1. AJMAL MIAN, J.-Since these 4 petitions involved common question of law, was intend to dispose of the same by this common judgment. The, brief facts leading to the filing of the above petitions are that the 4 petitioners are dealing inter alia in dangerous petroleum and have set up some petrol pumps in Karachi for sale of the same to tire individual consumers. It seems that inter alia 1970 the Petitioners received certain bills towards the alleged fee for petrol pumps and air towers. The details of the above bills are as follows
(1) W. P. No. 199/72, Rs. 12,29,290
(2) W. P. No. 209/72, Rs. 5,43,936.48
(3) W. P. No. 210/72, Rs. 1,34,880
(4) W. P. No. 310/72, Rs. 4,42,816
2. It further seems that petitioners filed objections to the above bills, before the Chairman of the Karachi Municipal Corporation (hereinafter referred to as the K.M.C.), which were dismissed on 2-3- 1970. The petitioners being aggrieved by the above order filed appeals before the Controlling Authority. Namely, the Commissioner of Karachi, which were allowed by an order dated 4-4-1970 and the cases were remanded back to the Chairman K M. C. With the direction to re-hear the matters afresh after notice to the petitioners. After -the above remand order, the Chairman K. M. C.
2. Hearts the matters and by his order dated 14-12-1970 held that the petitioners were liable to pay Petrol Pump fee at the rate of Rs. 1,200 per filling unit per annum. However, as regards the fee towards the air towers, it was ordered by him that the matter be kept pending. The petitioners again aggrieved by the above order filed appeals before the Commissioner Karachi, which were transferred to the Additional Commissioner Karachi, who by his impugned order dated 6-3-1972 partly allowed the appeals to the extent that it was held that the petitioners were liable to pay petrol pumps fee at the rate of Rs. 1,200 per Petrol Pump per annum. The petitioners being aggrieved by the above order filed the present petition in 1972 challenging the above order of the Commissioner. The petitioners have prayed for more or less identical reliefs in each of the petition.
3. It will be advantageous to quote hereinbelow the reliefs claimed in one of the petitions namely, Petition No. 199/72, which read as follows "12. It is, therefore, prayed that this Hon'ble Court may be pleased to
(i) declare that the demands made by the Respondent No. 3 for payment of petrol pump fee is without lawful authority and of no legal effect ;
(ii) to direct Respondent No. 2 to allow the objections filed by the Petitioners against the demands made by Respondent No. 3 ; (i.e) to direct Respondent No. 1 to allow the Petition filed by the Petitioners against the order of Respondent No. 2 to the full extent ;
(iv) to give such other or further direction as on the facts and circumstances of the case may be deemed just and proper ; and
(v) grant costs of this Petition."
3. (a) It further seems that while the above petitions were pending Ordinance No. IV of 1975, namely, the Sind Peoples Local Government (Amendment) Ordinance, 1975 was promulgated and gazetted in the Gazette Notification, Extraordinary, Part 1 dated 14th October, 1975, whereby inter alia clause
(d) was added to in para. 5 of Schedule II to the Sind Peoples Local Government Ordinance, 1972 providing that "no Petrol Pump shall be installed at any premises in Karachi and within the municipal limits of any other municipality if such other municipality so decides. The above amending Ordinance also enacted section 3, which provided that `notwithstanding anything to the contrary contained under any law the petrol pump fee, levied, charged elected or realised by the K.
4. M. C. For the period from the 16th April, X60 to the coming into force of this Ordinance shall be deemed to have :en validly levied, charged, collected or realised as the case may be. Id where such fee has not been collected or realised before the coming-- to force of this Ordinance the same shall be recoverable as arrears accordance with the provisions of Sind Peoples Local Government ordinance, 1972 (Sind Ordinance II of 1972)".
(b) It also seems that after the passing of the above validating ordinance fresh bills were issued to the petitioners on the basis of Rs. 1.200 per filling unit per annum and not on the basis of Rs. 1200 petrol Pump as was ordered by the Additional Commissioner in his foresaid order dated 6-3-199,2.
5. It further seems that after the receipt f the above fresh demand notices, the petitioners made representations on or about 16-12-1975 to the Land Manager of the K. M- C. Pointing out herein that the above demand was against the understanding, which was on the effect that no demand would be raised during the pendency of the above writ petitions. However, this plea was rejected by the K.
6. M. C. In 29-12-1975. It also seems that on 25-5-1979 the Sind Local Government ordinance, .1979 was enforced containing identical provisions as were obtained in 1972 Ordinance. It further seems that the K. M. C. After ejecting the petitioners' above representation dated 16-12-1975 started causing dismantling of the Petrol Pumps in respect of which Petrol Pump see was not paid. As a result of the above action, the petitioners and the C. M. C. Arrived at an arrangement on 9-1-1976 without prejudice to their rights and contentions, whereby the petitioners agreed to pay the arrears to December, 1975 by certain date and to pay the Petrol Pump Fee v. e. f. January 1976 at the rate of Rs. 1,200 per Petrol Pump per annum end not per filling unit as was demanded. The above arrangement was fled in the above petitions, which was accepted by this Court by its order dated 9-1-1976. It may be advantageous to reproduce hereinbelow the wordings of the above arrangement and the order passed thereon which reads as follows :- "1. That without prejudice to the legal and factual contention raised by the parties they have agreed that pending the decision of the petition petitioners pay to respondent No. 3, the Karachi Municipal Corporation Petrol Pump Fee claimed as under subject to adjustment and/or refund to them
(a) At Rs. 1,200 per annum per Petrol Station from 16-4-60 or the date of Commission of the Petrol Station whichever is later till December, 1975 for their Petrol Stations in Municipal Area less any amount paid in respect of K. M. C. Sites, within a week from now.
