' As a result of public auction, the right of collection of octroi income of Municipal Committee, Jhelum, was leased in favour of the petitioner, viz. Messrs Khayal Mohammad & Sons, against the highest bid of Rs, 62,26,000 for the period from 1-7-1984 to 30-6-1985. Thus, since 1-7-1984, the petitioner has been collecting the octroi income including the octroi duty levied on goods imported for use, consumption and sale within the Municipal limits of Jhelum Municipality.
2. Respondent No, 4, i,e, Pakistan Tobacco Company Limited, Jhelum, is the manufacturer of cigarettes of different brands in its factory located within the municipal limits of Jhelum. The said respondent imports into the municipal limits of Jhelum, through trucks and railway wagons, different items, such as tobacco, cigarette paper, liquids, chemicals etc. For consumption and use in the course of its business.
3. It is alleged that after assuming the charge of collection of octroi, the petitioner wrote a letter, dated 1-7-1984 (Annex. A) to respondent No, 4 informing the latter that in future the octroi amount in respect of goods imported into the Municipal limits of Jhelum by the said Company would be collected at the time of import of goods at the relevant octroi post and that the previous system in vogue of paying the octroi charges through cheques had been discontinued. The said respondent, however, expressed ignorance about the petitioner's right to collect the payment of octroi through a belated letter, dated 11-7-1984 (Annex. B). Subsequently some correspondence in this behalf was exchanged between the petitioner and respondent No,
4. Even a representative of the petitioner allegedly visited the factory of Pakistan Tobacco Company. Respondent No, 4, however, neither paid the octroi due from the said respondent to the petitioner in respect of goods imported into the Municipal limits of Jhelum by respondent No, 4 nor the goods thus imported were got inspected for assessm ent of octroi at the relevant octroi post. The petitioner, therefore, approached the Chief Officer/Taxation Officer, Municipal Committee, Jhelum, i,e, respondent No 3, who, after necessary enquiry through the Octroi Superintendent, Jhelum, vide order, dated 11-11-1984 (Annex. H) created the following demand against respondent No, 4 :- Actual Octroi = Rs, 1,84,514.08 10 times composition fee for non-payment = Rs, 18,45,140.80 Total Rs, 20,29,654.88 Consequently, the Chief Officer/Taxation Officer, Municipal Committee, Jhelum, issued demand notice (Annex J) on 27-11-1984 to respondent No, 4, requiring him to pay Rs, 20,29,656.88 (including Rs, 2 as cost of notice).
4. Feeling aggrieved, respondent No, 4 preferred an appeal (Annex. K) under section 216 of the Municipal Committees Octroi Rules, 1964, before the Chairman, Municipal Committee, Jhelum, impugning the aforesaid order and demand notice passed and issued by the Chief Officer/Taxation Officer, Jhelum.
5. Instead of respondent No, 1 viz. Raja Muhammad Afzal Khan, Chairman, Municipal Committee, Jhelum, the appeal was heard and disposed of by Chaudhary Muhammad Boota, a member of the Municipal Committee, Jhelum, who, of course, in the meantime, had been elected as Vice- Chairman of the said Municipal Committee, vide his order, dated 17-1-1985 (Annex. M) whereby the appeal was accepted and the demand notice issued by the Chief Officer/Taxation Officer was cancelled and respondent No, 4 was directed to make up-to-date payment of actual octroi duty to the Octroi Lessee Messrs Khayal Muhammad and Sons, along with late fee amounting to Rs, 15,000 only.
6. It is noteworthy that vide order, dated 1-12-1984 (Annex. L), Raja Muhammad Afzal Khan, Chairman, Municipal Committee, Jhelum, delegated all the powers of the office of Chairman to Chaudhary Muhammad Boota aforesaid Councillor under section 170(3) of the Punjab Local Government Ordinance, 1979, read with notification No, SO(V)-5-8/ 81, dated 20-4-1982, till further orders. It was specified in the order delegating powers to Chaudhry Muhammad Boota Councilor that as Raja Muhammad Afzal Khan was proceeding abroad and was hence unable to perform his official duties, therefore, in exercise of powers vested in him under rule 9 of the Punjab Local Councils (Conduct of Business) Rules, 1980, it was felt expedient to delegate powers to any councillor as there was no Vice-Chairman of the Municipal Committee at that time.
7. It is a common ground between the parties that Raja Muhammad Afzal Khan, Chairman, Municipal Committee, Jhelum, had returned from abroad on 24-12-1984, while the order accepting the appeal was passed by Chaudhry Muhammad Boota Councillor/Vice-Chairman on 17-1-1985.
