' NASIR ASLAM ZAHID, J.-These constitutional petitions call into question the validity of the notification No, OSD/Elect/LG/DP-27/79 dated 3-6-1980 of the Government of Sind (hereinafter referred to as "the impugned Notification") to the extent the Sind Government through the impugned Notification delegated its power to sanction levy of taxes to the. Councils. Then some of these petitions challenge the octroi tax, and other petitions impugn export tax, levied by different Union Councils/Town Committees/District Councils in Sind. This judgment will dispose of the following 45 constitutional petitions :- {{TABLE}} . Petitions where octroi tax is challenged No, of Petition Name of petitioner Name of council levying the tax C. P. No, D-1091/80 Allah Warayo Khan Town Committee Sita Road, Taluka Khair- pur Nathan Shah Distt. Dadu.
C. P. No, D-1196/80 Shah Murad Sugar Union Council Jhok Mills Limited. Sharif, Taluka Mirpur Bathoro, Distt.
C. P. No, D-1271/80 Abdul Majid and another Thatta, Matli Town Commi- ttee Mehrabpur, Distt.
Nawabshah.
C. P. No, D-1637/80 Bashir Ahmad Kamboo and others Town Committee, Mehrabpur, Distt.
Nawabshah.
C. P. No, D-1716/80 Muhammad Usman and another. Union Council, Bau Khan Pathan, Hala, Distt. Hyderabad.
6. C. P. No, D.125/81
7. C. P. No, D-422/81
8. C. P. No, D-467/81
9. C. P. No, D-470/81
10. C. P. No, D-490/81
11. C. P. No, D-593/81
12. C. P. No, D-603/81
13. C. P. No, D-646/81
14. C. P. No, D-663/81
15. C. P. No, D-745/81
16. C. I', No, D-1011/81
17. C. P. No, D-1051/81 Kotri Association of Trade & Industry.
Chilya Corrugated Board Mills Ltd.
Bhanero Textile Mills Limited.
Shadman Cotton Mills Limited.
Hussain Mills Ltd.
Central Cotton Mills Ltd.
Globe Textile Mills (0. E.) Limited.
National Detergent Ltd.
Indus Steel Pipes Ltd. Surriya Textile Mills Ltd. Haji Muhammad Yakoob Shoukat Ali and others.
Union Council, Bholari, Distt.
Dadu.
Union Councils Chilya & Bhimpir, Distt. Thatta.
Union Council Bholari, Distt. Dadu. do do do do do do do Union Council, Ibrahim Hydari, Karachi.
Union Council, Ibrahim Hydri Karachi.
18. " ft 1137/81 Sind Particle Board Union Council, Mills Ltd. Bholari, Distt. Dadu. #TBS 19. If #TBE 1156/81 #TBS "
46 64 #TBE 279/82 319/82 Sind Alkalis Ltd.
Sapphire Textile Mills Ltd.
Dewan Textile Mills Ltd.
Union Council, Ibrahim Hydri Karachi.
Union Council, Bholari, Distt. Dadu. do Petitions where Export Tax is challenged 22, 23.
24.
44/81 144/81 145/81 146/81 Asif Industries Ltd. And another. Indus Jute Mills Ltd.
Anwar Textile Mills Ltd.
Forbes Colloids Ltd. District Council, Shikarpur.
District Council, Thatta. do do C. P. No, D-147/81 Chilya Corrugated Board Mills Limited. District Thatta.
Council, " 44 147/81 Central Cotton Mills Ltd. Do " 44 149/81 Baksh Textile Mills Ltd. Do " ,, 150/81 Ahmad Spinning Mills Ltd. Do 41 151/81 Hamroz Industries Ltd. Do 44 44 152/81 Gharo Textile Mills Ltd. Do " 44 153/81 Annoor Textile Mills Ltd. Do " 4C 165/81 Kotri Association of Trade and Industry. District Dadu. Council, " it 453/81 Sind Fine Textile Mills Ltd. District Shikarpur. Council, 4/ 44 594/81 Central Cotton Mills Ltd. District Dadu. Council, if 41 641/81 Bawany Sugar Mills Ltd. District Dadu. Council, " ,, 647/81 National Detergents Ltd. District Dadu. Council, 44 " 692/86 Indus Steel Pipes Ltd. Do " CI 921/81 Taj Muhammad. District Badin. Council, " it 1136/81 Sind Particle Board Mills Limited. District Dadu. Council, '` CI 48/82 Cosmopolitan Deve- lopment Company Ltd. Do IC 44 272/82 Molasses Trading & Export Co. Ltd. District Badin. Council, " 44 286/82 Surriya Textile Mills Ltd. District Dadu. Council, " .. 287/82 Amin Textile Mills Ltd. Do " 318/82 Dewan Textile Mills Ltd. Do {{TABLE}}
2. Before stating the relevant facts, of these petitions, we have considered appropriate to refer here to those provisions of the Sind Local Government Ordinance, 1979 (hereinafter referred to as "The 1979 Ordinance") and certain Rules, interpretation or reference of which provisions is involved in our decision on these petitions : Section 3 (6).-"bye-laws" means bye-laws made under this Ordinance Section 3 (15).-"Council" means a corporation, municipal committee, town committee district council, taluka council or union council, as the case may be.
Section 3 (49).-"Prescribed" means rules made under this Ordinance. Sectton 3 (59).-"rules" means rules made under this Ordinance.
Section 3 (70)-"tax" include any toll, rate, cess, fee or other impost leviable under this Ordinance.
Section 4-A council constituted under this Ordinance for any local area shall, unless Government by notification, specifies otherwise, be the successor of the local council or local councils for that area existing immediately before the coming into force of this Ordinance.
Section 60 -Subject to subsection (2) a council may with the previous sanction of Government levy, in the prescribed manner all or any of the taxes, rates, tolls and fees mentioned in Schedule V : ' Provided that where a tax, rate or toll which is levied as a cess, tax or surcharge by Government such tax, rate or toll shall not be more than that levied by Government.
(2) No taluka council shall have the power to levy any tax, toll or fee and such council shall be financed in such manner as may be prescribed.
(3) All taxes, rates, tolls and fees levied by a council shall be notified in the prescribed manner and shall, unless otherwise directed by Government, be subject to previous publication.