(b) Petitioners continue to pay at: the same rate from January, 1976 onwards till the, decision of this petition.
(2) That the K. M. C. Shall on payment under 1 (a) immediately restore the Petrol Pumps/dispensing units of petitioners removed or disma n--tled by them up to-date.
(3) That in view of the above agreement reached between the parties no alders may be. Passed on the injunction application made by the petitioners, and the agreement reached be placed on the record."
7. Learned counsel for the parties filed a settlement in writing by which the parties have agreed to a tentative arrangement pending disposal of the petition, and pray that the agreement reached between them may be placed on record and no order on merits of this application be passed. We, therefore, accept the arrangement that has been made by the parties out side the Court and make no order on this application. The application is disposed of accordingly.
8. (Sd.) Chief Justice (Sd.) Judge
4. It further seems that in pursuance of the above arrangement the petitioners have cleared the above arrears and have also been paying the licence fee at the rate of Rs. 1,200 per Petrol Pump.
5. (a) In support of the above petition Mr. Ali Ahmed Fazeel, learned counsel for the petitioners in the above petitions except ssin W. P. No. 209/1972 has made the following submissions :
(i) That in 1928 the Petrol Pump fee was imposed at the rate of Rs. 10 per month for installing petrol pumps on the footpaths vested in their K.M.C. And since petrol pumps involved in the petitions are not situated on the footpaths, the K.M.C. Is not entitled to raise any demand in respect of the Petrol Pump Fee.
(ii) That after the enforcement of late K.M.C. Act 1933 no levy of fee in fact was made under the Act, which could have been saved by section 4 (2) of the Municipal Administration Ordinance, 1960. .
9. (i.e) That in any case petroleum being exclusively a central subject, the K.M.C. Or the Provincial legislature was not competent to impose any fee in respect of setting up of petrol pumps.
(iv) That the Sind Peoples Local Government (Amendment) Ordinance, 1975 purporting to validate the levy of Petrol Pump Fee has not in fact validated and could not have validated and in any case the same had expired after the expiry of 3 months.
(b) Mr. S. A. Sarwana, learned counsel for the petitioner in Petition No, 209/72 has adopted the arguments of Mr. Ali Ahmed Fazeel and to reinforce his submission on the point that the petroleum is exclusive a central subject, has referred to the. Regulations of Mines and Oil Fields and Mineral Development (Government Control) Act, 1948 and the Rules of 1948 being the Rules framed thereunder.
(e) On the other hand Mr. Usman Ghani Rashid assisted by Mr. S. M. Muslim Naqvi has contended as follows :-
(i) That the Petrol Pump Fee in any case was validly levied under the K.M.C. Act, 1933 and, therefore, it was saved by section 4 (2) of the Municipal. Administration Ordinance, 1960. "
(ii) The petrol pump fee is also saved by Article 143 (2) of the Govt. Of India Act, 1935 and by subsequent Constitutional Documents.
10. (i.e) That even otherwise, the Federal Government itself had admitted the factum that the local authorities had the power to impose petrol pump fee by enacting the Petroleum Act 19,34 and by issuing a notifi--cation under section 31 of the said Act.
11. That since the imposition of the fee on Petrol Pump was legal there is no need of pressing into service the above validating Ordinance of 1975.
6. (a) Reverting to Mr. A. A. Fazeel's contention that in 1928 the Petrol Pump Fee was levied for the use of the footpaths vested in the K. M.C. And since the petrol pumps involved in the petitions are not situated on the footpaths, the K.M.C. Is not entitled to raise any demand in respect thereof, it may be, observed that there are three resolutions on the above subject, namely, dated, 14-5-1928, 9-1-1955 and 29-5-1958,. It may be advantageous to quote to above 3 resolutions, which read as follows "Resolution No. 362 Dated 14-5-1928. Proposed by Mr. Hoshang N. E. Dinshaw and seconded by Mr. Hatini A. Alavi :-- "That as recommended by the Managing Committee in their Resolution No. 749, dated 21st April 1928, fees as follows be fixed for permission to (1) install Petrol Pumps on Footpaths acid (2) keep Oil Cabinets on road sides :- Petrol Pumps Rs. 2 per month each Carried on costs Oil Cabinets
(ii) Resolution No. 940 Dated 26.1-1955.
12. That the Standing Committee is pleased to accord their sanction with immediate effect to the revision of Petrol Pump fee rate from with 10 p. m. To Rs. 50 p. m. For one Petrol pump under section 230 subsection (3) of Municipal Act, 1933."
13. (i.e) Resolution No. 876 Dated 29-5-1968, of the Municipal Com--missioner exercising the, powers of the Standing Committee :~ "That the Standing Committee is pleased to accord sanction with immediate effect to the revision of petrol primp fee rate from Rs. 600 per annum per pump to Rs. 1,200 per- annum per Pump under section 230, subsection (3) of the Municipal Act; 1933."
14. Sd/- Municipal Commissioner.''
(b) It may be noticed that the K. M. C. In the special general meeting held: on 14-5-1928 accepted the recommendations of the then Managing Committee and resolved to levy fee for permitting to install petrol pumps on footpaths and for allowing to keep oil cabinets on roadside at the rate of Rs.
