' AJMAL MIAN, J.-- By this common judgment we intend to dispose of the above two petitions as they involve some common points of law. The brief facts leading to the filing of the above petitions are as follows:
(i) Constitutional Petition No.D-731 of 1983.
The two petitioners are the nationalised units of Ghee Corporation of Pakistan Limited and have their respective factories .inter alia for manufacturing oil Ghee and its by-product, laundary soap within the Municipal Coroporation Hyderabad. Respondent No.2 (which is the Hyderabad District Council) by impugned notifica tion, dated 3-9-1983 issued in exercise of the power conferred by section 60 of the Sind Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) read with Sind Councils (Imposition of Taxes) Rules, 1979 and section 48 (d) of the Ordinance imposed Rawangi Mahsool with effect from 1-9-1983, inter alia in respect of refined oil of all kinds including Ghee. Respondent No.3 is the Contractor, who has been awarded the contract to collect the above Rawangi Mahsool. Since the recovery of the above Rawangi Mahsool was made from the petitioners they have filed the present petition impugning the above levy.
(ii) Constitutional Petition No. D-586 of 1984.
The petitioner is a Sugar Mill situated within the territorial area and limits of Town Committee, Shahpur Jahania, whereas respondent No.1 is the District Council Nawabshah, which by a notification, dated 28-6-1984 issued in exercise of the powers delegated to it by the Government of Sind under notification, dated 3-6-1980 under section 60 (1) of the Ordinance read with Item 6 of Part III of Schedule V and in continuation of notification, dated 19-5-1984 imposed export tax (Rawangi Mahsool) on the three extra items mentioned in column 2 namely sugar (refined), bagasse and molasses at the rates mentioned therein. The respondent No.2 is the Contractor, who has taken contract to collect the above Rawangi Mahsool on behalf of respondent No.1. Since the above Mahsool was recovered from the petitioners, they have impugned the above levy.
' The above writ petitions have been resisted by the respondents including the Government of Sind, which is one of the common respondents in both the writ petitions. It has been averred by the respondent that the above levy is legal. It has also been denied that the respondent concerned has not observed the mandatory rules.
2.(a) In support of the above petitions Messrs Rashid Akhund and Samiuddin Sami have urged as follows:
(1) That under rule 2(2)(f) of the People's District Council Export Tax Rules, 1976, the limits of People's Municipalities and Town Committees have been excluded from the limits of the District Council and, therefore, the levy is ultra vires.
(ii) That in view of the Government directive contained in sub-para. (5) of the Director-General Rural Development Department, Government of Sind, dated 6-6-1983 the Rawangi Mashsool could not have been claimed or recovered on the goods exported from the area falling outside the limits of the District Councils i.e. goods from the Urban areas within the District.
(iii) That the mandatory requirement of the Sind Council (Imposition of Taxes) Rules, 1979, have not been followed.
(iv) That since the respondent District Councils are not rendering any service to the petitioners the toll i.e. the Rawangi Mahsool cannot be recovered.
(b) On the other hand Messrs Khalid M. Ishaque, Imam All Memon, Rasool Bux Unar and Satter A.
Sheikh, Additional Advocate-General, Sind have submitted as under:
(i) That the petitioners in Constitutional Petition No.D-586/1984 have no locus standi to impugn the above levy.
(ii) That since rule 2 (2)(f) of the People's District Council Export Tax Rules, 1976, is inconsistent with the provisions of the Ordinance, the same is not saved by section 120 of the Ordinance.
(iii) That the above directive of the Provincial Government, dated 6-6-1983 is ultra vires of the powers of the Provincial Government.
(iv) That the provisions of the Sind Councils (Imposition of Taxes) Rules, 1979 were complied with.
(v) That the petitioners have not raised any plea in their petitions that the respondent District Councils are not rendering any service.