(4) Where a proposal for the levy or modification of a tax, rate, toll or fee is sanctioned (the order sanctioning such levy or modification) shall specify the date on and from which such tax, rate, or fee or the modification shall come into force.
(It may be observed hence that the words in bracket in section 60 (4) were substituted and be dee med to have always been so substituted by section 4 of Sind Ordinance 15 of 1981, made on 23-9- 1981 for the word `Government').
Section 61.-Government may frame model tax schedules, and where such schedules have been framed, a council shall be guided by them in levying a tax, rate toll or fee.
Section 62 (1). -Government may direct any council- (a)to levy any tax, rate, toll or fee which the council is competent to levy under this Ordinance; (b)to increase or reduce any rate, tax, toll or fee to such extent as may be specified ;
(c) to suspend or abolish the levy of any tax, rate, toll or fee ;
(2) If the directior is issued under subsection (1), the Chief Executive of the Council shall, notwithstanding anything contained in this Ordinance, give effect to it by issuing a notification in terms of the direction not later than the date, if any, specified by Government in this behalf.
(Subsection (2) of section 62 as reproduced above was substituted by section 2 of Sind Ordinance V of 1981 for the original subsection (2) which read as follows ' If a direction issued under subsection (1) is not complied with, within the specified time, if any, Government may make an order giving effect to the direction".)
Section 64 (1). -Unless otherwise provided all taxes rates, tolls and fees levied under this Ordinance shall be collected in the prescribed manner by the persons authorized for such collection : ' Provided that where any tax, rate, or toll levied by a council is also levied by Government such tax, rate or toll shall be collected with Government Tax, and the proceeds thereof be credited to the local fund of the council.
(2) All arrears of taxes, rates, tolls and fees and other moneys claimable by a council under this Ordinance shall be recoverable as arrears of land revenue through Government agency or by the council authorized by Government for such recovery through such servants or class of servants of the council as may be prescribed.
Section 67-(l) All taxes, rates, tolls, fees, and other charges levied by a council shall be imposed, assessed, leased, compounded, administered and regulated in such manner and within such period as may be prescribed.
(2) Rules framed under the section may, among other matters provide for the obligations of the tax-payer and the duties and powers of the officials and other agencies responsible for the assessm ent and collection of taxes.
Section 103-(2) Government may make rules to carry out the purposes of this Ordinance.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in Schedule VII and all matters incidental, consequential and supplemental thereto.
Section 104. -(1) A council may, and if required by Government shall, make bye-laws not inconsistent with the rules, to carry out the purposes of this Ordinance.
(2) In particular and without prejudice to the generality of the foregoing powers such bye-laws may provide for all or any of the matters enumerated in Schedule VIII and all matters incidental, consequential and supplemental thereto.
(3) All bye-laws shall be made subject to the condition of previous publication.
(4) All bye-laws shall be made subject to the sanction of Government and Government may sanction the same with or without modification.
(5) If the council fails to Make any bye-laws when required by Government to do so, Government may frame the bye-laws and publish them in the official Gazette and the bye-laws so published shall be deemed to be bye-laws made by the council.
(6) Government may frame model bye-laws and the councils may adopt them or be guided by them.
(7) All bye-laws shall be published in such manrer as in the opinion of the authority making them is best suited for information of the residents of the local area concerned.
Section 105-(1) All rules and bye-laws made under this Ordinance shall be deemed to form part of this Ordinance, (2) Copies of rules and bye-laws pertaining to a council shall be kept available at the office of the council for inspection and sale.
Section 106. -(1) Government may, by notification, delegate any of its powers under this Ordinance or the rules to (a council or to any officer under Government or the council as the case may be).
(2) A council may by notification delegate any of its powers to the Mayor or as the case may be, Chairman, or a committee or sub-committee or any officer serving under the council.
(The words in bracket in subsection (1) of section 106 were substituted by Sind Ordinance 4 of 1980 published on 4-2-1980 for the words "any officer subordinate to it.").
Section 120. -(1) The Sind Local Government Ordinance, 1972, is hereby repealed.
(2) Notwithstanding the repeal of the enactment under subsection (1)- (a)everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding commmenced, person appointed or authorised, jurisdiction or power conferred, licence, certificate or permit granted (rules or bye-laws made) and order issued under any of the provisions of the repealed enactment shall, if not inconsistent with the provisions of this Ordinance, continue in force and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced, appointed, authorised, conferred, granted made or issued under this Ordinance ; (b)all union councils, district councils, town committees, municipal committees and corporations existing immediately before the coming into force of this Ordinance, shall be deemed to be the councils and the officials or Administrators performing the duties and functions of such councils shall continue to perform such duties and functions until newly elected councils assume office in accordance with the provisions of this Ordinance ; provided that Government may, in the meantime remove or transfer any such official or Administrator and appoint any other person to be Aministrator or official of such council or make any other arrangement for running of the affairs of the Council.
(The words in bracket in subsection 2(a) of section 120 were substituted by Sind Ordinance 4 of 1980 for the words "rule made").
' Heading of Part H of Schedule V to the 1979 Ordinance is as follows :- ' Taxes, rates, tolls and fees which may be levied by a Corporation including the Metropolitan Corporation, Municipal Committees and Town Committees."
' Items Nos. 3, 4, 5 and 25 of Part II of Schedule V read as follows :- ``(3) Tax on the import of goods for consumption, use or sale in the local area.
(4)Tax on the export of goods from the local area.
(5) Tolls on road and bridges and ferries.
25. Any other tax which is levied by the Government.
' Heading of Part III of Schedule V to the 1979 Ordinance is as follows :- "Taxes. Rates, tolls and fees to be levied by District Councils and Union Councils."
' Items Nos. 5, 6, 13 and 27 of Part III of Schedule V read as follows :"(5) Tax on the import of goods for consumption use or sale in the local area (by union council only).
(6) Toll on the export of goods to be called Rawangi Mahsool by District Councils only, and may be shared by the District Council with such councils of the District and is such ratio as and when directed by Government.
(13) Tolls on roads, bridges and ferries.
(27) Any other tax which is levied by the Government."