15. 10 per month and Rs. 2 p. m respectively. It. May further be noticed that the Standing Committee of the K.M.C. In its meeting held on 26-1-1955 accorded its sanction with immediate effect to the revision of Petrol- Pump Fee rate from Rs. 10 to Rs: 50 p. m. Per. Petrol pump under section 230 (3) of the Municipal Act, 1933. It may also be noticed that the K.M.C"s Standing -Committee in its meeting held on 29-5:1958 resolved to accord the sanction of the suggestion made by the Standing Committee to the revision of the Petrol Pump Fee from Rs. 600 per Pump to Rs. 1,200 per pump per annum under section- 230 (3) of the Municipal Act, 1933 (heretnaiter referred to as the Act). It may be pertinent to mention that to the notes which were put up before the Standing Committee for revision of the rates of the Petrol Pump fee, the reasons for revising the rate of petrol pump fee given were that the Karachi's population had increased manifolds and the petrol pump business was very profitable. It may also be pointed out that the above first resolution of 1928 had made no reference to any provision of law under which it was imposed, whereas in the aforesaid two subsequent resolutions of 1955 'and 1958 reference to section 230 (3) of the Act had been made, but the aforesaid reasons for revising the rate of fee were given. It was not stated that the above revision was on account of conferment of any power upon the K.M.C. By virtue of the aforesaid provision of the Act.
16. (c). It has been vehemently urged by--Mf. A; A. Fazeel that the revision of the Petrol Pump Fee in 1955 and 1958 was on the assumption that K.M.C. Was still permitting the use of the footpaths for installing the petrol pumps. On the other hand it was contended by Mr. Usman Ghani Rashid that no such inference can be drawn: From the reading of the resolutions quoted hereinabove it is evident that the two subsequent revisions in rate of Petrol Pump Fee were in fact in continuation of the first resolution of 14-5-1928, though a reference to section 230 (3) of the Municipal Act, 1933 was made. The above contentions of Mr. Fazeel is not devoid of force.
7. (a) Be that as it may, we will have to examine whether from the resolutions of 1955 and 1958, it can be spelled out- that the above levy was lawfully made under the Act of 1933. Reference has been Made by the counsel for the parties to sections 154, 155 and 230 of the K.M.C. Act, 1.933,-:which read as, follows :-- . ,
(i) 154.-Egcept in accordance with the provisions, of this Act, no person shall-
(a) store or keep in any premises any articles which are prescribed as dangerous or offensive, or - as being, or likely to `be, a nuisance to public, or dangerous to life, health or property.
(b) store or keep in any premises4he hide .Or any part of the carcass of any animal afflicted at the time of its death with infectious or contagious disease ; or 10
(c) carry-on or allow to be carried on in any premises any trade, manufacture, industry or operation which is prescribed as digitations to life, health or property or as likely to create a nuisance, either from its nature or by reason of the manner in which or the conditions under which the same may be carried on provided that nothing in this section shall affect the provisions of the Indian. Explosives Act, 1884, or the Indian Petroleum Act, -1890.
17. 155.-(1) Except under and in conformity with the terms and condi--tions of a licence granted by the Chief Officer in accordance with general or special orders issued by the Standing Committee in that behalf no person shall
(a) carry on within the City the trade or operations of a furrier
(b) keep in or upon any premises, for any purpose whatever, any articles specified in Part I of Schedule VII or any article specified in Part II thereof in excess of the quantity therein prescribed as the maximum quantity of such article which may at any one time be kept in or upon the same premises without a licence ;
(c) keep in or upon any premises, except for domestic use, any article specified to Part III of Schedule VII ;
(d) keep in or upon any building used or intended to be used as a dwelling-house or within fifteen feet of such building, any quantity of cotton exceeding four hundred weight
(e) keep or allow to be kept in or upon any premises any four-footed animal,
(f) for sale,
(ii) for letting out on hire.
18. (i.e) for any purpose for which any charge or remuneration is made or received, or
(iv) for the sale of any produce thereof ;
(f) carry on or allow to be carried on, in or upon any premises. .
(i) any of the trades specified in Part IV of Schedule VII or any operations connected therewith
(ii) any trade or operation which in the opinion of the Chief Officer is dangerous to life, health or property, or likely to create a nui--sance either from its nature, or by reason of the manner in which, or the conditions under which, the same may be carried on.
19. Explanation L-A person shall be deemed to have known that a trade or operation is, in the opinion of the Chief Officer, dangerous or likely to create a nuisance within the meaning of this paragraph, after written notice to that effect signed by the Chief Officer has been served on such person or affixed to the premises to which it relates. '
20. Explanation 2.-(1) A person shall be deemed to carry on a trade or operation or to allow it to be carried on within the meaning of this paragraph if he does any act in furtherance of such trade or is in any way engaged on concerned therein as principal, agent, masteror servant or in any other similar capacity.
(2) It shall be in the discretion of the Chief Officer to grant a licence for any of the purposes referred to in subsection (1) subject to such restriction or conditions as he shall think fit to prescribe, or to refuse to grant such licence.
(3) Every person to whom a licence is granted by the Chief Officer under subsection (2) shall keep licence in or upon the premises, if any, to which it relates.
(4) Nothing in this section shall be deemed to apply to mills for spinning or weaving cotton. Wool silk or jute or to any other mill or factory which the Chief Officer with the previous approval of the Standing Committee may from time to time specially exempt from the operation thereof."
21. "(i.e) 230. (1) Wherever it is prescribed that the permission of the Corporation is necessary for the doing of any act, such permission shall (unless it is expressly provided otherwise) be in writing.
(2) A licence or permission given under this Act shall specify the period for which and the conditions and limitations subject to which, it is granted, and shall be signed in the prescribed manner.
(3) For every licence or permission a fee may be charged at such rate as shall from time to time be fixed by the Chief Officer with the previous approval of the Standing Committee.
(4) Every person to whom a licence or permission has been granted shall produce it at all reasonable hours for inspection if required by the Chief Officer, or any Officer authorised by him in this behalf.