3. Adverting to the question of locus standi of the petitioners in Constitutional Petition No.586 of 1984, it may be observed that Mr. Khalid Ishaque in support of his above submission has relied upon the case of Burmah Oil Company Limited v. The Trustees for the Port of Chittagong PLD 1961 SC 452 in which the Hon'ble Supreme Court dismissed Civil Appeal No.13 of 1961 on the ground that the appellant had no locus standi to maintain the writ application in the High Court. It has been contended by Mr. Khalid Ishaque that since the Rawangi Mahsool is paid by the purchasers of the sugar from the above petitioners, the petitioners have no locus standi.
' On the other hand Mr. Akhund has invited our attention to Annexures I-1 and 1-2 which are the receipts issued for the payment of Rawangi Mahsool. It has been averred by the petitioners that the above payments have been made by them.
' Mr. Akhund has placed reliance on the case of Montgomery Flour and General Mills Limited. v.
Director, Food Purchase PLD 1957 Lah. 914, in which it was held that any person whose interests are affected by the order can maintain a petition for a writ or direction. It will suffice to observe that in the present case since the petitioners in the above petitions have produced the receipts for payment of Rawangi Mahsool, it cannot be urged that they have no locus standi.
4.(a) As regards the second submission of the learned counsel for the petitioners that under rule 2
(2) (f) of the People's District Council Export Taxes Rules, 1976, has excluded the limits of People's Municipali ties and Town Committees for the purpose of export tax, it may be advantageous to reproduce hereinbelow the above clause which reads as follows: "(2)(2) '(f) District Council limits' means limits of the revenue District, excluding the limits of People's Municipalities and Town Committees."
' It has, therefore, been contended that since the limits of the People's Municipalities and Town Committees have been excluded from the limits of the District Council, the Rawangi Mahsool cannot be imposed on the petitioners' goods as their factories are situated outside the limits of the District Council.
' On the other hand it has been urged by the learned counsel for the respondents that the above rule is not saved under section 120 of the Ordinance in view of the inconsistency between the above rule and the provisions of the Ordinance. It has been further urged by them that under section 3(19) of the Ordinance the District has been defined as 'means a revenue District' and, therefore, the Municipal Council of Hyderabad and the Town Committee, Shahpur Jahania fall within the limits of the District Councils concerned and hence the above rule being repugnant to the provisions of the Act, stood repealed.
' In this regard, it may be pertinent to point out that item 6 of Part III of Schedule V to the Ordinance was amended by Ordinance No.XV of 1981 and in place of the words "tax on the export of goods from the local area" the following words were substituted: "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."
' To reinforce their above submissions the learned counsel for the respondents have further urged that under the above-quoted amended item 6, the right to levy toll has been exclusively conferred upon the District Councils and, therefore, even by virtue of the above-amended item the above rule 2(2) (b) of the Export Tax Rules, 1976 stood repealed.
' Mr. Imam Alli Memon has placed on record a copy of Notification No. 1-1-1977 Reve-I(IV) 847, dated 19-7-1977 issued under section 6 of the Sind Land Revenue Act, 1967 defining inter alia District Hyderabad, which inter alia indicates that Hyderabad City is within the Hyderabad District.
' On the other hand Mr. Rasheed Akhund has placed on record a photostat copy of Notification No.60(III) 1-4/74, dated 24-6-1974 indicating that Shahpur Jahania and other Union Councils mentioned therein were upgraded to the staus of Town Committees and their respective boundaries were mentioned therein; whereas Mr. Samiuddin Sami has placed on record two original Gazettes i.e. one dated 2-2-1983 containing Notification No.PEAS/914/83 defining the Constituencies/ Electoral Units of all the Councils of District Nawabshah and Notification No.PEAS/905/1-8/83 publishing the final list of constituencies (Electoral Units) of all the Councils of District Hyderabad.
