1. ' GULZAR AHMED, J.---The petitioners are doing business of purchasing and selling agricultural produce i,e, vegetables and fruits in the market at Mehar, District Dadu and allege that they are paying market fee to the Market Committee Mehar under the Agricultural Produce Market Act, 1939.
2. It is alleged that respondents 4(a) to (c), claiming themselves to be the contractors of Taluka Council, Mehar, started collecting fee/ octroi to which the petitioners objected and ultimately filed this petition claiming imposition of fee/octroi by the respondents to be ultra vires and repugnant to Sindh Local Government Ordinance, 2001 (SLGO 2001). Respondents Nos.1 to 2 have filed counter affidavits, while respondent No,6 has filed comments.
3. ' Mr. Bilal Khilji, learned counsel for the petitioners contended that petitioners cannot be saddled with the liability of making double payment of market fee; one under the Agricultural Produce Market Act, 1939, and other under SLGO 2001. He has contended that respondents Nos.1 and 2, who are demanding market fee, are providing no service and there is also no notification under the SLGO 2001 authorizing the respondents Nos.1 and 2 to levy and collect market fee and that no fee can be collected by respondents Nos.1 and 2 under the SLGO 2001. He has further contended that the Agricultural Produce Market Act, 1939 being special statute will override the provisions of SLGO 2001 which is a general law. Lastly, he has contended that similar question has already been decided by a Division Bench of this Court vide order dated 25-9-2007 in Constitutional Petitions Nos.D-411 and 966 of 2006.
4. ' Mr.Haider Waheed, learned counsel for respondents Nos.1 and 2 has contended that devolution under the SLGO 2001 has taken place pursuant to which respondents Nos.1 and 2 are entitled to recover market fee and that such fee was being recovered by the Local Government previously and in terms of section 185 SLGO 2001 it will continue to be collected by respondents Nos.1 and 2 and that to the extent of levy and collection of market fee, the provisions of SLGO 2001 will apply and provisions of Agricultural Produce Market Act, 1939 will stand impliedly repealed. He has further contended that the provision of section 116 of SGLO 2001 has no application rather section 195 and Schedule VI, Items 51 and 53 of SLGO 2001 has application. He has further contended that service and license is provided by respondents Nos.1 and 2. He has also relied upon the receipts filed by petitioners to show that respondents Nos.1 and 2 are already collecting the market fee and there is no need for issuance of notification under SLGO 2001 for levy and collection of market fee. Learned counsel has also filed written note along with the following case-laws:---
(1) Ramji Dass Rikhi Ram v. Commissioner of Income-tax, Punjab Pepsu H.P. And Bilaspur, Simla (1959 PTD 184).
(2) All Pakistan Textile Mills Association and other v. Province of Sindh through Secretary and others (2004 YLR 192).
(3) (2009 PTD (Trib.) 1313)
(4) Commissioner of Income-tax, Companies-II, Karachi v. M/s Allwin Engineering Industries Ltd., Karachi (2009 PTD 1314).
(5) Rooh-ul-Amin v. University of Peshawar and 3 others (2006 PLC (CS) 813).
(6) Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co.
5. Ltd. And another (PLD 1979 Lahore 603).
(7) The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan and others (PLD 1974 Supreme Court 151).
(8) Secretary Market Committee, Setharaja at Thari Mirwa, District Khairpur v. Government of Sindh and others (2006 SCMR 385).
(9) Muhammad Zaman v. Collector of Hazara District and others (PLD 1964 (W.P.) Peshawar 47).
(10) Commissioner. Of Sales-tax v. Messrs Zelin Ltd., Karachi (PLD 1967 Karachi 341).
(11) Pir Illahi Bux Co-operative Housing Society Ltd. v. K.B. Sanaullah and others (PLD 1968 Karachi 680).
(12) Sheikh Abdul Majid and others v. Bhudar Chandra Ghosh and others (PLD 1964) Dacca 756).
(13) Abdus Sattar v. Arag Ltd. And others (PLD 1964 Dacca 773).
(14) (1) The Province of East Pakistan, (2) The Sub-Divisional Officer, Chandpur, District Comilla, (3)
6. The Deputy Commissioner, Comila and (4) and The Commissioner, Chittagong v. (1) Sirajul Haq Patwari and (2) Delwar Hussain Talukdar (PLD 1966 Supreme Court 854).
(15) Imdad Ali Malik v. The Settlement Commissioner (Policy), Lahore and another (1962 (W.P.)
7. Lahore 502).
(16) Badarul Haque Khan v. (1) The Election Tribunal, Dacca (2) The Chief Election Commissioner and
(3) Jamalus Sattar (PLD 1963 Supreme Court 704).
(17) The Commissioner of Income-tax, East Pakistan v. M/s. Hossen Kasam Dada, Karachi (PLD 1961 Supreme Court 375).
(18) Government of Pakistan v. (1) Syed Akhlaque Hussain and (2). West Pakistan Province (PLD 1965 Supreme Court 527).
(19) Muhammad Hussain and 5 others v. Mst. Munni and another (1990 MLD 1250).
(20) Ahmad Hussain Khan v. Government of Sindh through Chief Secretary, Karachi and 4 others (PLD 2006 Karachi 5).
(21) Tanveer Hussain v. Divisional Superintendnet, Pakistan Railways and 2 others (PLD 2006 Supreme Court 249).
(22) Murid Hussain Shah v. Tufail Hussain Shah (PLD 1986 Lah. 70).
(23) Sheikh Muhammad Ismail & Co. Ltd., Lahore v. The Chief Cotton inspector, Multan Division, Multan and others (PLD 1966 SC 388).
(24) Government of North-West Frontier Province through Secretary Agriculture and others v.