(5) A licence or permission may at any time be suspended or revoked by the Chief Officer, if any one of its conditions or limitations is infringed or evaded by the person to whom it was granted, or if the said person is convicted of an infringement of any of the provisions of this Act is any matter to which the. Licence or permission, relates.
(6) When any licence or permission is suspended or revoked, or when the period for which it was granted has expired, the person to whom it was granted shall be deemed to be without a licence or permission: Provided that, pending the receipt of orders on his application, an applicant for the renewal of a licence or permission shall be entitled to act or if it had been renewed.
(7) The acceptance 'by or on behalf of the Corporation of the fee for a licence or permission shall not entitle the person paying the fee to the licence or permission.
(8) Every application for a licence or permission shall be addressed to the Chief Officer.
(9) Save in cases falling under sections 151 and 154, if the orders of the Corporation on an application for a licence or permission which complies with the provisions of the foregoing subsections are not communicated to the applicant within six weeks from the date of receipt of the applications by the Chief Officer, the applicant may act as if the licence or permission had been granted for the year or for any shorter period mentioned in the application."
(b) It may be noticed that section 154 prohibits the storing and keeping in any premises articles,- which are prescribed as dangerous or offensive or is being or likely - to be a nuisance to public or dangerous to life, health or property and the articles mentioned in its clause (b). It also prohibits carrying oh any trade in the above articles. It further provided that nothing in the section shall affect the provisions of the Indian Explosives Act, 1884 or the Indian Petroleum Act. 1899. It may also be noticed that clause (b) of subsection (1) of section 155 provides that no person shall keep in or upon any premises for any purpose whatsoever. Any articles specified in Part I of Schedule VII or any article specified in Part II thereof in excess of the quantity therein prescribed as the maximum quantity of such article, which may at any time is or upon the premises can be kept without a licence. It may be further noticed that clause (f) of subsection (1) of section 155 provides that no person shall carry on or allow to be carried on. In or upon any premises any of the trades specified in Part IV of Schedule VII or any operations connected therewith.
22. Whereas section 230 lays down that wherever it is prescribed that the permission of the corporation is necessary for doing any act, such permis--sion shall (unless it is expressly provided otherwise be in writing and that a licence or permission given under the Act shall specify the period for which and the condition and limitation subject to which it is granted and shall be signed in the prescribed manner. Furthermore, it is provided that for every licence or permission a fee shall be charged at such rate as from time to time be fixed by the Chief Officer with previous approval of the Standing Committee. It also provides that every person to whom a licence is or permission has been granted shall produce it at all reasonable hour for inspection if required by the Chief Officer or any Officer authorised by him. It may also be pertinent to refer to Parts I, II and III of Schedule VII referred to in above section 155 of the K.M.C. Act Part I of Schedule VII provides that articles .
23. Mentioned therein shall not be kept without a licence is or upon the premises which inter alia include blood, dynamite, blasting powder etc. Whereas Part II provides that .Article beyond the quantities specified therein shall not be kept without licence, which inter alia include petroleum as defined in the Indian Petroleum Act, 1899 beyond 10 gallons, and dangerous petroleum as defined in the said Act not more than 3 gallons and oil of other sort not more than 15 gallons. Whereas Part IV provides that trade or operation connected with baking, casting metals, dyeing cloth or yarn, indigo or other colour, keeping of eating houses, keeping of sweetmeat shops except premises already licensed as eating houses. Keeping of hair sallons or barbar shops, tanning pressing or packing hides in or upon a premises without a licence except .So far exempted under the rules or skin whether raw or dried.
(c) It has been vehemently urged by Mr. Usman Ghani Rashid that since in clause (b) of subsection
(1) of section 155 the words used are "for any purpose whatsoever" even storing of dangerous petrol in a petrol pump for sale is covered by the above. Phrase. On the other hand it gas been urged by Mr. A. A. Fazeel that clause (b) of the subsection (1) of section 155 deals with the keeping of a thing in or upon premises whereas clause (f) of subsection (1) deals with trades in articles specified in Part IV of Schedule VII and since the petitioners axe engaged in trade of dangerous petroleum, above clause '(b) cannot be pressed into service and that appropriate provision if any is the aforesaid clause (f). It is true that the clause (b) of subsection (1) of section 155 speaks of keeping in or upon any premises for any purposes whatsoever any article specified in Parts I and It of Schedule VII of the Act which include dangerous petroleum but in our view this clause (b) 'does not cover storing of dangerous petrol at petrol pumps for sale. The main object of storing petrol at a petrol pumps seems to be to sell and not to store within the compass of clause (b) referred to hereinabove. Petrol pumps get supply of petrol daily once or twice. It is a continuing process uninterrupted and, therefore, it cannot be urged that petrol is stored at the petrol pump. The object of clause (b) of subsection (1) of section 155 seems to be to control keeping of the articles mentioned in Parts I and II of Schedule VII, whereas the object of clause (f) of the above subsection
(1) of section 155 appears to be to control trade of the articles specified in Part IV of Schedule VII. It is an admitted position as pointed out hereinabove that even for storage of dangerous petroleum no fee was prescribed under item 22 of the Table of fee in contrast to item No. 21 of the above table prepared under Part 11 of Schedule V11 of the Act. It was also contended by Mr. Usman Ghani Rashid that the omission to mention the scale of fee for dangerous petroleum in the aforesaid table prepared in respect of articles mentioned in Part II of Schedule VII does not render the instant levy of licence fee as illegal as under subsection (3) of section 230, the Chief Officer with the previous approval of the Standing Committee may fix fee to be charged for a licence or permission from time to time. It -was further contended by him that resolutions of 1955 and 1958 were passed by the Standing Committee are in fact in pursuance of the above provision. It is true that under subsection (3) of section 230 of the Act, the Chief Officer with the previous approval of the Standing Committee is authorised to prescribe licence fee or permission fee to be charged from time to time. It is also true that in the aforesaid resolutions of 1955 and 1958 reference has been made to subsection (3) of section 230 of the Act. However, it has been contended by Mr. Fazeel as pointed out hereinabove that in fact through the aforesaid two resolutions, the K. M. C. Bad revised the rate of the fee levied for the use of footpaths, but the aforesaid two subsequent resolutions of 1955 and of 1958 were in contention of resolution of 1928. Whereas Mr. Usman Ghani Rashid, learned counsel for the K. M. C. Has urged that the above resolutions of 1955 and of 1958 are independent from the resolution of 1928.