(b) We are inclined to hold that the aforesaid notification, dated 19-7-1977 issued by the Secretary, to the Government of Sind, Revenue Department, Hyderabad under section 6 of the Sind Land Revenue Act, 1967 has no relevancy to the point in issue. The relevant notifications are the notifications issued under the Ordinance. The above conclusion is supported by the provisions of the Ordinance. In this regard, reference may be made to the relevant provisions of the Ordinance namely clause 15 of section 3 defines "council" as means a corporation, municipal committee, town committee, district council, taluka council or union council, as the case may be, clause 21 gives the meaning of the term "district council" as means a district council constituted under the Ordinance, clause 34 defines "local area" as means an area which lies within the jurisdiction or limits of a council, clause 35 gives the meaning of the term "local council" as means a local council constituted or continued under the repealed enactment, clause 40 defines "metropolitan corporation" means a metropolitan corporation constituted under the Ordinance, clause 42 gives the definition of the term "municipal committee" means a municipal committee constituted under the Ordinance, clause 43 provides "municipality" means an urban area declared as a municipality under the Ordinance, clause 73 defines "town committee" means a town committee constituted under the Ordinance, whereas clause 76 gives the meaning of "union council" means a union council constituted under the Ordinance. The words "town" and "union" have also been defined in clauses 72 and 75 of section 3 of the Ordinance as mean an urban area declared as town and an area declared as union. Furthermore, clause 60 defines rural area as means any area which is not an urban area in contrast to the definition of the term "urban area" given in clause 77 of the above section 3 of the Ordinance, which defines as means an urban area recognized or declared as such under the Ordinance.
(c) It may also be pertinent to mention that section 4 of the Ordinance provides that a council constituted under this Ordinance for any local area shall, unless Government by notification, specifies otherwise, be the successor of the local councils or local councils for that area existing immediatley before the coming into force of the above Ordinance. It may further be pointed out that section 6 lays down that the local areas for the purpose of this Ordinance shall, in the case of urban areas, be a town, municipality or city, and, in the case of rural areas, union, taluka and district. Whereas subsection (1) of section 7 provides any area declared as union, town, municipality or city shall, as far as possible be compact and contiguous with territorial unity.
Furthermore, subsection (2) of section 7 lays down that the population of a local area shall in the case of--
(a) a union be such as may be specified by Government;
(b) a town be between five thousand to twenty-five thousand;
(c) a municipality be between twenty-five thousand to five lacs; and
(d) for a city above five lacs.
' It may also be stated that section 8 contemplates declaration of urban and rural areas by the Government after inviting objections, whereas section 9 envisages the declaration of town, municipality and City by the Government by a notification in any urban area other than the area of Cantonment Board. It may also be pertinent to mention section 10, subsection (1) of which provides that as soon as may be, the councils mentioned therein shall be constituted:--
(a) in urban area--
(i) a town committee for each town;
(ii) a municipal committee for each municipality;
(iii) a corporation for each city.
(b) in rural area--
(i) a union council for each union;
(ii) a Taluka council for each Taluka; and
(iii) a district council for each district except for Karachi Division there was to be one district.
' It may further be stated that section 12 of the Ordinance empowers the Government, after inviting objections from the residents of a council or, as the case may be, councils and after hearing them who wish to be heard, by notification divide the council into two or more councils or amalgamate two or more councils and may specify in the notification the consequences which may ensue upon such division or amalgamation. It further provides that as a result of such division or amalgamation, any council, is constituted in accordance with the provisions of the Ordinance, the existing members of the council so divided or amalgamated shall become the members of such council or councils as the Government may, by notification, specify as if such members had been elected to that council. Furthermore, section 13 empowers the Government after inviting objections to extend, curtail or alter the limits of any council.
(d) The above provisions read with the above notifications placed by the learned counsel for the petitioners on record clearly negate the contention of the learned counsel for the respondents that for the A purpose of the Ordinance the limits of a district council are the limits of a revenue district.
We are inclined to hold that the Ordinance envisages separate areas for the councils referred to in the Ordinance. In other words there is a marked distinction between a "district council" and councils for a district. Every district will have one district council but for a district there are more than one councils in terms of subsection (1) of section 10 of the Ordinance referred to hereinabove in para. 4(c).