8.The petitioner has assailed through the instant constitutional petition the aforesaid order, dated 17-1-1985 passed by Chaudhry Muhammad Boota Councillor/Vice-Chairman, in exercise of his delegated powers of Chairman, Municipal Committee, Jhelum, whereby he has set aside the order, dated 11-11-1984, cancelled the demand notice, dated 27-11-1984, passed and issued by the Chief Officer/Taxation Officer, Municipal Committee, Jhelum, and has accepted the appeal filed by respondent No, 4 under section 216 of the Municipal Committee, Octroi Rules, 1964.
9. The validity of the impugned order has been challenged mainly on the following grounds :-
(i) that no appeal against the order of the Taxation Officer was legally competent inasmuch as in case of the Municipal Committees where the right to collect octroi is leased, rule 216 of Chapter XXVIII of the Municipal Committees Octroi Rules, 1964, providing appeals against the assessment, is not applicable by virtue of the provisions of rule 226 (d)(i) of Chapter XXX (ibid) ;
(ii) that Chaudhry Muhammad Boota Councillor/Vice-Chairman was not competent to entertain and dispose of the appeal of respondent No, 4, culminating into the impugned order, because power to hear appeals could not be delegated to him by the Chairman and even such delegation had come to an end on the return of the Chairman himself from abroad ; and
(iii) that on merits also, the impugned order was not sustainable as respondent No, 4 had deliberately and persistently evaded the payment of octroi charges for a full period of four months from 1-7-1984 to 27-11-1984 ; even by now the legal liability of the said respondent remains undischarged.
10. Respondent No, 4, while contesting the under consideration Writ Petition, has urged in its parawise reply that appeal against the order, dated 11-11-1984, passed by the Chief Officer/Taxation Officer, was legally competent and within the jurisdiction of the Chairman, Municipal Committee, Jhelum, and that Chaudhry Muhammad Boota Councillor/Vice-Chairman, in exercise of his delegated powers, could lawfully pass the impugned order. It has also been urged by the said respondent that there had not been any intention on the part of respondent No, 4 to evade octroi charges; respondent No, 4 admitted the liability to pay octroi from the very inception ; the practice of payment of octroi through cheques on a periodical basis had been in existence since long and the usage has thus attained the force of law.
11. Regarding the first contention of the petitioner that no appeal against the order of the Taxation Officer was competent under rule 216 o the Municipal Committees Octroi Rules, 1964, by virtue of the provisions of rule 226 ibid, the relevant provisions have been noticed and considered. Chapter XXVIII of the Municipal Committee Octroi Rules, 1964, deals with appeals. It is provided in rule 216 of the said Chapter that "notwithstanding anything to the contrary contained in the West Pakistan Municipal Committees (Appeals) Rules, 1960, appeals against the assessments made and orders issued under these rules shall lie as specified in Appendix G." As per. Appendix 'G' to these rules, in case of an order regarding assessm ent made by the Taxation Officer, appeal lies to the Chairman.
But, it is noteworthy that Chapter XXX of the Municipal Committees Octroi Rules, 1964, deals with cases of lease of octroi and it has been provided in rule 226(d)(i) that in respect of a municipality, where the collection of octroi is leased, the rules contained in Chapter III (except rule 13) Chapter XIX (except rules 146 and 147), Chapter XX, Chapter XXI (except rule 164, 166 and 169), Chapter XXII, Chapter XXVI and Chapter XXVIII (except rules 218 and 219) shall not apply. Thus, it is evident that wher the collection of octroi in a municipality is leased, rule 216 of Chapter XXVIII shall not apply. In case of Jhelum Municipality, the octroi has been leased in favour of the petitioner and, therefore, rule 216, dealing' with appeals has no application in the present case.