8. (a) Even if we were to hold that under the above subsection (3) of section 230 the Standing Committee had imposed licence fee in respect of petrol pumps installed or private plots, it would necessitate the examination of the question as to whether the K. M. C. Was competent in law to levy the same. It has been vehemently urged by Mr. Fazeel that petroleum has been a central subject throughout and which fact is even acknowledged in section 154 of the Act, the proviso of which provides that nothing in this section shall affect the provisions of Indian Explosives Act, 1884 or the Indian Petroleum Act, 1899. It may be pertinent to refer to entries Nos. 32 and 59 of the VII Schedule to the Government of India Act, 1935, which read as follows :- "Entry No. 32 : Petroleum and other liquids, and substances declared by Federal Law to be dangerously inflammable, so far as regards possession, storage and transport."
24. "Entry No. 59 : Fees in respect of any of the matters in this list, but not including fees taken in any Court,"
(b) From the above entries of the VIl Schedule to the Government of India Act, it is evident that Federal Legislature was competent to enact in respect of petroleum and other liquids and substances declared by the Federal Government dangerously inflammable in respect of its possession, storage and transport and also to levy fee in respect thereof. However, it was urged by Mr. Usman Ghani that Article 143 (2) of the very Act saved the levy in question. It may be advantageous to refer to the above Article 143 (2), which provides that "any taxes, duties, cases of fees which, immediately before the commencement of Part III of this Act, were being lawfully levied by any Provincial Government municipality or other local authority or body for the purposes of the province, municipality, district or other local area under a law in force on first day of January nineteen hundred thirty-five, may notwithstanding that those taxes, duties, cesses or fees are mentioned in the Federal Legislative List, continue to be levied and to be applied to the. Same purposes until provision to the contrary is made by the Federal Legislature." Mr. Usman Ghani has also referred to section 96 subsection (3), which was enacted by Sind Act III of 1946 with retrospective effect (with effect from 1st November, 1933). The above section 96 empowered the K.
25. M. C. To impose taxes on property. Subsection (3) of the above section provides that nothing in this section shall authorise the imposition of any tax which the Provincial Legislature has no power to impose in the province under the Government of India Act, 1935 Provided that, if the corporation was immediately before the commencement of Part III of the said Act lawfully, levying any such tax under this section as then in force, it may continue to levy that tax until provision to- the contrary is made by the Central Legislature". It may be observed that subsection (3) of section 96 is based on sub-Article (2) of Article 143 of the Government of India Act, 1935 referred hereinabove. In order to press into service Article 143 (2), it is imperative to show that immediately before the commencement of Part III of the Act, 1935 any provincial Government, municipality, local authority or body for the purpose of provinces had levied any taxes, duties cesses undet a law in force prior to the first day of January, 1935. This leads us to examine the question, whether the levy in question was competently levied by the K. M. C. Prior to Ist January, 1935. It is an admitted position that the resolution of 1928 quoted hereinabove in para. 6 (a) does not refer to any law under which the above imposition was made. Prima facie it seems that the Petrol Pump Fee at the rate of Rs. 10 p.m. Was considered for permitting the installation of petrol pumps at the footpaths which vested in the K. M. C. And Rs. 2 p. m. Fee for permitting oil cabinets on the road side. In this view of the matter on 1st January, 1935 there was no fee imposed under the Act, 1933, as it is an admitted position that the first resolution for revising the fee was passed in 1955, and, therefore, neither Article 143 (2) of the Government of India Act, 1935 nor subsection (3) of section 96 of the Act can be pressed into service. Furthermore, neither sub--clause (6) of Article 230 of the Constitution of the Islamic Republic of Pakistan, 195,6 nor section 4 (2) of the Municipal Administration Ordinance, 1960 can be pressed into ;service. It may be observed that Article 230 (6) of Constitution of 1956 provided that "notwithstanding anything in the Constitution all taxes and lee levied under the law enforced immediately before this Constitution play shall continue to be levied unless they are varied or abolished by Act of the appropriate legislature". Whereas sub--section (2) of section 4 of the Municipal Administration Ordinance, 1960 provided that, "where an enactment stands repealed under subsection (1) any appointment, rule, regulation or bye-law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall so far as it is not inconsistent with the provisions of this Ordinance and the rules be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance." It may be pertinent to observe here that all the Constitutions of Pakistan enacted in 1956, 1962 and 1973 provided petroleum in the exclusive.
26. Federal Legislative list and so also fee in respect of matters covered by the aforesaid list in line of Government of India Act, 1935 except that the words, "so far as regards possession, storage and transport" employed in entry No. 32 of the VIIth schedule to the latter Act, have been omitted. This omission is fact enlarges the scope of the competency of the Federal Legislative.
(c) Mr. Faxeel has referred to the case of Attorney-General of Alberta v. Attorney General of Canada (AIR 1943 P C 76), case of Attorney General of Canada v. Attorney General of the Province of Quebec and another, (AIR 1947 P C 44) and the case of Government of West Pakistan v. Hajee Ghulam Mohiuddin and another (PLD 1960 Pesh. 163).