(It may be observed here that originally item No, 6 read as follows:-
(6) Tax on export of goods from the local area.
' By Sind Ordinance 15 of 1981 this orininal items No, 6 was substituted by the entry reproduced earlier).
' Through Notification No, OSD/(E)/LG/125/80 published in the Sind Government Gazette Part IV-A of 18-6-1980, the following Rules were made by the Sind Government in exercise of the powers conferred by section 103 of the 1979 Ordinance :- The Sind Councils (Imposition of Taxes) Rules, 1979: 1.-(1) These rules may be called the Sind Councils (Imposition of Taxes) Rules, 1979.
(2) They shall come into force at once.
2.(a) "Inhabitant" means any persons ordinarily residing or carrying on business of owning or occupying immoveable property in the local area, and includes a persons who is likely to be affected a taxation proposal ;
(b) "Ordinance" means the Sind Local Government Ordinance, 1979 ;
(c) "report" means the report of the sub-committee prepared under sub-rule (4) of rule 5 ;
(d) "Section" means a section of the Ordinance ;
(e) "sub-committee,' means a sub-committee appointed under sub-rule (2) of rule 5 ; f) "taxation proposal" means a proposal framed by a council for the imposition, abolition or suspension of tax or an increase or reduction in the rate of tax.
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 : Provided that no taxation proposal shall be formulated in respect of tax before the expiry of six months since its imposition, reduction, suspension or abolition.
4.-(1) Every taxation proposal prepared under rule 3 shall be published alongwith a notice in 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 in income is proposed to be made up ; ( f ) justification of the taxation proposal ; and
(g) any other particulars considered necessary for 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 bearing of objections and suggestions received under this rule;
(c) the date by which the final taxation proposal shall be sent to Government for sanction.
5.-(l) All objections and suggestion 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 of 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 ojbections and suggestions, draw up and furnish detailed report to the Council.
(5) The report under 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 recommendations of the sub-committee with regard to the taxation proposal indicating whether the recommendations are, as nearly as possible, in 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 resolution-
(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.
(7) Where Government has sanctioned the taxation proposal the order of Government shall be notified in the official Gazette and such order shall come into force on and from such date as may be specified in the notification.
3. In these petitions, as observed earlier, levy and recovery of octroi and export tax by the concerned councils has been challenged. In a few cases, there already existed tax schedules on the basis of which taxes were being recovered and when revised schedules were notified, such revised Schedules came to be challenged. However, in most of these petitions taxes which are impugned were imposed by councils for the first time. We have heard M/s. Khalid Anwar, Rashid A.
Akhund, J. H. Rahimtoola, Ghiasuddin Baloch, Sabihuddin Ahmed, Maroof Ali Khan, Arif Hussain, Muhammad All Shaikh, Sher Afgan, Abdul Hamid Khan. Zafar Alam Khan, S. Nasiruddin and Iqbal Haider for the petitioners. On behalf of the respondents the main arguments were addressed by Mr. Rasul Baksh Unar and Mr. Saeed A. Shaikh, the learned Advocate-General of Sind, We have also heard M/s. Khuda Bux Omrani, Imam Ali Kazi, Hatif Khddai Ansari, Shahenshah Hussain and S. S. Hamid for the respondents. We may first refer to the two main contentions raised on behalf of the petitioners. First such contention was that levy of tax by a council under section 60(1) of 1979 Ordinance is subject to previous sanction of the Government, levy of tax by the various councils is bad. It may be mentioned here that it has been an admitted position that the Government did not accord any sanction but the case of the respondents is that under section 106 of the 1979 Ordinance, Government is invested with the power to delegate through notification any of its powers under this Ordinance to any council and that by Notification No, OSD/Elect/LG/DP-27/79, dated 3-6-1980, Government's power to sanction levy of taxes was delegated to all the councils.
We may here reproduce the Notification dated 3-6-1980 :- Notification ' Karachi : the 3rd June, 1980.
' No, OSD/Elect/LG/DP-27/79.-In exercise of the powers conferred by subsection (I) of section 106 of the Sind Local Government Ordinance, 1979, the Government of Sind are pieased to delegate its powers under the sections of the said Ordinance mentioned in column 1 of the table below to all the Councils in the manner and extent indicated in column 2 thereof :- {{TABLE}} Table Section No, and its description Extent and manner of delegation 1 2 60(1) The power to sanction Full powers ; provided that- levy of taxes. (i) it does not involve reduction in the existing rates ;
(ii) the abolition of an existing tax ;
(iii) prior approval of Government would be necessary where imposition of tax has bearing on export of agricultural inputs.
' Petitioners' contention has been that the power of sanction could not be delegated to the union council whose action was itself subject to sanction. The second main point that has been agitated in these petitions has been that the prescribed procedure has not been followed by the councils which renders the levy of taxes invalid. These two contentions are relevant for petitions where octroi tax is challenged as well as petitions where export tax has been challenged. We may also mention here that in respect of export tax cases, another major argument raised was that levy of export tax by the councils was unconstitutional being in violation of Article 151 of the 1973 Constitution.
4. We first take up for our consideration the contention relating to delegation of the power to sanction the taxes through the impugned Notification dated 3-6-1980. Mr. Khalid Anwar, appearing on behalf of the petitioners in several of these petitions advanced the following submission in this regard :-
(i) Sanction of the Government is mandatary under seetion 60 of the 1979 Ordinance ;
(ii) section 60 requires prior sanction and not ex post facto sanction ;
(iii) "sanction" presupposes a prior act which is then ratified by the sanctioning authority ;
(iv) "previous sanction" postulates two separate and distinct bodies :
(v) impugned Notification dated 3-6-1980 renders section 60(1) of the 1979 Ordinance nugatory ;
(vi) impugned Notification purports to alter the fundamental scheme of the 1979 Ordinance relating to levy of taxes by the councils ;
(vii) the 1979 Ordinance and the Rules made thereunder require examination by the Government of the taxation proposal made by every council and the blanket sanction in advance through the impugned Notification is not a sanction in the eye of law ;
(viii) "sanction" provision in section 60(1) is in the nature of a "Responsibility" of the Government and under law responsibilities conferred on a body cannot be delegated as has been unlawfully done by the Government through the impugned Notification.
