1. Through this application the plaintiff is seeking order restraining the defendant No.2 from demanding any "Tax" or "Fee" on the milching animals and/or from initiating any coercive steps for the recovery of the said 'tax' or 'fee'.
2. ' The plaintiff's case as set out in the plaint is, that prior to the promulgation of Sindh Local Government Ordinance 2001 (SLGO, 2001) the defunct K.M.C. Was recovering fee for milching animals at the rate of Rs.5 per animal per month i.e. Rs.60 per animal, per year, however, defendant No.1,without complying with the provisions ot imposition of Taxes Rules, 2001 has enhanced the said fee from Rs.60 per animal, per year to Rs.150 per animal, per year. It is contended that such an enhancement is contrary to the provisions of law and is thus illegal and unenforceable. It is stated that before enhancing the rate of fee of milching animals, the defendant did not comply with the provisions of imposition of Taxes Rules, 2001, as neither a tax proposal was prepared as required by rule 3 nor the same was published under rule 4 and no objections were invited as required under rule 5 of the Taxes Rules, 2001. It is further contended that the defendant No.1 can impose only suFh taxes, fee and levies which have been specified in Part II of the Second Schedule SLGO,' 2001, however, the tax in question has not been so specified and as such the same has been levied without jurisdiction.
3. ' The learned counsel for the plaintiff has submitted that firstly SLGO, 2001 does not provide for levying any tax/fee for keeping milching animals within the jurisdiction of a City District Government and as such the defendant No.1 had no power and/or authority to impose the same and even otherwise the levy/enhancement is illegal for the reason that the procedure as prescribed under section 116 of SLGO, 2001 and as provided for under the Sindh Local Government (Local Fund Imposition of Taxes Rules, 2001 (the Rules) has not been complied with. The learned counsel submitted that under subsection (2) of the section 116, SLGO, 2001, no tax can be levied without previous publication of the tax proposal and without inviting the hearing public objections and such is also a prerequisite in terms of rules 4 and 5 of "the Rules", in addition rule 5 requires the proposal to be approved by the Council. The learned counsel submits that neither the requirement of section 116 of SLGO, 2001 nor these under the rules 3, 4 and 5 of the Sindh Local Government (Local Fund Imposition of Taxes) Rules, 2001 have been complied with.
4. I have perused the relevant record and heard the arguments of the learned counsel. The contention of the learned counsel for the plaintiff is not only untenable in law but the same is factually incorrect. The impugned enhancement of the fee in respect of milching animal from Rs.60 to Rs.150 per animal per year has not been made/affected under the present Ordinance but the same was so done, vide Notification dated 2nd June, 2000, under the Sindh Local Government Ordinance, 1979 (SLG0,1979). Such enhancement was challenged before this Courtthrough a petition bearing Constitution Petition No.1006 of 2000, on the grounds inter alia that the proposed levy/enhancement was without legal authority and that no preliminary proposal as contemplated by rule 4 of Sindh Local Councils (Imposition of Taxes) Rules, 1979 was published in the newspapers.
5. It was contended that SLGO,1979 did not permit imposition of such fee/tax as the same is not mentioned in Schedule V of the Ordinance, wherein only five such items are listed in respect whereof taxes, fees and/or a levy can be imposed, which does not include any fee/tax in respect of ranching animals. The petition was dismissed by a Division Bench of this Court by order dated 21- 8-2002, on the ground that the levy was imposed after approval by the Provincial Government vide letter No.SO-6-98/99, dated 23-10-1999 and that the levy was permissible under the law. Since the enhancement was made under 1979 Ordinance and has been held to be lawful by a Division Bench of this Court as stated above the plaintiff's contention that the same has been enhanced under the present Ordinance is factually incorrect and also the objection that the same has been imposed/enhanced in violation of law and/or without following the prerequisites as laid down in the Sindh Local Government Ordinance, 2001 and/or the rules thereunder is also not correct. So far as the plaintiff's contention that since the present Ordinance does not provide for levy of fee/tax in respect of milching animals, imposition and recovery thereof is illegal, is also misconceived, as Part II of the Second Schedule to SLGO, 2001, which enlist the permissible tax, fee, charge etc., also contains tax authorised by the Government and as observed above the impugned tax has been enhanced/imposed with the approval of the Government of Sindh, conveyed vide letter dated 23- 10-1999 whereas subsection (2) of section 196 of SLGO, provides that, unless specifically provided, nothing in that Ordinance, or any repeal effected thereby, shall affect or be deemed to affect inter alia anything done, action taken, fee levied, resolution passed, under or in pursuance of any law, repealed or amended by that Ordinance and any such thing, action, if in force at the commencement of the said Ordinance (SLGO, 2001) and not inconsistent with any of its provisions of this Ordinance shall continue to be in force and have effect as if it were respectively done, taken, commenced, made directed, passed given, executed or issued under 2001 Ordinance or the law, as amended by this Ordinance. The learned counsel for the plaintiff has failed to show that the levy/charging of the fee in question is inconsistent with any of the provisions of 2001 Ordinance as such his contention that the defendant No.1 is not empowered/entitled to levy and/or recover such fee or that the same is without jurisdiction is wholly misconceived and untenable.
6. ' In view of the foregoing, I find that the levy and recovery of fee in respect of milching animals is lawful and within the competence of defendant No.1 . In the circumstances the application is dismissed as IB being wholly frivolous and totally untenable.