(i) As regards the case reported in AIR 1943 P C 76, it may be stated that in the above case the facts were that the Debt Adjustment Act, 1937 enacted by the State of Alberta was assailed before the Supreme Court of Canada, which held that it was ultra vires of the Legislature of Alberta. The matter was brought before the Privy Council and the question for consideration before the Privy Council was, whether the decision given by the Supreme Court of Canada was correct and in consonance with law. In that context it was held that if a legislation comes in pith and substance within one of the classes specially enumerated in the Central Legislature, it is beyond the legislative competence of the Provincial Legislature and in such a case it is immaterial whether the Central Legislature has or has not dealt with the subject by the legislation or to use other well known words, whether that legislative field has or has not been occupied by the legis--lation of Central .Assembly. The Privy Council upheld the judgment of the Supreme Court of Canada notwithstanding the fact that the above Act intended to relieve the distress of residents farmers and others.
(ii) Referring to the case reported in AIR 1947 P C 44, it may be mentioned that in the above case the question in issue before the Privy Council was whether the Quebec statute entitled "An Act Respecting Certain Vacant Property Without An Owner" declaring bank deposits which for 30 years had not been subject matter of operation of claim by the person entitled to, as vacant property belonging to His Majesty was ultra vires of the power of the Quebec Legislature, it was held that since the banking was an enumerated subject in section 91 of the British North America Act, it was within the exclusive power of the dominions Legislature, and hence, the above Act was ultra vires of the provincial legislature competency of Quebec Legislature.
27. (i.e) With reference to the case reported in PLD 1960 Pesh. 163, it may be observed that in the above case the facts were that Haji Ghulam Mohuddin and another, who were fruit merchants in Peshawar filed a suit against the erstwhile West Pakistan Government for the recovery of Rs. 68,930, which was realised from the plaintiffs by its predecessor, the Government of N.W.F.P. By virtue of a noti--fication issued under the N. W. F. P. Essential Articles Control (Temporary Power) Act, 1947 as licence fee imposed on the export of fruits at the rate of Re. I per maund from the province. This fruit was imported by the plaintiffs from Afghanistan during the period and exported 1952-54 to certain points of Pakistan outside the N.- W. F. P.
28. It was contended that the licence fee levied was not in fact fee but in the nature of a tax militating against section 297 of the Government of India Act, 1935. It was held by a D. B. That the above levy and prohibition of export from the N.-W.F.P. To other parts of Pakistan was beyond the competency of the provincial legislature. It Was also urged by the learned Advocate-General appearing for the Government that in view of Article 4 of the Law (Continuance in Force) Order, 1958 (I of 1958) the Act XV of 1947 being a law in force was saved. The above contention was repelled by Kayani, C. J.
29. Sitting with S.A. Mahmood, J. And it was held that since the Provincial Legislature was not competent to enact a law or a part of law, it was invalid from its very inception and it could not be regarded as a law in force within the meaning of Article 4 of Laws (Continuance in Force) Order. Mr. Ali Ahmed Fazeel has relied upon this case also in order to show that there could not have been any saving of the instant fee under section 4 (2) of the Municipal Administration Ordinance, 1960 as it could not have been validly levied under the late K.M.C. Act, 1933 in view of entry No. 32 of the VIIth Schedule to the Govern--ment of India Act, .1935. This judgment in fact lends support to Mr. Ali Ahmed Fazeel's above contention.
(d) It is a well-settled principle of law that there cannot be a saving of a law which was invalid from its inception being ultra vires of the legislative power of the legislature concerned. The above-cited cases on all fours are applicable to the instant case inasmuch as Entry No. 32 of Schedule VII of Government of India Act, 1935 provided storage, transport and possession of petroleum as exclusively a central subject and also levy of fee under entry No. 59 of the above Schedule VII in respect of the matters covered by the said Schedule, and, therefore, the provincial legislature or the K.M.C. Could not have levied the fee on Petrol Pump.
(9) Mr. Usman Ghani Rashid, learned counsel for the K,M.C. Has also referred to Article 237 of the Constitution of 1962 and Article 2'19 of the Constitution of 1973, which were couched more or less in the same. Words as Article 230 (6) of the Constitution of 1956. The object of the above provisions of the Constitutions .Was to save taxes and other levies in force under any law immediately prior to the enforcement of the above Constitutional Documents. Since the fee in question was neither saved under Article 143 (2) of the Government of India Act, 1935 nor under section 4 (2) of the Municipal Administration Ordinance, 1960, the above Constitutional provisions could not have saved the instant fee and, therefore, reference to the above provisions are out of context.
30. 10.. (a) Reverting to Mr. Usman Ghani Rashid's contention that the Federal Government itself has admitted the factum that a local authority can provide fee in respect of petroleum by enactin,2 section 31 of the Petroleum Act, 1934 and by issuing a notification thereunder, it may be pertinent to quote hereinbelow section 31 of the Petroleum Act, 1934 and the notification dated 12-7-1956 thereunder,- which read as follows "Section 31.-Power to limit powers of local authorities over petroleum. Where any enactment confers powers upon any local authority in respect of the transport or storage of petroleum, the Central Government may, by notification in the Official Gazette,-
(a) limit the operation of such enactment, or
(b) restrict the exercise of such powers, in any manner it deems fit."