' According to learned council, it is a case of "abdication of responsibilities" ;
(ix) impugned Notification delegates power to all councils and this according to learned council, was invalid. It was contended that under this Notification it has been made possible for one council to sanction the taxation proposal of any other council also which was not only absurd but contrary to the taxation scheme of the 1979 Ordinance.
' Counsel appearing for other petitioners adopted the above contentions of Mr. Khalid Anwar and then advanced additional arguments on the question of the vires of the impugned Notification dated 3-6-1980.
(x) Mr. Rashid Akhund submitted that the impugned Notification, to the extent it delegated the power of sanction to the councils, was invalid on account of being a case of excessive and impressive delegation ;
(xi) According to Mr. J. H. Rahimtoola section 106 came under Chapter XV of the 1979 Ordinance which relates to "Miscellaneous" provisions, and, therefore, power under section 107, a miscellaneous provision could not be exercised to override substantive provisions of section 60 ;
(xii) It was also contended by Mr. J. H. Rahimtoola that the power of sanction in section 60(1) is a legislative power and for delegation, such power requires specific provision of delegation and general provision of delegation cannot be resorted for the purpose of delegation of such a power. It was further submitted that even if the power under section 60(1) is an executive power, it being combined with a duty, such power could not be delegated.
(xiii) Mr. S. Nasiruddin argued that the power of previous sanction could not be delegated to the councils. It was contended that "sanction" required "satisfaction" of the sanctioning authority and "sanction" was not a mechanical act.
5. We now propose to consider the several contentions raised in para. 4 of this judgment by learned counsel for the petitioners on the question of the vires of the impugned Notification dated 3-6-1980. While considering these contentions we will no doubt refer to the submissions made on behalf of the respondents in support of the validity of the impugned Notification.
6. A plain reading of section 60(1) of the 1979 Ordinance shows that a council can levy the taxes mentioned in Schedule V to the 1979 Ordinance in the prescribed manner but subject to the previous sanction of the Government. It, therefore, follows that before any levy could be effected by any council, sanction of the Government must be accorded or obtained. It has not been the case of the respondents that without sanction, as required by section 60(1), a council could levy any taxes. We are, therefore, of the view that sanction as required by section 60(1) is mandatory and without such sanction no tax can be levied by any council. It is also apparent from the words employed by the Legislature in section 60(1) that this sanction of the Government must be given or obtained prior to the levy of the taxes by the councils. The words used are "previous sanction of the Government". The Legislature has, by employing these words, made its intention clear that the sanction has to be "previous sanction", that is, prior to the levy of taxes and not ex post facto sanction. The third submission of Mr. Khalid Anwar, learned counsel for the petitioner, was that the word "sanction" used in section 60(1) of the 1979 Ordinance presupposes a prior act, which is then ratified or confirmed or sanctioned by the sanctioning authority. We agree with this interpretation.
This interpretation finds support from the Sind Councils (Imposition of Taxes) Rules, 1979, in which the, procedure is prescribed regarding the different stages before a taxation proposal prepared by a council is transformed into a tax. Later in this judgment, we propose to deal in detail with the Rules of 1979, but at this stage suffice it is to observe that Rules 3, 4, 5 and 6 of these Rules prescribed the various acts to be performed by the council proposing to effect a levy and then Rules 6 and 7 relate to the submission of the final taxation proposal to the Government and the sanction of the taxation proposal by the Government.
7. The next submission on behalf of the petitioners that "previous sanction" in section 60(1) postulates two separate and distinct bodies is connected with submissions Nos. (v), (vi) and (vii) advanced by Mr. Khalid Anwar and referred in paragraph 4 of this judgment. On this point detailed arguments were addressed not only on behalf of the petitioners but in reply also by the learned Advocate-General, Mr. Rasool Bux Unar and other counsel, who appeared on behalf of the Respondents. On behalf of the petitioners it was contended that sanction under section 60(1) requires confirmation or ratification of the taxation proposals of the council and if this power of sanction of the Government was delegated to the council itself, it would not only render section 60(1) of the 1979 Ordinance nugatory but it would also alter the fundamental Scheme of, the 1979 Ordinance relating to levy of taxes by the councils. It was contended that if the acts of the council were subject to sanction by another body and if under section 106 of the 1979 Ordinance, this power of sanction was delegated to the council itself, the provision in section 60(1) regarding sanction would become redundant, as confirmation or ratification or sanction by a body of its own acts means nothing, as a body, which has taken a decision, is bound to confirm or sanction its own decision. It is in this context that it was argued on behalf of the petitioners that the power of sanction could not be delegated to the body whose own action was subject to sanction.
8. It was contended by Mr. Rasool Bux Unar, learned counsel for the Respondents, that there was no embargo in section 106 as regards the power of delegation and as such the power of sanction in section 60 could be delegated. It was contended by the learned Advocate-General that if the argument was that power of sanction of the Government under section 60(1) could not be delegated, the Court would be reading a limitation on the powers of delegation conferred on the Government under section 106 and as there was no such limitation on the powers of Government under section 106, this limitation or embargo could not be read into section 106. In our view the crucial point for determination in the instant cases is not whether the power of sanction could at all be delegated but whether such power could be delegated to the very councils whose actions or taxation proposals were subject to previous sanction under section 60(1).