(5) As regards the second limb of the argument of the learned counsel for the respondents that under the amended item 6 of Part III of Schedule V to the Ordinance only the District Councils have been given the power to levy Rawangi Mahsool, it may be observed that Part III of Schedule V relate to taxes, rates, tolls and fee which can be levied by district councils and union councils and, therefore, it has been provided that only district councils shall be entitled to levy toll on the export of goods to be called Rawangi Mahsool to be shared by the district councils and such councils of the district in such ratio as and when directed by the Government. The words "such councils" referred to in above item 6 mean union councils mentioned under the heading of the above Part III and do not cover matropolitan corporation, municipal committee and town committees, which is evident from the fact that Part II of Schedule V to the Ordinance pertains to taxes, rates, tolls and fee which may be levied by a corporation including the matropolitan corporation, municipal committees and town committees and item No.4 of the above Part II provides the item "tax on the export of goods from the local area" which item is identical to the unamended item 6 of Part III referred to hereinabove. It may be observed that Part II relates to councils covering urban areas, whereas Part III of Schedule V pertains to the councils situated in rural areas. The amendment of item 6 of Part III cannot by implication repeal item 4 of C2 Part II as they are independent from each other. It is also evident from Schedule IV to the Ordinance, which separately defines the functions' of the various councils.
' We are of the view that there is nothing in the Ordinance contrary to rule 2 (2) (f) of the District Council Export Tax Rules or in the above-amended item 6 of Schedule V to the Ordinance as to infer the repeal of the above rule either by implication or on account of repugnancy. The above rule is saved by section 120 (2) (a) of the D Ordinance. With the result that for the purpose of imposition of toll on the export of goods i.e. Rawangi Mahsool the limits of peoples municipalities and town committees are excluded and, therefore, the levy is ultra vires of the power of the respondents district council.
' In this regard, it may be pertinent to point out that in Constitu tional Petition No. D-586 of 1984, respondent No.1 district council did not impose Rawangi Mahsool on the three items referred to hereinabove namely, sugar (refined), bagasse and molasses in their first notification, dated 19-5- 1984. This was in consonance with the stand taken by it in their letters, dated 21-8-1983, 15-5-1983, 26-5-1983 and 20-10-1983. Annexures D, E-1, E-2 and E-3 to the name of petition of Constitutional Petition No. D-586 of 1984. Through Annexure 'D' respondent No.1 Chairman informed the petitioner in the above petition that district council shall not recover export tax on the export of sugar, molasses and begasse till the Government issues notification regarding extension of district council limits. Whereas by Annexures E-1, E-2 and E-3 the respondent No.1 District Council asked the petitioner to furnish the details of the sugarcane received by the mill from the limits of the district council as the same was subject to levy of export tax. la other Words, it was stated that the sugarcane was exported from the limits of the district council to the limits of the town committee.
The above documents belie the stand of the respondent district council before us that the limits of the District Council includes the limits of the Town Committees as well as of the Municipal Committees.
6. It was then contended by Messrs Khalid M. Ishaque and Imam AU Memon that the above substituted item 6 has in addition to the use of the words "toll on the export of the goods to be called Rawangi Mahsool by the district councils only" --also omitted the words "in the local area" which were employed in item 6 prior to the amendment as has been done in item 4 of Part II of the above Schedule V and, therefore, a district council is not restricted to levy the above Rawangi Mahsool in the local area as defined in clause 34 of section 3 referred to hereinabove. It will suffice to observe that as pointed out hereinabove Part III of Schedule V relates to rural area whereas Part II of Schedule V pertains to urban area. The effect of the omission of the above words i.e. "in the local areas" from item 6 of Part III seems to be that a district council is competent to levy the .Rawangi Mahsool even in the areas falling within the union council as the above amount is to be shared as may be specified by the Government in the ratio to be fixed by the Government between a district council and the councils situated within the rural areas.
7. As regards the second submission of the learned counsel for the petitioners that in view of the Government directive contained in sub para. (5) of the Director-General Rural Development Department, Government of Sind, dated 6-6-1983 the Rawangi Mahsool could not have bap!' claimed or recovered on the goods exported from the area falling outside the limits of the District Councils, it may be pertinent to reproduce hereinbelow the opening para. of the above directive and sub-para. (v) of the above directive which read as follows: "Opening para. of the directive Subject:- DIRECTIVES ABOUT TAXES BY THE LOCAL COUNCILS.