12. It is true that the Municipal Committees Octroi Rules, 1964, have been framed in exercise of the powers conferred by sections 35, 37, 38, 39, 41 and 121 of the Municipal Administration Ordinance, 1960, read with items 13, 14, 23 and 24 of the Fourth Schedule thereto. The Municipal Administration Ordinance, 1960, was repealed by the Punjab Local Government Act, 1975 (Act XXXIV of 1975), but the saving clause of the repealing Act saved the rules framed under the Municipal Administration Ordinance, 1960, so far as they were not inconsistent with the provisions of the said Act. Under section 182 of the Punjab Local Government Ordinance, 1979 (Punjab Ordinance VI of 1979), which holds the field at the moment, the Punjab Local Government Act, 1975, was repealed. It has been provided in subsection (2) of section 182 ibid : "notwithstanding the repeal of the Punjab Local Government Act, 1975, any appointments, rules, regulations or bye-laws made or saved, notification, order or notice issued, tax imposed or assessed, scheme prepared or executed contract entered into, suit instituted, rights acquired, claims made, legal or administrative proceedings or action taken under the said Act or under such enactments as were repealed by the said Act, shall, so far as it or they are not inconsistent with the provisions of the Ordinance, be deemed to have been respectively made, saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired, made or taken under the Ordinance." Thus, there can be hardly any doubt that the Municipal Committees Octroi Rules, 1964, which were not inconsistent with the provisions of the Punjab Local Government Ordinance, 1979, are to be deemed to have been made under the said Ordinance.
13. It has, however, been argued on behalf of the contesting respondent (respondent No, 4) that General Appeal Rules have since been made by the Governor of the Punjab in exercise of the powers conferred on him by sections 166 and 167 of the Punjab Local Government Ordinance, 1979, which are called as the "Punjab Local Councils (Appeal) Rules, 1980" and that after coming into force of the said rules, the Municipal Committees Octroi Rules, 1964, including rule 226 thereof, have ceased to apply, to appeals even in octroi cases. This contention, to say the least about it, is without any substance. It has clearly been provided in rule 2 of the Punjab Local Councils (Appeal)
Rules, 1980, that an appeal from an order of the authority specified in column 1 of Schedule I annexed to these rules shall lie to the authority specified in column 2 thereof, except as otherwise provided in the Punjab Local Government Ordinance, 1979, or the rules framed thereunder. It has already been observed above that Municipal Committees Octroi Rules, 1964, are to be deemed to have been framed under the Punjab Local Government Ordinance, 1979. Since these rule have provided otherwise in, regard to appeals in octroi cases, therefore, the Punjab Local Councils (Appeal) Rules, 1980, shall have no application in case of appeals in octroi cases. Moreover, in rule 216 of Chapter XXVIII of the Municipal Committees Octroi Rules, 1964, dealing with appeals, it has been expressly provided that appeals against the assessments made and orders issued under these rules shall lie as specified in Appendix 'G', notwithstanding anything to the contrary contained in the West Pakistan Municipal Committees (Appeals) Rules, 1960.
' It has half-heartedly been argued by the learned counsel for the contesting respondent that in octroi cases, appeals were required to be dealt with in accordance with the provisions of rule 216 of the Municipal Committees Octroi Rules, 1964, in spite of any provision to the contrary contained in the West Pakistan Municipal Committees (Appeals) Rules, 1960, as no such exception has been made in regard to the Punjab Local Councils (Appeal) Rules, 1980, wnich have taken place of the Municipal Committees (Appeals) Rules, 1960. Learned counsel has, perhaps, not noticed the provisions of section 7 of the Punjab General Clause Act, 1956, which, inter alia, provide that where this Act or any other West Pakistan Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a. Different intention appears, be construed as references to the provision so re-enacted. The provisions to the same effect are also contained in section 8 of the Central General Clauses Act. 1897, in regard to Central enactments, regulations or instruments. In the light of the aforementioned provisions of the Provincial as well as Central General Clauses Acts, in rule 216 of the Municipal Committees Octroi Rules, 1964, for the words "The West Pakistan Municipal Committees (Appeals) Rules, 1960", the words "Punjab Local Councils (Appeal) Rules, 1980", shall have to be read.
14. In view of the above discussion, it can be safely concluded that in case of Jhelum Municipality, where the octroi has been leased in favour of the petitioner, rule 216 of the Municipal Committees Octroi Rules, 1964, relating to appeal, has no application by virtue of the provisions of rule 226 of the said rules and, therefore, Chaudhry Muhammad Boota Councillor/Vice-Chairman of the said Municipal Committee, had no jurisdiction to entertain appeal of the contesting respondent and to pass the impugned order.