' We pointed out to Mr. Rasool Bux Unar, learned counsel for the Respondents sections 12, 13, 53, 54, 55, 62, 78, 79, 80(2), 89, 91 and 103 of the 1979 Ordinance, and Mr. Rasool Bux Unar very frankly conceded that powers conferred by these sections of the 1979 Ordinance could not be delegated to the councils. Setion 12 confers power on the Government to divide a council into two or more councils or amalgamate two or more councils. Section 13 gives power to the Government to extend or alter the area of a council. Section 53 provides for the exercise of general supervision and control over the councils. Under section 54, the Government is empowered to give directions to any council. An Inspecting Officer or Inspection Team appointed by the Government is required to inspect the working of the councils at least once in a financial year under section 55. Section 62 provides for directions to councils with regard to levy of taxes. Constitution of the Sind Councils Unified Grades is provided by section 78. Section 79 caters for the establishment and maintenance of Pension, Benevolent and Provident Funds by the Government for the persons belonging to the Sind Council Unified Grades. Section 80(2) empowers the Government to give a direction to any council requiring the council to reduce ,the number of posts or remuneration for any post in the schedule of establishmrnt prepared by the council if in the opinion of the Government the number of posts or remuneration for any post is excessive. Section 89 deals with setting up of Divisional and District Co-ordination Committees. Section 91 makes provision for resolution of disputes between councils. Section 103 grants power to the Government to make rules to carry out the purposes of the 1979 Ordinance. It was admitted by the learned counsel that the power of supervision as control over the councils could not be delegated to these councils. It was further admitted that if the opinion of the Government was involved are required to be given, such power could not be delegated by the Government. It was, however, contended that in so far as the word "sanction" in section 60(1) was concerned neither this could be equated with the power of supervision or control over the councils nor did it require the opinion of the Government and as such the power of sanction could be delegated to the councils. It was further contended that sanction was an administrative act without any satisfaction on the part of the Government, although it was contended that sanction could not be treated as a mechanical act and if the power had not been delegated to the council and it was still vested in the Government, under section 60(1), the Government as sanctioning authority, could modify the taxation proposal and the 'modified proposal after sanction and on publication would become a levy.
9. The learned Advocate-General had argued that section 106 was an enacting provision, which enabled the Government to delegate any of its powers ; the Government was given the choice of the delegate ; sanction under section 60(1) of the Ordinance was an administrative act and could not be arbitrarily withheld by the Government and could also be delegated to a council. According to the learned Advocate-General the impugned notification dated 3-6-1980 was issued pursuant to section 106, which gives clear and unambiguous powers to the Government to delegate any of its powers under the 1979 Ordinance to any council also and that there is no limitation on the powers of the Government to delegate any of its powers under the 1979 Ordinance ; that what the petitioners were contending was that section 60(1) was an exception in so far as the powers of delegation under section 106 were concerned, whereas according to the learned Advocate- General this was not so as while enacting section 106, the Legislature was aware of section 60 but in spite of this no limitation was placed under section 106 on the powers of the Government in so far as the delegation was concerned. It was further contended that sanction under section 60(1) amounted to consent and was not akin to supervision or control of the sections of the councils.
Being a power of consent in the nature of an administrative act, it was contended that this power of consent or sanction could be delegated to the authority, whose sections required consent or sanction under section 60(1).
10. The bare argument that as no limitation is expressed in section 106(1) of the 1979 Ordinance, every power vested in the Government under the Ordinance can be delegated to the bodies and persons specified in section 106(1) has not impressed us. If it were so, even the powers conferred by sections 12, 13, 53, 54, 55, 62, 78, 79, 80(2), 89, 91 and 103 upon the Government could have been validly delegated to the councils. As observed earlier, Mr. Rasool Bakhsh Unar for the respondents has conceded that powers of the Government under the aforesaid sections cannot be delegated to the councils. We are also of the view that powers of the Government under the aforesaid sections of the 1979 Ordinance cannot be delegated in the councils in view of the nature of the said powers. Under the aforesaid sections, the powers of the Government relate to the exercise of control or supervision over or for giving directions to the councils. It is obvious that such powers of control or supervision over or direction to the councils cannot be delegated to the councils themselves. Now in section 106 there is no limitation expressed about the powers of delegation.
Nonetheless the legal position is that powers of the Government under sections 12, 13, 53, 54, 55, 62, 78, 79, 80(2), 89, 91 and 103 cannot be delegated to the councils although councils are mentioned in section 60(1) as bodies to whom powers of Government can be delegated. The legal position is so in view of the nature of powers mentioned in the aforesaid sections, as observed earlier.
11. The question whether the Government's power of sanction under section 60(1) of the 1979 Ordinance can at all be delegated to the councils cannot, therefore, be decided by reference to section 105 alone. What is pertinent is the nature of power conferred by the Legislature on the Government through section 60(1) and once an analysis of this power has been made, it can then be determined whether such power can be delegated to the councils. Section 60(1) of the 1979 Ordinance gives to the councils the power to levy taxes mentioned in Schedule V of the 1979 Ordinance but the power is subject to the previous sanction of the Government. We have already observed that there cannot be a levy without the sanction. An argument had been raised on behalf of the respondents that "sanction" here is an administrative act and cannot be arbitrarily withheld by the Government. Power to levy taxes granted by section 60(1) is a legislative power and being a fiscal provision it has to be strictly construed. As sanction is necessary, if in a given case the taxation proposal of a council is not sanctioned, there will not be a levy. There is no provision in the 1979 Ordinance that in case the sanction is not accorded within a certain period the taxation proposal of the council will become a tax rescoverable from the concerned citizens. Reference may be made to Articles 75 and 116 of the 1973 Constitution which provides for the assent- of bills by the President and the Governor. But in these Articles of the 1973 Constitution it is specifically provided that in case the assent is not given within seven days the bill presented for assent shall be deemed to be assented and shall become law. No such deeming provision about the sanction is to be found in the 1979 Ordinance about the levy of taxes. It may, therefore, again be observed that without sanction there cannot be a levy under section 60(1). This finds support from section 60(4) which lays down that the order of sanction shall specify the date from which the tax in question shall come into force.
12. By section 60(1) extensive powers have been conferred upon all the councils in the Province of Sind in connection with the levy of taxes. By incorporating the provision about the previous sanction of the Government, the Legislature, in its wisdom placed a check on these powers. The power of sanction in section 60(1) is a substantive power. It is not a mechanical act or a mere administrative act to be performed in routine without satisfaction of the sanctioning authority that the taxation proposal of the council has gone through the prescribed procedure and that the final taxation proposal otherwise also is in accord with the letter and spirit of the taxation provisions of the 1979 Ordinance. The sanctioning authority may not agree with the proposed taxation rates and in case it does not accord sanction tax cannot be levied. In our view "sanction" here is not a mechanical administrative act. It is a Legislative power to be exercised by the sanctioning authority after it is satisfied that the taxation proposal is in order and the council concerned has taken all steps in accordance with the prescribed procedure. The sanctioning authority may be of the opinion that the rates of certain taxes are high or certain items should not be subject to tax or that the rates proposed may being in more money than required by the council or that the taxes may put a heavy burden on the citizens or that the rates proposed do not compare favourably with rates proposed by other councils and for any one or more of such factors it may not accord sanction. We are further of the view that the sanctioning authority must, in the circumstances, be a separate body distinct from the council whose taxation proposal requires checking or sanction. According to us this is the apparent intent of the Legislature. Impugned Notification dated 3-6-1980 to the extent it purports to delegate the powers of sanction under section 60(1), therefore, renders nugetory the provision of "sanction" by a separate body of the taxation proposal of a council.