In pursuance of the decision taken by the Sind Cabinet which considered the report of the Cabinet Sub-Committeee on 23rd August, 1982, the following directives are hereby issued to all Local Councils in Sind under section 62 (1) of the Sind Local Government Ordinance, 1979 in regard to levy of taxes by them."
' Sub-para. (v) of the above directive.
' District Councils will not be entitled to recover Rawangi Mahsool on the goods 'exported' from the areas falling outside their limits. Hence the goods moving from the urban areas within the District will not be subjected to Rawangi Mahsool by the District Councils."
' A plain reading of the above-quoted para. indicates that the Government has directed the district councils not to recover Rawangi Mahsool on the goods exported from the areas falling outside their' limits, with the result that the goods leaving from the urban areas within the district will not be subjected to the Ranwangi Mahsool by the district council. However, it was urged by Mr. Khalid M.
Ishaque that the above directive is beyond the purview of section 62 of the Ordinance, as the above directive was issued prior to the imposition of the levy which was done in both the cases, prior to the above directive i.e. in September, 1983 and June, 1984, and therefore, the same is not covered by clause (c) of subsection (1) of section 62, and, hence, it is ultra vires of the powers of the Provincial Government. It may be pertinent to reproduce hereinbelow above section 62 which reads as follows: "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 direction is issued under subsection (1) the Chief Executive of the Council shall, notwithstanding any thing 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."
'A plain reading of the above-quoted section indicates that under the above section the Government has been empowered to direct any council inter alia, to levy any tax or toll or to increase or reduce any rate, tax, toll or fee or to suspend or abolish the levy of any tax, rate, toll or fee. It has, therefore, been contended that in order to press clause (c), it is necessary that the suspension or abolition of the levy should be in respect of an existing levy of any tax, rate, toll or fee and as on 6-6-1983 the impugned notifications were not in existence, the above clause (c) cannot be invoked in aid to justify the above directive. In this connection, it may be pertinent to point out that under subsection (1) of section 60 it has been provided that a council with the previous sanction of the Government may levy in the prescribed manner all or any of the taxes, rates, tolls and fees mentioned in Schedule V to the Ordinance. In other words, a council cannot levy any tax, rate, toll or fee without previous sanction of the Government. The above directive of the Provincial Government, dated 6-6-1983 can be construed as withholding of the sanction for the levy of the Rawangi Mahsool on the goods exported from the areas falling outside the limits of the district council. In this view of the matter, it is not necessary to examine the above argument any further.
However, it may be stated that the learned counsel for the petitioners have referred to the following cases in order to demonstrate that goods in transit cannot be subject-matter of levy.
(i) Pakistan Textile Mill-Owners' Association, Karachi and 2 others v. Administrator of Karachi and 2 others, reported in PLD 1963 SC 137, in which the Hon'ble Supreme Court while considering the legality of the terminal tax charged by the Karachi Municipal Corporation, observed as follows: "The contention of the learned counsel for the appellants is that in respect of the goods whose ultimate destination is outside the Municipal limits of the Municipality the terminal tax cannot be levied merely on the ground that they pass through the Municipal limits in transit to their ultimate destination. He has sought to support this contention of his by a decision of the Supreme Court of India in the case of the Central India's Spinning, Weaving and Manufacturing Company Limited The Empress Mills, Nagpur v. The Municipal Committee, Wardha AIR 1958 SC 341 where it was held that the terminal tax is not leviable on the goods which are in transit and are only carried across the limits of the Municipality', because the word 'terminal' must be 'construed as having reference to terminus and has to be read to connote the idea of the end of something connected with a motion and not that of an intermediary stage of a journey."
