as follows:--
11. "The purpose and object of these rules show that these are mandatory rules and non-compliance of these rules would render the taxation proposal ineffective. 1979 Rules being fiscal and also mandatory in nature, strict compliance is necessary, and where there is non compliance or only substantial compliance, the tax will be struck down Valuable rights have been conferred upon the concerned citizens by the 1979 Rules and if these rules are not complied with these rights are adversely affected."
12. It will be advantageous to reproduce the relevant Rules 3, 4, 5 and 6 of the Sind Councils (Imposition of Taxes) Rules; 1979, which read as under:
13. "3. A council may at any time review its financial position and if in its opinion any change in the tax structure, is called for it shall formulate or cause to be formulated a taxation proposal:
14. Provided that no taxation proposal shall be formulated in respect of a tax before the expiry of sic months since its imposition, reduction, suspension or abolition.
4. (1) Every taxation proposal prepared under rule 3 shall be published alongwith a notice m daily newspapers for inviting objections and suggestions thereon within fifteen days of publication of the taxation proposal.
(2) The notice under sub-rule (1)
(i) may specify--
(a) The main feature of the taxation proposal,
(b) the class of persons or description of property' or both affected thereby,
(c) the amount or rate of tax to be imposed and the previous amount or rate, if any,
(d) additional income likely to be raised by the imposition of the tax or the increase in the tax and the purpose on which this additional income is proposed to be spent,
(e) the loss of income likely to be caused by the abolition or suspension of the tax or reduction in the rate of the tax and the manner in which this short fall is income as proposed to be made up,
(f) justification of the taxation proposal, and
(g) any other particulars considered necessary of the information of the public.
(ii) shall accompany a taxation programme specifying:-
(a) the date which shall not be earlier than fifteen days from the publication of the notice, by which objections' or suggestions may be made by the inhabitants;
(b) the date or dates fixed for the hearing of objections and suggestion received under this rule.
(c) the date by which the final taxation proposal shall be sent to Government for sanction. .
5. (1) All objections and suggestions received under rule 4, shall be entered in a register maintained for the purpose.
(2) The Finance Committee of the council shall hear and examine the objections and suggestions under the chairmanship or Mayor or Chairman, of the Council as the case may be.
(3) On the date or dates fixed for the hearing of objections and suggestions, the committee shall hear the same in public and shall afford all possible facilities to the persons making them to present their case.
(4) The committee shall as early as possible after close of the hearing of objections and suggestions, draw up and furnish detailed report to the Council:
(5) The report to the sub-rule (4) shall specify:-
(a) the salient features of the taxation proposal;
(b) the number and nature of objections and suggestions received within the specified period;
(c) the manner in which the objections and suggestions were heard;
(d) the findings of the committee in respect of each objection and suggestion heard by it;
(e) the recommendation of the sub-committee with regard to the taxation proposal indicating whether the recommendations are, as nearly as possible m accordance with the model tax schedule, if any framed by Government under section 6; and
(f) financial implications involved in such recommendations.
6. (1) The Mayor or Chairman, as the case may be, shall present the report to the special meeting of the council, convened for consideration of the taxation proposal.
(2) The council shall, consider the report and for the reasons incorporated in its resolutions: (a) approve it with or without modifications, or (b) drop the taxation proposal,
(c) if the council approves the taxation proposal, with or without modifications, it shall be submitted to Government alongwith a copy each of the report of the committee and the resolution approving it:'
15. We had called for parawise comments from the respondents in the matter which were filed by them alongwith the following documents.
(i) Minutes of the meeting of 7-4-1988, showing that resolution was passed to revise the Octroi schedule and fixing the programme for inviting objections, their hearing and submission of report by Finance committee.
(ii) Public Notice published in newspaper.
(iii) The Schedule of Octroi.
(iv) Report of the Committee dated 25-5-1988.
(v) Some letters and receipts.
16. Subsequently an affidavit of the Chairman of respondent Union Council was also filed who alongwith his affidavit produced the Minutes of the special meeting of respondent council held on 26-5-1988, "wherein the resolution approving the report of the Finance Committee was passed.
17. From the above documents, Mr. K.B. Bhutto, Advocate appearing for the respondent Union Council has argued that all the mandatory requirements of the rules have been complied with inasmuch as by a resolution in the meeting of 7-4-1988, a proposal was made, objections were invited, the petitioner admittedly has vide their letter dated 12-5-1988 intimated their objections, the Finance Committee considered and finalized the proposal in their meeting held on 22-5-1988 which was placed in the special meeting of respondent Council on 26-5-1988 and having approved the same was published in the Sind Government Gazette. He has further argued that the case of Kotri Association of Trade and Industry v. Government of Sind and another would be applicable only if there was violation of above-said legal provisions as there is no such violation in the present case, the above said Division Bench Judgment of this Hon'ble Court will not be helpful to the petitioner. We are in agreement with the contention of Mr. K.B. Bhutto, learned counsel for the respondent.
18. Mr. Ahsan Zaheer Rizvi, learned counsel for the petitioner, contended that the abovesaid resolution shows that the proposal was only to enhance the octroi on sugar-cane for the realization of an amount of Rs. 6,00,000, whereas, the notification published in the Gazette shows that the octroi on other articles has also been enhanced. We are afraid, we cannot agree with the learned counsel, as the documents placed on record show the other proposal of enhancement also. Mr. Ahsan Zaheer Rizvi, learned counsel for the petitioner, has also relied on the case of Wali Muhammad and another v. Mst. Hamida Bai 1983 SCMR 191. This was a case dealing with the requirements of notice under section 14 (1) of the Sind Rented Premises Ordinance, 1979. We do not find any nexus of said case with the present case. Lastly, Mr. Ahsan Zaheer Rizvi, has argued that he was not given an opportunity of being heard on his objections. He has placed his letter dated 12-5-1988 on the record, which shows that the petitioner had raised objections of general nature only which were duly considered by the Finance Committee of respondent Council in their report of 22-5-1988. Mr. Rizvi also raised the objections that the respondent Council should have allowed the time to the petitioner upto 25-5-1988 to hear his objections. We cannot agree to this contention of the learned counsel. The petitioner had raised only objections of general nature and there is no such law, whereby, the respondent Council could be said to have been bound to grant further time.
19. For the above reason, we do not find any substance in the present petition, which is dismissed in limine.
20. The above are the reasons for the short order passed by us today.
21. H.B.T./F-100/K
22. Petition dismissed.