' In Muhammad Akram v. Abdul Ghafoor etc. (1), it was held by the Supreme Court of Pakistan that when an appeal by a municipal servant in respect of a service matter against the order of Municipal Committee or Administrator was not competent under the relevant rules, no appeal would lie before the Deputy Commissioner as a controlling authority, as he lacked jurisdiction to entertain such appeal. In Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi and another (2), it was held that under section 66-A(2) and (3), Income-tax Act, 1922, no appeal to the Privy Council was competent unless the case was certified as fit by the High Court. In Bhai Kirpa singh v. Risaldar Ajaipal Singh and others (3), it was ruled that right to file appeal is a vested right, but it can be abolished expressly or by necessary implications by a statute. This view was followed by the Supreme Court of Pakistan in Muhammad Ishaq v. The State (4). In Ibrahim v. Muhammad Hussain (5), it was held that unlike suits of civil nature, which can be instituted independently of any statute, right of appeal being a creature of statute cannot be assumed unless expressly given by the statute. In The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and 2 others (6), it was ruled that in cases of absence of jurisdiction, writ of certiorari can be issued to quash a proceeding even if an alternate remedy is available.
(1) 1980 SCM R 541 (2) AIR 1927 P C 242
(3) AIR 1928 Lah. 627 (4) PLD 1956 SC (Pak.) 256
(5) PLD 1975 SC 457 (6) PLD 1958 SC 437 The ratio decidendi enunciated in the aforementioned judicial precedents supports the conclusion already arrived at that when the statutory rules have expressly taken away the right of appeal in octroi cases, in case of municipalities, where the octroi has been leased, no appeal is competent and thus in the under consideration case, the Councillor/Vice-Chairman, who passed the impugned order, lacked jurisdiction in the matter.
15. The petitioner has also challenged the authority of Chaudhry Muhammad Boota Councillor/Vice-Chairman who passed the impugned order on the ground that the Chairman i,e, Raja Muhammad Afzal Khan could not delegate his power of hearing of appeal under the relevant rules to the former and that at least such delegated powers came to an end when the latter himself returned from abroad. This argument, when considered and analysed in the light of the relevant provisions of the Punjab Local Government Ordinance, 1979, turns out to be without substance. Section 170(3) ibid provides : "A chairman may delegate all or any of his powers under the Ordinance or the rules or bye-laws, not being powers delegated to him under subsection (2), to the Vice-Chairman or any member of the local council, or any of his officers." It thus transpires that Chairman can delegate his original powers to the Vice-Chairman or any member of the local council, or any of his officers. He cannot, of course, further delegate the powers delegated to him by the local council concerned. The powers to hear appeal against the order of Taxation Officer are vested under the statutory rules viz. Municipal Committees Octroi Rules, 1964, in the Chairman himself and, therefore, he G could validly delegate these powers to the Vice-Chairman, or a councillor or any of his officers. Any provision to the contrary contained in the subordinate legislation viz. The Punjab Local Councils (Business) Rules, 1980, rules 9 & 10 whereof have been relied upon by the learned counsel for the petitioner, being repugnant to the provisions of the Ordinance, cannot have any legal effect. It has also been noticed that delegation under section 170(3) of the Punjab Local Government Ordinance, 1979, can be for a specific period or till further orders. In the present case, such delegation was till further orders and, therefore, return of Raja Muhammad Afzal Khan, Chairman, from abroad shall not affect the validity of the delegation made in favour of Chaudhary Muhammad Boota Councillor/Vice-Chairman. Similarly, Chaudhary Muhammad Boota having become Vice-Chairman in the meantime, would not run counter to his authority to exercise the delegated powers.
16. So far as the merits of the case are concerned, this Court in exercise of its extraordinary constitutional jurisdiction, cannot enter into the realm of facts. It has, however, been noticed that in addition to the octroi due from the contesting respondent, 10 times of such octroi has also been assessed against the said respondent on account of composition fee which under the relevant rules can only be charged if the person whose goods have been seized is prepared to pay octroi and composition fee otherwise steps can be taken to prosecute him for the offence of evasion of octroi. In the present case, there is nothing on the record to suggest as to whether respondent No, 4 has ever expressed willingness to pay the composition fee. In this view of the matter, no finding can be recorded about the merits of the case and particularly about the validity of the order passed by the Taxation Officer. In that regard, parties may have recourse to appropriate forum.
17. In the light of the above conclusions, it is held that Chaudhary Muhammad Boota Councillor/Vice-Chairman, in the purported exercise of his delegated powers as Chairman, Municipal Committee, Jhelum lacked jurisdiction to pass the impugned order, dated 17-1-1985 inasmuch as no appeal was legally competent.
' The Writ Petition is, therefore, allowed to this extent that the impugned order, dated 17-1-1985 is declared to be without lawful authority and of no legal effect. It is further directed that respondent No, 4 shall pay the costs of this Writ Petition to the petitioner.