31. "No. I-11-3 (3)(54.-In exercise of the powers conferred by section ,31 of the Petroleum Act. 1934 (XXX of 1934), read with the Government of India, Department of Labour Notification No. Ex. 108, dated the 14th January, 1946, the Central Government is pleased to limit the operation of the enactments specified in the schedule annexed hereto in so far as the said enactments relate to the storage and licensing of Petroleum Carbide of Calcium and Films to the extent stated against each item, relating to the following matters. The authorities under the said enactments shall not grant licences for quantities or levy licence fees higher than those specified herein
(i) Storage of articles.
32. Maximum quantityMaximum LicensableLicence fees
(a) Dangerous Petroleum (F.P.Leviable below 76-- F) a g., Petrol,Rs. As. Ps.
33. Gasolene acetone.6 galls.4 - 0 - 0 benzine etc. (for use only and not for sale).
(b) Non-dangerous Petroleum500 galls.12 - 0 - 0 (F.P. Not below 78-- F but 150-- F) e.g. Kerosine Oil, Powerine (not in bulk)
(c) Heavy Petroleum (F.P. Not10,000 galls.80 - 0 - 0 below 150-- F) excluding Storage in tanks connected with a pump outfit for fueling vehicles.
(d) Carbide of Calcium28 lbs.8 - 0 - 0
(e) Films (Nitrocallulose base)20 lbs.20 - 0 - 0
(ii) Conditions of Licences.
34. The authorities under the said enactments shall not prescribe any condition which is repugnant to the provisions of the Petroleum Act, 1934, the Petroleum and Carbide of Calcium Rules, 1937, and the Cinema--tograph Films Rule, 1948.
35. The Schedule
(1) The City of Karachi Municipal Act, 1933 (Bombay Act (XXII of 1933). .
(2) The City of Lahore Corporation Act, 1941 (Punjab Act XV of 1941).
(3) The Banyat Municipal Act, 1932 (Bangal Act XV of 1932).
(4) The Punjab Municipal Act, 1911 (Punjab Act III of 1911).
(5) The Punjab Sunall Towns Act, 1921 (Punjab Act II of 1922).
(6) The North-West Frontier Province Municipal Act, 1950 (N.- W.F. P.
(7) The Quetta Municipal Law, 1896.
36. S.I- K. A. Butt, Under Secy."
(b) It may be noticed that under the above-quoted section, it has been provided that where any enactment confers power upon any local authority in respect of transport or storage of petroleum, the Central Government may by notification in the official gazette limit the operation of such enactment or restrict the exercise of such power in the manner it deems fit. It may further be noticed that the Federal Government through the aforesaid notification restricted the operation inter alia of the K.M.C. Act, 1933 (i. e. The) Act to the extent mentioned therein.
(c) It was vehemently urged by Mr. Usman Ghani Rashid that clause (c) of the above notification though mentioned heavy petroleum and provides a limit of 10,000 gallons and a fee of Rs. 80 but it excludes storage in a tank connected with a pump outfit for fueling vehicles and, therefore, from it, it follows that no embargo has been imposed upon the power of municipal committee/corporation to prescribe licence and to impose licence fee in respect of storage of heavy petroleum in tanks connected with a pump outfit for fueling vehicles. Whereas it was urged by Mr. Ali Ahmed Fazeel that since even under the Act, the K M.C. Had only power to provide for storage of heavy petroleum.
37. And not in respect of sale thereof there was no need of curtailing its power in respect of sale of heavy petroleum.,
(d) In our view merely the fact that certain provisions of the Petroleum Act, 1934 refer to the power exercisable by local authorities under the relevant enactments would not vest power in the K. M. C.
38. Or the provincial legislature to enact in respect of petroleum if otherwise not competent.
39. Furthermore, the legislative competency of the provincial legislature is to be determined with reference to the provincial legislative list provided for under the Constitutional Documents. If a provincial legislature under the Government of India Act by virtue of entry No. 32 of V11 Schedule of the Act was not competent to enact in respect of storage, transportation and possession of petroleum or to levy fee in respect thereof, a reference to the curtailment of the power of the local authorities in section 31 of the Petroleum Act, 1934 would not confer such power upon the provincial legislature. In order to determine whether a provincial legislature in Pakistan is or was competent to legislate upon a particular subject, we will have to refer to the demarcation of the legislative power provided for in the Constitutional Documents, like Government of India Act, 1935 and the Constitutions of the Islamic Republic of Pakistan of 1956, 1%2 and 1973 and not with reference to section 31 of the Petroleum Act, 1934, In our view the above contention of Mr. Usman Ghani Rashid does not in any way advance the case of the respondents.
40. 10-A. Referring to the contention of Mr. A. A. Fazeel that the Sind Peoples Local Government (Amendment) Ordinance 1975 did not validate the -above illegal levy, it may be observed that Mr. Unman Ghani Rashid, learned counsel for the K.M.C. Has submitted that since the original levy was intra vires it is not necessary to press into service the above validating Ordinance, and, therefore, he preferred not to argue on this aspect. However, Mr. A. A. Fazeel has submitted that if it is to be held that enactment relating to the dangerous petroleum is beyond the competency of the Provincial Legislature, it must follow that the validation Ordinance promulgated by the same legislative authority cannot validate. His second contention was that in any case the above Ordinance had expired on 14-1-1976 after the expiry of three months as it was not enacted as an Act within 3 months by the legislature a contemplated by Article 128 (2) of. The Constitution of 1973.