' In that case the appellant-Company transported cotton bales from Yeotmal where it had its Mills to Nagpur by road and vehicles carrying them had to pass through the limits of the Wardha Municipality but did not more than use the road which traversed the said Municipal limits. That was a case purely of goods passing through the municipal limits. There was no loading or unloading done at any point within those limits. The facts of the case before us, however, are different, for, the goods brought in even by rail are unloaded at railway stations or yards within the Municipal limits, then reloaded into other transport vehicles and carried to the Mills of the appellants either at Landhi or Manghopir."
(ii) Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corporation PLD 1967 SC 241. In the above case the Supreme Court of Pakistan while construing rule 5-B of the Terminal Tax Rules on the question of goods being in transit, observed as follows: "Rule 5-B also appears to us to suffer from another defect in so far as it also purports to give power to levy a terminal tax at a conscessional rate even on goods purely in transit. The rules as worded empowers the Municipal Corporation to levy a terminal tax on goods 'passing the limits of Karachi Municipal Corporation on their way to and from such factories' situated in the areas comprised within the Sind Industrial Trading Estate, if such goods leave the terminal tax barriers within two hours without changing bulk. It has, however, to be pointed out that the respondent Corporation has before the High Court stated that no terminal tax was in fact levied on any goods which were purely in transit and a similar assurance has also been given before us. We do not wish to say any thing further on this question except to point out that such a levy would, if made, be illegal even in rule 5-B were to be considered to be still in force. We have, however, come to a different conclusion as, in our opinion, the rule cannot be considered to be validly in force after the coming into force of the Ordinance of 1960."
' On the other hand Mr. Khalid M. Ishaque has referred to the case of Messrs Ravi Rayon Ltd. v.
Commissioner Lahore Division, Lahore PLD 1978 Lah. 387, in which the petitioner had impugned the levy of export tax by a Zila Council on the ground, that under Government letter, dated 24-5-1962 from the Secretary to the Government of West Pakistan, Zila Councils were prohibited from levying or collecting any tax within the limits of the Municipal and Town Committees. It was held by a learned Single Judge of the Lahore High Court that the above argument was fallacious as the tax in question had been levied not on the manufacture or use of the petitioner's product within the limits of the Municipality but on the export thereof out of the boundaries of the district. It was further held that in case the Municipal boundaries touch the district boundary at some point, the moment the product crosses the boundary of the district at that point, it is also out of the limits of the Municipality.
' Because of the view taken by us hereinabove, it is not necessary to go into the question whether the above Supreme Court cases and the above judgment of the learned Single Judge of the Lahore High Court are applicable to the facts of the present cases.
8. Reverting to the third contention of the learned counsel for the petitioners, it may be observed that Mr. Samiuddin Sami has invited our attention to clause (ii) of para. 2 of rule 4 of the Sind Councils (Imposition of Taxes) Rules, 1979 (hereinafter referred to as the rules), which provide 15 days from the publication of the notice by which objections or suggestions to the taxation proposals are to be submitted. It has been urged by him that in breach of the above rules, respondent No.2 published notice in daily ',Jang' dated 21-7-1983 asking public to file objections by 27-7-1983 and, therefore, there has been violation of the above rule.
' On the other hand Mr. Imam All Memon, learned counsel for respondent district council in Constitutional Petition No. D-731 of 1983 pointed out that the above irregularity was rectified by issuing another notice inter alia, in daily 'Jang' dated 2-8-1983 fixing the date as 6-8-1983 for filing of the objections in continuation of the previous notice and for hearing objection as 8-8-1983.
However, it was submitted by Mr. Samiuddin Sami that this was a fresh notice which was also short of 15 days, In our view, it is not necessary to go into the above question as admittedly the aforesaid petitioners filed their objections on 7-8-1983 and the same were heard by the respondent district council and, therefore, it is not open to the petitioners after having been heard to agitate that the notice given in the daily 'Jang', dated 21-7-1983 was for seven days and not for fifteen days.
' Whereas Mr. Rasheed Akhund has contended that respondent district council, in his petition, has contravened the proviso to rule 3 of the rules by adding the three items in question through the above notification, dated 28-6-1984 though the above items were not included in the earlier notification, dated 19-5-1984. To put it precisely his submission was that under above proviso to rule 3 it has been provided that no taxation proposal shall be formulated in respect of a levy before the expiry of six months since its imposition, reduction, suspension or abolition and that as six months had not expired at the time of issuance of the above second notification, dated 28-6-1984 from the date of issuance of the first notification of 19-5-1984 there was a breach of the above proviso.