' Learned Advocate-General had contended that the power of sanction was equivalent to consent and, therefore, it could be delegated. Even if "sanction" is equated with "consent", our interpretation of section 60(1) that it postulates two separate bodies would not be different. If the taxation proposal were to require the consent of the sanctioning authority, even then the sanctioning authority has to be a body or person different from the council whose proposal requires consent of the sanctioning authority before the proposal becomes a tax.
' We may refer to another argument very vehemently canvassed by Mr. Rasool Bakhsh Unar on behalf of the respondents. It was contended that section 62 of the 1979 Ordinance gave ample powers to the Government to give direction to any council to levy, increase, reduce, suspender abolish any tax, and this section renders the sanctioning power under section 60(1) to the position of a mere administrative act capable of being delegated to the councils we do not agree. Firstly, we have already held that section 60(1) contemplates two separate bodies. Secondly, section 60(1) provides that the citizen shall not be subject to tax unless the sanction is there. Section 62 will come into play after the tax has been levied. Presence of section 62 does not dispense with the requirement of obtaining sanction from the sanctioning anthority. By delegating this power to the council, an attempt has been made to do away with the sanctioning provision in the Ordinance and this cannot be done by a notification of the Government. Only an amendment in the law could do this. Government has no power to amend section 60(1) through a notification.
' Impugned Notification in effect gives a blanket sanction in advance to all the taxation proposals of councils which is not permissible by the language of section 60(1). As observed by us earlier in this judgment, sanction in section 60(1) is not an administrative mechanical Act on the part of the sanctioning authority. It is an act performed by the sanctioning authority.After proper examination of the taxation proposal by a council. As held by us. It is a check on the powers of the councils in the field of taxation.
13. Another contention raised by Mr. Khalid Anwar was that "sanction" in section 60(1) is in the nature of a responsibility of the Government and under the law responsibilities cannot be delegated. According to learned counsel, the impugned Notification was a case of abdication of responsibilities. Frankly speaking we have not been impressed by this argument. Sanction is a power conferred by section 60(1) on the Government and this power, in our view can, be validly delegated, by virtue of section 106, to a body or person separate or distinct from the council whose taxation proposals are to be sanctioned. For instance this power can be delegated to an officer under the Government but cannot be delegated to an officer under council whose taxation proposals are to be sanctioned. Sanctioning authority must be a person or body independent of the concerned council. The intention of the Legislature, in our view, in an enacting section 60(1) was that the taxation proposal of a council must be examined or checked by an independent separate body or person before it becomes a tax recoverable from the citizens.
14. Arguments were addressed at great length by learned counsel appearing for the parties on the point of excessive and impermissive delegation of powers. A large number of reported judgments of the superior Courts were also cited in this context. We have already expressed our view on the question of delegation of the power of sanction to the councils which is premised on an interpretation of section 60(1) itself and the intention of the Legislature in enacting the provision about the previous sanction. In this view of the matter we do not consider it necessary to refer to the arguments relating to excessive and impermissive delegation and the case-law cited in respect thereto. The points raised by Messrs J. H. Rahimtoola and S. Nasiruddin have also been directly or indirectly dealt with by us.
15. The next main point that has arisen for our consideration in these petitioners is the non- compliance of the Rules by councils while taking steps for levying the taxes. Except for a few petitions where it was pleaded that previous rules applied, in all other petitions it was an admitted position that the applicable rules are the Sind Councils (Imposition of Taxes) Rules, 1979 which have been reproduced earlier in this Judgment. On a quick glance at the said Rules we find that rule 3 of these Rules provides initially for the formulation of the taxation proposal by a council ; Rule 4 requires such taxation proposal to be published in daily newspapers alongwith a notice for inviting objections and suggestions thereon ; what is to be specified in such notice is detailed in rule 4(2) which sub-rule further requires that the notice shall accompany a taxation programme specifying the information to be notified in such programme ; Rule 5 makes provision about the hearing of objections and suggestions to the preliminary taxation proposal by the Finance Committee of the council and for drawing up of a detailed report to the council ; under rule 6, the report of the Finance Committee is considered by a special meeting of the council which then may approve the report with or without modifications or it may drop the taxation proposal. In case the council approves the taxation the proposal to the Government alongwith a copy each of the report of the Finance Committee and the resolution approving it rule 7 says that where the Government sanctions a taxation proposal, the order of the Government shall be notified in the official Gazette and such order shall come into force on and from such date as may be specified in the notification.
16. The Sind Councils (Imposition of Taxes) Rules, 1979 have been made by the Government of Sind in exercise of the powers conferred on the Government by section 103 of the 1979 Ordinance.
Section 103(1) gives power to the Government to make rules to carry out the purposes of the Ordinance. Section 103(2) specifically refers to matters enumerated in Schedule VII of the 1979 Ordinance. Items Nos. 19, 20 and 23 of Schedule VII are as follows :- "12. Regulation of the assessment and collection of the local cess.
20. Regulation of the assessm ent, collection and administration of taxes, rates, tolls and fees, and all matters relating thereto.