41. It may again be observed that by amending Ordinance, namely, Ordinance No 4 of 1975 in clause 2 of paragraph 5 of Schedule II of the Sind People's Local Government Ordinance, 1972 a new clause
(d) was added providing "no Petrol Pump shall be installed at any premises in Karachi and within the municipal limit f any other municipality if such municipality so decides," whereas section 3 of the aforesaid Ordinance purported to validate the Petrol Pump Fee already recovered, for the period commencing from 16th April. 1969 or which may be recovered. In our view, the KMC as a local authority may regulate the location of Petrol Pump froth the point of view of the building safety, but it cannot arrogate upon itself the power to levy a recurring fee to respect of running of Petrol Pump on the ground that Petrol Pump business is very profitable, which was the a reason given for revising the Petrol Pump Fee in 1955 and 1958. A nominal fee to cover the expenses for regulating the location of petrol pumps, may be intra vires subject to the Central Enactments. Since learned counsel for the KMC has not relied upon the validation Ordinance, in our view it is not necessary to refer to the detailed submission made; by Mr. A. A. Fazeel in respect thereof.
11. (a) It was also submitted by Mr. A. A. Fazeel that the factunt that the petitioners companies continued to pay licence fee up to 191:0 does not debar them from challenging the levy as there would be fresh ` cause of action for each fresh demand. However, no arguments were addressed by Mr. Usman Ghani on this point except that he submitted that before impugning the present demand the petitioners companies were paying licence fee in respect of petrol pumps since 1928.
42. It is an admitted position that till the time of filing of the objections by the petitioners in 1960 before the Chairman K. M.C., the petitioners were paying Petrol Pump fee to the respondent K.M.C., However, upon revision of the above Fee from Rs. 600 per annum to Rs. 1,200 per annum by the aforesaid resolution of 1958, the petitioners on receipt of the demand notices filed the objections before the Chairman which culminated in the filing of the present petitions. Mr. Fazeel, has referred to the case of Surajmal Nagoremal v. Triton Insurance Co. Ltd. (AIR 1925 P C 83) the case of Barisal Co-operative; Central Bank Ltd. v. Benoy Bhusan Gupta and another (AIR 1934 Cal. 537), the case of Commissioner of Income-tax Madras (AIR 1965 SC 1216) and the case of Treasurer of Charitable Endowments for Pakistan v. Central Board of Revenue, Islamabad and others (PLD 1981 Kar. 357).
(i) As regards the case reported in AIR 1925 P C 83, it may be observed that the question before the Privy Council, in the above case was, whether an agreement for insurance insufficiently stamped could be admitted in evidence in spite of an express prohibition provided in section 2 of the Stamps Act, 1899, it was observed by the Privy Council that "no court can enforce as valid that which competent enactments have declared shall not be valid nor is obedience to such an enactment a thing from which a Court can he dispensed by the consent of the parties or by a failure to plead or to argue the point at the outset.
(ii) With reference to the above Calcutta case reported in AIR 1934 Calcutta 537, it may be stated in the above case it was held that " a rule framed, under a statute or bye-laws framed under the rule, 'in excess of the provisions of that statute or in contravention of or inconsistent with such provisions must be regarded ultra vires of the statute and cannot be given effect to."
43. (i.e) As regards the case reported in AIR 1965 SC 1216, it may be stated that the Supreme Court of India while construing the provision of section 3 of the Income-tax Act, 1922 observed that "the doctrine approbate and reprobate" is only a species of estoppel. It applies only to conduct of parties. As in the case of estoppel, it cannot operate against the provision of a statute. If a particular income is not taxable under Income-Tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine. The equity is out of place in tax law; a particular income is either eligible to tax under the tax statute or it is not. If it is not, the Income-tax Officer has no power to impose tax on the said income.
(iv) In this regard reference may also be made to the case of Trustee of Charitable Endowments for Pakistan v. Central Board of Revenue, Islamabad and others PLD 1981 Kar. 35'1, a D. B. Of this court, to which one of us (Ajmal Mian. J.) was a party, held that a statutory functionary required by law to act in a particular manner cannot deviate from it by entering into some arrangement not warranted by law and that acquiescence on the part of a party cannot validate. It was further held that no estoppel can be pleaded against statutory law.
(b) In the instant case in our view merely the fact that the petitioners had paid Petrol Pump Fee up to 1960 would not debar them from impugning the demand if ultra vires of the power of the respondent K. M. C. Furthermore, for every fresh demand. a fresh cause of action will accrue to the s petitioners. An illegal demand cannot become legal on account of the fact that the party had paid the same in the past. It is an admitted position that the petitioners had paid the impugned demand covered by the above petitions after filing of the same without prejudice to -the rights of the parties. In this view of the matter there cannot be any estoppel or the petitioner cannot be denied a relief otherwise entitled to on the ground that in the past prior to 1960 they had made payment of Petrol Pump Fee.
12. Before parting with the above discussion, it maybe mentioned that it was also contended by Mr. Usman Ghani Rashid that since the above petitions involved disputed question of facts, writ petitions are not the appropriate remedy and that the petitioners should have filed suits, it may be observed that Mr. Fazeel has invited our attention to certain factual aspects of the petitions particularly he pointed out that the impugned demand include demand in respect of certain Petrol Pumps which were not put into operation by the time for which period the demand is made, in respect of unidentified petrol pumps and pertaining to certain petrol pumps which were closed. We have not dealt with the above factual aspects. We have confined ourselves to the Legality of the impugned demand. In this view of the matter the above contention does not merit.
13. For the aforesaid reasons we allow the above petitions and declare the impugned demands in respect of the petrol .Pumps which are no situated on the K.M.C.'s footpaths or K: M. C.'s. Land as without lawful authority and of no legal affect and the respondents are restrained from enforcing the same. However, it may be :observed that if a petrol pump is situated on K, M C,s footpath or.
44. Land, in that event the K M.C. Is entitled to recover licence fee, or rent for the use of its pro petty. In order to enable the respondent K.M.C. To obtain a stay order from the Honourable Supreme Court, we suspend operation of the above judgment for 60 days from today. In the circumstances of the cases there will be no order as to costs.