8. Rahimullah and others (1992 SCMR 750).
(25) M/s. Javedan Cement Limited v. Government of Sindh through Secretary Ministry of Local Government and others (2005 YLR 285(2)).
(26) Saiyyid Abul A'la Maudoodi v. The Government of West Pakistan (PLD 1964 Supreme Court 673).
(27) Muhammad Arif v. Muhammad Kawshair Ali (PLD 1969 Supreme Court 435).
(28) Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others (PLD 2006 Supreme Court 249).
9. ' Mr. Shafi Muhammad Memon, learned A.A.G. Sindh has contended that Agricultural Produce Market Act, 1939 being special law is holding the field and market fee could be collected under the said Act and not otherwise and relies upon earlier Division Bench's order of this Court relied upon by the counsel for the petitioner.
10. ' We have considered the submissions made by learned counsel for the parties and have gone through the record.
11. Although, it is apparent from the record that no approval of Government of Sindh for levy of fee in terms of section 116 of SLGO 2001 appears to have been obtained by the respondents Nos.1 and 2 nor there is any notification in the official gazette containing sanction of the Council of taxation proposal in terms of Rule 7 of the Sindh Local Government (Imposition of Tax) Rules, 2001, the learned counsel for the respondents Nos.1 and 2 has laid much emphasis on the import of section 185 of SLGO 2001. Learned counsel for the respondents Nos.1 and 2 in support of his contention that market fee was being charged prior to the promulgation of SLGO 2001 has merely relied upon receipts filed by the petitioner with the petition as annexure P/2-A to P/2-M. All these receipts appear to be of the year 2007-2008 and/or 2008-2009. There is no receipt of collection of market fee by Union Council under SLGO 1979. No document whatsoever has been placed on record to show that at any point of time the Union Council under the Ordinance 1979 had authority to collect the market fee and that in fact it was doing so prior to promulgation of SLGO 2001. The reliance of receipts of 2007-2008 and/or 2008-2009 provides no support to the respondents Nos.1 and 2 as the provision of section 185 of SLGO 2001 provides for fee being charged, levied and collected by the Local Council immediately before the SLGO 2001 came into operation. The Ordinance being of 2001, there ought to be authority vested A in the Local Council/Union Council under the Ordinance, 1979 to collect market fee and such fact also ought to have been established through documentary evidence which, however, is altogether missing in the present case.
12. ' The petitioners' counsel has relied upon the order dated 25-9-2007 passed by Division Bench of this Court in Constitutional Petition Nos.D-411/2006 and D-996/2006. In our view the question raised in the present Constitutional Petition is also answered by the said order which is of Division Bench of this Court and we have no reason to disagree with the same. The relevant portion of the same order is as follows: "As regards the respective power of the Market Committee and the Taluka Council to levy and Collect the market fee on agricultural produce, the question appears to have been settled by a Division Bench judgment of this Court in C.Ps. Nos.348/01, 102, 1335, 1340, 1341, 1355, 143, 1698, 1978 of 2002 and 1089 of 2003 decided on 18-1-2003 to which one of us Sabihuddin Ahmed, CJ., was a party. It has also been held that the provisions of the Sindh Local Government Ordinance, 2001, purport to override any other law to the contrary it is also noticed that whereas under the Sindh Local Government Ordinance, 1979, the Provincial Government could restrain a local council from imposing market fee and allows a Market Committee to do so, the new Ordinance provides greater autonomy to the local body and contains no such restraining power. Therefore, whenever the power to impose market fee is exercised by a Taluka Council, the authority of the market Committee to do so would come under eclipse.
13. ' As far as the position taken up by the Taluka Council is concerned, the admitted position seems to be that no measure to impose the fee has been taken by the Council itself and it only seems to be relying on a levy imposed by the Union Council under the 1979 Ordinance.
14. ' From the material placed before us, it seems that while taxation proposal under the Rules was duly put up, objections were invited and even approval of the Provincial Government was accorded, no notification levying the fee was issued as required by Rule 7 of the Sindh Council (Imposition of Tax) Rules.
15. ' An opportunity to locate such a Notification was granted but the concerned Officer seems to have personally gone through the file and reported that he was unable to find any such Notification.
16. ' Mr. Kazi Khalid Ali, learned Additional Advocate-General attempted to argue that Notification may not necessarily be published in the official Gazette and relied upon a pronouncement of the Hon'ble Supreme Court in Saghir Ahmed v. Province of Punjab (PLD 2004 SC 261). In the above case their lordships held that the word "notified" used in the Punjab Acquisition of Land (Housing Act) did not imply Notification through a publication in the official Gazette. The particulars in the above case do not appear to apply in the instant case as Rule 7 itself clearly states of Notification in the official Gazette and even otherwise Courts have insisted on strict performance of procedural pre- conditions in fiscal matters.
17. ' For the foregoing reasons, we are of the view that no lawful market fee on agricultural produce had been imposed by the Union Council which could be collected by the Taluka Council Administration and as such Market Committee is fully justified in collecting the market fee till such time that any market fee is imposed by the Taluka Council strictly in accordance with the provisions of Sindh Local Government Ordinance, 2001.
18. ' Both petitions stand disposed of in the above terms."
19. ' Learned counsel for the respondents Nos.1 and 2 cited large number of case law as noted above but such case law either is not applicable or is distinguishable from the facts and circumstances of the present case. The Hon'ble Supreme Court seems to have granted leave to appeal in the case of Secretary Market Committee, Setharaja at Thari Mirwa, District Khairpur v. Government of Sindh and others (2006 SCMR 385) but it was not shown to us that such appeal has been decided by the Hon'ble Supreme Court by taking a different view from the one expressed in the order dated 25-9- 2007 by Division Bench of this Court.