Munir A. Sheikh, J.--These appeals by leave of the Court are directed against the judgment dated 26th March 1998 of the High Court of Balochistan, Quetta whereby Constitutional Petitions filed by appellants have been dismissed.
2. The facts of the case emerging from the submissions made by the learned counsel from both sides shortly stated are that appellants had established Textile Mills within Hub Industrial Area of Balochistan. For the purpose of spinning of cotton yarns, they had to bring cotton bales from different parts of the country to their respective mills. The Town Committee Hub/Respondent No, 2 was empowered under the Balochistan Local Government Ordinance, 1980 (hereinafter referred to as the "Ordinance") to impose and levy taxes for bringing these cotton bales within the limits where the said mills were situated. According to the procedure laid down in the Ordinance read with Balochistan Local Council (Imposition of Taxes) Rules 1981, before levy of any tax, the Lord Council was required to publish for information of general public the proposed tax and the rate at which the same was proposed to be levied for inviting objections from those persons who were likely to be affected. If any objection was filed, the same was required to be considered by the Committee and thereafter put up before the House of the Local Council concerned for approval or otherwise.
After the approval of the House, the same is forwarded to the Provincial Government for issuance of the notification and then the same would take effect. However, it is provided under Section 68 of the Ordinance that a Local Council may or when directed by the Provincial Government shall levy or impose a particular tax. Under Section 70 of the Ordinance the Provincial Government is empowered to direct the Local Council to impose tax. In case the said direction was not complied with the Provincial Government was empowered to pass consequential order of its compliance.
3. It appears that before 19.4.1995 the Local Council concerned had imposed tax on the import of cotton at the rate of 1% of the value of the goods. On 19th April 1995 the Provincial Government issued a notification to the following effect:- "The rate of octroi charged on cotton may be substituted as Rs, 11/-(Rupees Eleven) per bale instead of 1% of the value of goods'.
Subsequently, however, in supersession of earlier Notification another Notification No, 5-32/74
(BLGB) AO-IV/771-82 dated 2nd August 1995 was issued by the Provincial Government which was made effective from 1.7.1995 to the following effect:- "The rate of octroi charged on cotton may be substituted as Rs, 11/-(Rupees Eleven) per bale instead of 1% of the value of goods and will be applicable for period of five years".
M/S. Bela Builders (Pvt.) Limited, (respondents) were granted contract by Local Council to collect said tax/octroi for a period of one year commencing from 1st July 1997 to 30th June 1998 at the total bid of Rs, Thirteen Crores payable in ten instalments.
4. After the expiry of contract of Respondent No, 3 the contract was awarded to one Rozi Khan, therefore, on his application he was made party in these appeals for judgment ultimately to be passed was likely to adversely affect his rights as according to him he has given bid keeping in view that the tax was recoverable at 1% of the value of the goods and not at Rs, 11/- per bale.
5. Subsequently on the letter written by Administrator of Local Council concerned the Provincial Government on 11th November 1997 issued Notification No, 5-197/82 (BLGB) AO-IV through which it was provided that instead of payment of octroi at the rate of Rs, 11/- per bale the same shall be levied and recovered at the rate of 1.5% of the cost which according to the learned counsel had affected the mill owners as it had the effect of withdrawal of concession under previous notification and raising the octroi/tax by more than 1200 per cent. Feeling aggrieved of which, the owners of mills filed Constitutional Petitions challenging the legality thereof before the Balochistan High Court Quetta which have been dismissed through the impugned judgment dated 26.3.1998 against which these appeals by leave of the Court are directed.
6. The case of the appellants before the High Court was that the Provincial Government if directs a Local Council to levy a tax, the latter was bound to follow the procedure laid down in the rules for levying a tax or making any changes in the rates of tax already levied i,e, publication of proposals and inviting objections and consideration of the same by a Committee as was applicable in the case of imposition/levy of tax of its own and that the former after having granted a concession for a period of five years earlier could not change the same before the expiry of the said period by virtue of force of rule of promissory estoppel laid down by the superior Courts. Both the contentions did not find favour with the learned Judge of the High Court who held that the requirement of following the prescribed procedure of levying a tax was not applicable in this case as the same had been levied by the Provincial Government.
7. By recording this finding, it was impliedly held that the said procedure was required to be followed only in case the Local Council of its own under the law levies a tax or makes alterations in the rates of taxes already made. The other contention was also repelled by holding that there could be no estoppel against Statute.
8. Before this Court, at the petition stage, these contentions were raised. As to the contention of applicability of principle of promissory estoppel, it was observed that there could be no estoppel against the Statute and to consider the other contention noted above, leave was granted.
9. Learned counsel for the appellants submitted that the question as to applicability of principle of promissory estoppel requires reconsideration. Learned counsel addressed lengthy arguments in support of the other contention by making reference to the provisions of Section 70 of the Balochistan Local Government Ordinance, 1980 and Balochistan Local Council (Imposition of Taxes)
Rules, 1981. The question as to applicability of principle of promissory estoppel has engaged our serious consideration. In our view, the said contention requires re-examination, therefore, under Article 187 of the Constitution, we recall the earlier order and would grant leave to appeal on this point also for doing complete justice.
10.We have heard learned counsel for the parties on the question of promissory estoppel, for in our view, if the appellants could succeed on this ground, there is no need to decide the other contentions which may be left for decision in some other case where it would be necessary to decide.
11. The contention raised by the appellants before the High Court as to promissory estoppel was repelled on the assumption that it was a case of estoppel against Statute. It may be mentioned here that generally, the Local Council which was empowered to levy tax on the items mentioned in the Schedule subsequently could also increase or reduce the rate of taxes. The present one is a case where the Provincial Government in exercise of its administrative power conferred under Local Government Ordinance issued Notification No, 5-23/74 (BLGB)AO-IV/771-82 dated 2.8.1995 to grant concession to the Mill owners for charging rate of octroi on cotton at the rate of Rs, 11/- per bale for a period of five years which had taken effect. The question arises whether in such a situation, the principle of promissory estoppel as laid down in the cases of Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industrial Ltd., Chittagong (PLD 1970 S.C. 439) and Al-Samrez Enterprise v. The Federation of Pakistan (1986 SCM R 1917) was applicable. The answer is in the affirmative. In Al-Samrez case (supra), a similar notification was issued in exercise of administrative power conferred under the Customs Act through which a concession was granted as regards custom and other Government dues for a fixed period. It was sought to be withdrawn in exercise of similar power but this 'Court ruled that once a concession or benefit had been granted for a fixed period which had taken effect, it could not be withdrawn by virtue of Section 21 of the General Clauses Act unless the Statute itself had conferred such a power on the Executive Authority. The Federal Government subsequently amended the Customs Act and added Section 31-A empowering the Federal Government to withdraw such a concession at any time even during the currency of the period for which the same was earlier granted. In the present case, there is nothing in the Balochistan Local Government Ordinance or the Balochistan Local Council (Imposition of Taxes) Rules empowering the Provincial Government to withdraw the concession already made through notification dated 2.8.1995 for a fixed period of five years for charging of octroi at the rate of Rs, 11/- per bale, therefore, the principle of promissory estoppel laid down in the reported judgments referred above was applicable with full force to the present cases.
12. For the foregoing reasons, these appeals are accepted, judgment dated 26.3.1998 of the High Court is set aside and notification dated 11.11.1997 is hereby declared to be without lawful authority as a consequence of which octroi tax shall be charged at the rate of Rs, 11/- per bale under notification dated 2.8.1995.
13. No order as to costs.