' In our view, the above proviso has no application as the export tax or the Rawangi Mahsool was not levied on the three items in question either under the above first notification, dated 19-5-1984 nor in any other notification prior to the above date and, therefore, it was not a case of impositition, reduction, suspension or abolition of a levy within the period of six months of the previous imposition, reduction, suspension or abolition.
9. This leads us to the last submission of the learned counsel for the petitioners that since the district coui,ils are not rendering any service to the petitioners, the toll cannot be recovered, it may be observed that very lengthy arguments were advanced on this aspect, but we find that in the petitions no averments have been made in this regard by the petitioners to the effect that no services have been rendered. In Constitutional Petition No. D-586 of 1984 the petitioners have raised this plea in the re-joinder. In our view, this is a disputed question of fact and since it was not specifically raised in either of the petitions, it is not necessary to go into the above question.
10. For the aforesaid reasons the above petitions are allowed and it is declared that the respondents are not entitled to recover Mahsool Rawangi on the petitioners' goods originating from their factories/Mills situated in Hyderabad Municipal Council and Shahpur Jahania Town Committee. The respondents are restrained from recovering the same.
' The petitions stand disposed of in the above terms with no order as to costs.
Petition accepted.
1985 CLC 1854 [Lahore] Be fore Abdul Shakurul Salam, J MUSLIM COMMERCIAL BANK Ltd. and another--Petitioners versus ADDITIONAL DISTRICT JUDGE, FAISALABAD and 7 others--Respondents Writ Petition No. 21' of 1985, heard on 10th April, 1985.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-- ---S. 13(a)--Default in payment of rent--Change of ownership of building in possession of tenant- -Duty of new owner to send notice to tenant intimating such transfer--If requisite notice was not given, tenant, held, should not be deemed to be a defaulter in payment of rent--Owner would d not be entitled to seek ejectment on ground of default in payment of rent--Other grounds enumerated in S. 13 would however, be available to landlord. [p. 1856] A Muhammad Nawaz and 2 others v. Sh. Abdul Latif and another 1971 SCMR 198; Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185; Messrs Everyday Pictures Ltd. v. Chamman Begum 1983 SCMR 282 and Mrs. Mariam Fernandes v. State Life Insurance Corporation of Pakistan, Karachi PLD 1981 Kar.
591 ref.
(b) Provisional Constitution Order (1 of 1881)-- ---Art. 9--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13--Finding of facts by Courts below--No interference, held, was possible in exercise of Constitutional jurisdiction in circumstances.-- (Finding of fact]. [ p. 1857] B Syed Faiz-ul-Hasan Naqvi for Petitioner.
Nemo for Respondents Nos. 1 and 2.
Sh.Naveed Shaharyar for Respondents Nos. 3 to 8. Dates of hearing: 23rd February and 10th April, 1985.
' The respondents Nos. 3 to 8 filed an ejectment application against the petitioners on the ground of personal need before the learned Rent Controller, Faisalabad. The following issues were framed:- -
(1) Whether the petitioners require the premises in dispute in good faith for their personal use and occupation? O.P.P.
(2) Whether the petitioners have not served the statutory notice under section 13 (a) of the Ordinance; if so, with what effect? O.P.R.
(3) Relief.
2. After recording the evidence of the parties, the learned Rent Controller decided both the issues in favour of the respondents and directed the eviction of the petitioners vide order, dated 18-4-1984.
The petitioners filed an appeal. The decision on the issue of personal need was questioned. The learned Appellate Authority, the Additional District Judge, Faisalabad, went over the evidence and also observed that it was admitted by the petitioners' own witness as R.W-1 that "the respondents had not agreed to increase the rent and their refusal was on account of the fact that they required the disputed property in good faith for their personal use". He upheld the finding of the learned Rent Controller on the bona fide need of the respondents and dismissed the petitioners' appeal allowing them three months' time to vacate the premises in dispute. This is vide order, dated 9-10-1984. This is challenged by the petitioners through this Constitutional petition.