23. Any other matter required under any of the provisions of this Ordinance to be prescribed."
Now section 60(1) provides for levy of the taxes in the prescribed manner. "Prescribed" is defined in section 3(49) to mean prescribed by rules and rules mean rules made under the 1979 Ordinance (section 3(59)). Rule making power is vested in the Government and not to the councils by section
103. Councils can only make by laws under section 104. For carrying out the purposes of the 1979 Ordinance, Specifically under section 60 thereof, the Government made the aforesaid Sind Councils (Imposition of Taxes) Rules, 1979. In the process of levying the taxes, therefore, the councils are, by law, required to take the steps and comply with the procedure and requirements of the rules made in this behalf. No argument was raised that the aforesaid Rules of 1979 are ultra vices of the 1979 Ordinance. It can be taken as an admitted position that these 1979 Rules have been made to carry out the purposes of the 1979 Ordinance as regards the levy of taxes by the councils and we are also of this view. Section 60 of the 1979 Ordinance and the 1979 Rules are fiscal provisions and it is a settled principle of law that fiscal provisions are to be strictly construed. If citizens are to be subjected to a tax, then the general principle of law is that all the prescribed formalities required to be fulfilled must be fulfilled and in case there is a default or failure in complying with the legal formalities, the benefit must got to the citizens.
17. An argument had been raised on behalf of the respondents that the 1979 Rules are directory in nature. In any case, it was contended that even if the said Rules are mandatory, substantial compliance thereof would be sufficient and failure to take each and every step as required by the rules would not render the tax invalid. We have already observed that these are fiscal provisions intended to burden the citizen with taxes, and, therefore, these are to be strictly construed.
Nevertheless the object and purpose of making these Rules of 1979 may be considered. As observed earlier, Rule 4 of the 1979 Rules requires the publication in daily newspapers of the taxation proposal alongwith a notice specifying the various informations and matters detailed in rule 4(2)(i) together with a taxation programme giving the particulars specified in rule 4(2)(ii). The main purpose and object of this rule is to bring the taxation proposal and other particulars and informations to the notice of the citizens who are likely to be burdened with the proposed taxes so that they could file objections and/or make suggestions about the proposed taxes. Rule 5 refers to filing of objections and suggestions and hearing of the same in public by the Finance Committee of the council. If the taxation proposal and the notice are not published, citizens likely to be affected will not be in a position to determine whether the proposed taxes will hit them and whether they would want to file objection or make suggestions. Without making the people aware of the taxation proposal and other matters, provision of hearing by rule 5 becomes ineffective. An excellent and democratic procedure based on principles of natural justice has been prescribed in rules 4 and 5 for finalization of the taxation proposal and in our view these and other Rules of 1979 have been made for carrying out the purposes of the 1979 Ordinance relating to taxation by councils. Rules 4 and 5 are additional checks on the arbitrary exercise of powers by the councils in the field of taxation. 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 noncompliance 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.
18. The third question of considerable importance that has been raised in some of these petitions is the constitutionality of the export tax leviedi D by, certain councils. Mr. Sabihuddin Ahmad, learned counsel for the y petitioner in Constitutional Petition No, D-48/82, contended that export tax levied by some councils on the export simpliciter of goods from the limits of these councils tantamounts to a restraint on the free movement of goods and as such it is violative of Article 151 of the 1973 Constitution, which article forms part of the Provisional Constitution Order, 1981. Article 151 of the 1973 Constitution is reproduced here :- "151.-(1) Subject to clause (2), trade, commerce and intercourse throughout Pakistan shall be free.
(2) Parliament may be law impose such restrictions on the freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan as may be required in the public interest.
(3) A Provincial Assembly or a Provincial Government shall not have power to -
(a) make any law, or take any executive action, prohibiting or restricting the entry into, or the export from, the Province of goods of any class or description, or
(b) impose a tax which, as between goods manufactured or produced in the Province and similar goods not so manufactured or produced, discriminates in favour of the former goods or which, in the case of goods manufactured or produced outside Province discriminates between goods manufactured or produced in any area in Pakistan and similar goods manufactured or produced in any other area in Pakistan.
(4) An Act of a Provincial Assembly which imposes any reasonable restriction in the interest of public health, public order or morality, or for the purpose of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of an essential commodity shall not, if it was made with the consent of the President be invalid."
' We agree with Mr. Sabihuddin that the export tax levied by the councils is in effect a tax on the sheer movement of goods. Such tax is recovered by the council on the goods being taken out of the limits of the council. Here the distinction in the nature of export tax and octroi may be highlighted.
' Octroi tax is not a tax on the sheer movement of goods as octroi is levied and recovered by union councils on import of goods for consumption use or sale in the local area as would be evident from item No, 5 of Part III of Schedule V of the 1979 Ordinance. If the goods are not imported for consumption, use or sale in the local area, such goods are not liable to octroi tax. Nature of export tax is, however, different. Original entry No, 6 of Part III of Schedule V of the 1979 Ordinance read as follows :- "6. Tax on the export of goods from the local area."
Export tax is, therefore, patently a tax on the mere movement of goods. It may be noted here that by section 6 of Sind Ordinance XV of 1981, original entry No, 6 was substituted by the following :- "6. Toll on the export of goods to be called Rawangi Mahsool by District . Councils only, and may be shared by the District Council with such councils of the District and in such ratio as and when directed by Government."
' Although original entry No, 6 has been substituted by the new entry, the nature of the tax remains the same and that is that it is a tax on export of goods.
19. We may now consider the contention that export tax is violative of Article 151 of the 1973 Constitution and has, therefore, to be struck down. Mr. Sabihuddin referred to the following judgments of the Indian Supreme Court in support of his contention :-
(i) AIR 1961 SC 232.
(ii) AIR 1962 SC 1406.
(iii) AIR 1969 SC 147.
' On the other hand Mr. Khuda Bux Omrani, learned counsel who appeared for the respondents in six petitions relating to export tax, in reply, relied upon the following judgments :-
(iv) PLD 1978 Lah.
387.
(v) 1971 SCMR 237.
(vi) 1980 CLC 704.
(vii) PLD 1982 Lah.
109.