3. Learned counsel for the petitioners has vehemently contended that the premises in dispute were taken on rent by the petitioners initially from Abdul Ghani and Muhammad Ishaque. No statutory notice under section 13 (A) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was given to the petitioners by the respondents who claim to have acquired the property. He referred to Muhammad Nawaz and 2 others v. Sh.Abdul Latif and another 1971 SCMR 198. He secondly contested the finding on the question of the bona fide need and urged that one of the respondents i.e. respondent No.3 had said to the petitioners that he was not desirous of evicting the petitioners.
4. Learned counsel appearing for the respondents Nos. 3 to 8 has submitted that the requirement of notice under section 13 (A) of the aforementioned Ordinance is in relation to an ejectment application filed on the ground of default. If the notice is not given, there shall be no default under the said provision. Section 13 (A) of the Ordinance has no relevance when the ejectment is sought on the ground other than that of default in payment of rent, for example, for the personal need. He referred to two decisions of the learned Supreme Court of Pakistan on the point, namely, Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185 and Messrs Everyday Pictures Limited v. Chamman Begum 1983 SCMR 282.
5. As regards the contentions of the learned counsel for the petitioners questioning the bona fide need of the respondents, the learned counsel submitted that there is a concurrent finding of fact based on the admission of the witness of the petitioners themselves and the finding is not interference in exercise of Constitutional jurisdiction. Besides that, it is on the record in evidence that one of the respondents is earning his livelihood by selling Kulchas in a public street. In reply, the learned counsel for the petitioners submitted that the judgment relied upon by the learned counsel for the respondents 1973 SCMR 185 has been distinguished in Mrs. Mariam Fernandes v.
State Life Insurance Corporation of Pakistan, Karachi, PLD 1981 Kar.
591.
6. I have heard the learned counsel for the parties on occasions and at length. Section 13 (A) of the West Pakistan Urban Rent Restriction Ordinance, 1959, is to the following effect:- 13(A) "Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of subsection (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him."
'A plain reading of the section would show that if the requisite notice is not given, the tenant shall not be deemed to be a defaulter in the payment of the rent. Obviously, on this ground the person who has acquired title and has not given the notice, shall not be entitled to eject the tenant. As regards other grounds, he will be like any other landlord entitled to invoke the relevant provision's of law, like section 13 of the aforesaid Ordinance. The judgments of the learned Supreme Court of Pakistan quoted by the learned counsel for the respondents are directly applicable to the question in hand i.e. the effect of non-issuance of a notice. In other words, if the respondents had sought ejectment of the petitioners on the ground of default, they would have been non-suited for not giving the notice. Since they had gone to the Court not on the ground of default in payment of the rent by the petitioners but for their personal bona fide need, their petition had to proceed. It may also be noticed that the petitioners had not even argued the point about notice under section 13
(A) of the Ordinance before the Appellate Authority, i.e. the Additional District Judge.
7. As regards the finding of the two Courts below that the respondents needed the premises for bona fide personal use based as it is on the evidence on record coupled with the admission of the petitioners' own witness R.W-1 that the respondents had refused enhancement of rent on account of the fact that they required the premises in good faith for their personal use, it is obvious that no interference is possible in exercise of the Constitutional jurisdiction. The contention of the learned counsel for the petitioners that one of the respondents i.e. respondent No.3 had told the petitioners that he was not keen to evict them is neither here nor there. Neither he was produced nor any document executed by him. In any case, he was not the only person who had obtained the order of ejectment against the petitioners.
8. In view of what has been stated above, there is no force in this Constitutional petition and the same is dismissed but in the circum stances the parties are left to bear their own costs.
9. Learned counsel for the petitioners requested for time being given for handing over vacant possession. Both the learned counsel for the petitioners and the respondents agree that the petitioners shall hand over vacant possession of the premises to the respondents within three months from today. Be it so.