' In none of the aforesaid judgments is there any discussion on the constitutional validity of export tax with reference to Article 151(1) of the 1973 Constitution or identical provision in the Indian Constitution. It is perhaps for the first time that this contention has been raised with reference to Article 151 of the 1973 Constitution. According to Mr. Sabihuddin, Article 151(1) makes trade, commerce and intercourse throughout Pakistan free and only Parliament, and not the Provincial Legislature, can impose restrictions in accordance with Article 151(2) and the Provincial Legislature has power to impose certain restrictions under Article 151(4) but that can be done only with the consent of the President. Mr. Saeed A. Shaikh, learned Advocate-General Sind, on the other hand contended that a reading of the entire Article 151 as also its marginal heading shows that this Article relates to restriction on inter-provincial trade that is trade between provinces and not on intra-provincial trade that is trade within a province. In our view the learned Advocate-General has correctly interpreted Article 151 as a provision dealing with interprovincial trade. Article 151(3) imposes a clear restriction on the Provincial Legislature to make any law or take any executive action or impose a tax on inter-provincial trade. This obviously indicates that as regards intra- provincial trade, provincial Legislature is competent to impose restrictions or taxes. Article 151(1) read with the other three sub-articles of Article 151 leads to the conclusion that Article 151(1) does not restrict a provincial Legislature to impose restrictions or taxes on movement of goods within the province. Export tax cannot be struck down on the plea that it violates Article 151 of the 1973 Constitution as in our view it is not violative of the said constitutional provision.
20. We may record here our decision on the three major questions of law raised in these Constitutional petitions :-
(a) The Government under section 106 of the 1979 Ordinance could not delegate its power of sanction conferred by section 60(1) of the said Ordinance to the councils. Impugned Notification dated 3-6-1980 to that extent is invalid and as a consequence all notifications issue by the councils, pursuant to the powers given by the impugned Notification, are also invalid ;
(b) The Sind Councils (Imposition of Taxes) Rules, 1919 are mandatory in nature and a violation or non-compliance of these Rules renders) the levy of tax invalid ;
(c) Export Tax or Rawangi Mahsool is not violative of Article 151 of the 1973 Constitution.
21. There being no valid sanction as required by section 60(1) of the 1979 Ordinance and for non- compliance of rules 4 and 5 of the Sind Councils (Imposition of Taxes) Rules, 1979, we declare the taxes imposed by the councils and impugned in the following constitutional petitions to be without lawful authority and of no legal effect :- ' Constitutional Petitions Nos. 125/81, 1091/80, 44/81, 1196/80, 422/81,467/81, 470/81, 490/81, 593/81, 603/81, 646/81, 663/81, 745/81, 1011/81, 1051/81, 1137/81, 1156/81, 453/81, 279/82 and 319/82.
' The taxes imposed by the councils and impugned in the following constitutional petitions are declared to be without lawful authority and of no legal effect as there was no valid sanction as required by section 60(1) of the 1979 Ordinance :- ' Constitutional Petitions Nos. 1637/80, 144/81, 145/81, 146/81, 147/81, 148/81, 149/81, 150/81, 151/81, 152/81, 153/81, 165/81, 594/81,641/81, 647/81, 692/81, 921/81, 1136/81, 48/82, 272/82, 286/82, 287182 and 318/82.
' In these petitions, according to our view, there has been no violation of the Sind Councils (Imposition of Taxes) Rules, 1979.
22. There are two other petitions namely Petitions Nos. 1271/80 and 1716/80, where the facts and points of law involved are different. Petition No, 1271/80 impugnes the Notification No, 11-DLG/79 dated 15-7-1979 of the Commissioner, Hyderabad, published about 10 months later in the Sind Government Gazette Part 1-A of 10-5-1980 sanctioning the revision of the previous Octroi Schedule of the Town Committee, Math, District Badin. It is an admitted position that the revised schedule could not have come into effect before its publication in the Gazette. Now a look at the impugned notification of Commissioner, Hyderabad Division shows that it was issued in exercise of powers vested in him under section 71 of the Sind Loct-41 (government Ordinance, 1972 read with rule 7 of the West Pakistan Local Councils (Imposition of Taxes) Rules, 1961 and powers delegated by the Government to the Commissioners through Government's notification dated 5-1-1977. Although the impugned Notification shows that it was made on 15-7-1979, remained an incomplete document as it was not published in the Sind Gazette. On 25-7-1979, the 1979 Ordinance was enacted and under this Ordinance, the Commissioners no longer remained the sanctioning authorities. Under section 60(1) of the 1979 Ordinance, the Government has to accord sanction and we 'were not shown any notification delegating the powers to the Commissioners. As the Notification dated 15- 7-1979 of Commissioner, Hyderabad Division bad not come into effect before the enactment of the 1979 Ordinance,' it became ineffective on 25-7-1979 and did not stand revived by section 120 of the 1979 Ordinance. Further the said Notification makes a reference to the exercise of powers under section 71 of the 1972 Ordinance. This 1972 Ordinance stood repealed by the 1979 Ordinance and after 25-7-1979 powers could not be exercised under the repealed 1972 Ordinance. As a result we declare the impugned Notification dated 15-7-1980 as published in the Sind Gazette of 10-5-1980 to be without lawful authority and of no legal effect and taxes cannot be recovered under the said Notification.
23. Petition No, D-1714/80 challenges the imposition of Octroi tax by Union Council Bau Khan Pathan, Taluka Hala, District Hyderabad, through Notification of this Council No, UC-BK/24(1)/80 published in Sind Government Gazette Part 1-A of 29-7-1982. By 29-7-1980, the 1979 Ordinance had already been enacted and the Sind Councils (Imposition of Taxes) Rules, 1979 made. It is an admitted position that the procedure prescribed and steps required to be taken by the 1979 Rules have not been followed/taken. In our view as this Octroi tax was sought to be levied after the making of the 1979 Rules, compliance thereof was mandatory. Impugned notification dated 29-7-1980 of Union Council Bau Khan is accordingly declared to be without lawful authority and of no legal effect and taxes cannot be recovered under this notification.
24. The parties to these petitions will bear their own costs. Interim relief had been granted to the petitioners in most of these petitions on their furnishing bank guarantees on depositing amounts with the Nazir of this Court. To enable the respondents to seek relief from the Supreme Court of Pakistan, in case they choose to do so, it is ordered that the Bank guarantees furnished by the petitioners shall remain in force for a period of six weeks from the date of this judgment whereafter the same shall stand discharged and cancelled. Similarly where amounts have been deposited, the same can be withdrawn by the concerned petitioners after expiry of six weeks from today. This restraint is being imposed to avoid complications in case stay of this judgment is granted by the Supreme Court of Pakistan.