1. ' SAEEDUZZAMAN SIDDIQUI, J.--This order will govern the disposal of above-mentioned four petitions which are filed to challenge the notification dated 27-6-1984 issued by the Chairman, Union Council Deh Gujro, District East Karachi, imposing octroi tax with effect from 1-7-1984 on goods brought within the limits of Union Council at the rate shown in the Schedule attached with the notification.
2. ' The contention of the learned counsel for the petitioners jointly in the above cases is that the levy of octroi tax by Union Council Deh Gujro in the area where the lands of petitioners are situated is wholly without jurisdiction as it is an 'urban area' as declared by section 8(2) of Sind Local Government Ordinance 1979 (hereinafter referred to as 'the Ordinance only'). The respondents on the other hand jointly contended that the area is within the limits of Deh Gujro, and as such levy of octroi tax by the Union Council is fully competent under the law. In order to appreciate the controversy in the above cases, the following facts may be stated here: ' Petition No,193 of 1988 is filed by M/s. Baba Corporation (Pvt.) Ltd., which has entered into a contract with Ahsanabad Co-operative Housing Society for carrying on development work over the land belonging to the Society for construction of houses etc. For its members. Petitions Nos. 144 and 314 of 1988 are filed by M/s. Sunny Homes (Pvt.) Co. Ltd., and M/s Shalimar Enterprises Partnership (Regd.) Karachi, respectively, which are constructing houses on plots of land situated in the Scheme known as Karachi Metroville. Petition No,313 of 1988 is filed by one Suhair Jiwani who has acquired a piece of land in the Society known as Karachi Divisional Commissioner's Employees Cooperative Housing Society and he is raising construction thereon.
3. ' The contention of the learned counsel for the petitioners jointly is that the Housing Societies, namely, Ahsanabad Co-operative Housing Society, Karachi Metroville and Karachi Divisional Commissioner's Employees Co-operative Housing Society are situated within the limits of Development Scheme No,33 which is declared as an Urban Area under section 8(2) of Sind Local Government Ordinance 1979, and as such Union Council of Deh Gujro is not competent to levy any tax, rate, toll or fee in respect of that area under the Ordinance. The argument is based on the assumption that the land in Scheme No,33 lies within the jurisdiction of Karachi Development Authority (K.D.A). Initially in some of these petitions K.D.A. Was not impleaded as a party but under the orders of the Court it has been joined as respondent in all the above petitions and it has also filed its counter-affidavit in these cases. The stand taken by the K.D.A. In the above cases is that Scheme No,33 is not a scheme of K.D.A. As it has been notified by the Board of Revenue Sind and, K.D.A. , is only responsible for execution of outer development work of this scheme. It is accordingly contended that K.D.A. Exercises only a limited authority over Scheme No,33 for the purposes of town planning and building control by virtue of notifications issued by it under Article 12 of Karachi Development Authority Order of 1957. In other words the learned counsel for the K.D.A. Contended that unless a scheme is framed by K.D.A. Under Article 45 of the K.D.A. Order of 1957 it does not acquire jurisdiction over it. In order to appreciate the contentions of the parties some of the provisions of Sind Local Government Ordinance 1979 needs detailed examination here. 'Rural Area' is defined in section 3(60) of the Ordinance as any area which is not an Urban Area. 'Urban Area' is defined in Section 3(77) ibid as urban area recognized or declared as such under the Ordinance.
4. Section 6 of the Ordinance declares that the local area for the purpose of Ordinance, in the case of Urban Area shall be ,a town, municipality or city and in case of rural areas, union, taluka and district. Section A 7 ibid lays down that the population of a local area in case of a Union will be such as may be specified by Government; for a town between five thousand and 25 thousand; for a municipality between 25 thousand and five lacs; and for a city above five lacs. Under section 8 of the Ordinance, the Government has power to declare urban and rural areas after following the procedure prescribed under subsection (1). However, under subsection (2) ibid certain areas shall be deemed to be Urban Area. As the point in issue in the above cases depends on a true construction of section 8 ibid it will be advantageous to reproduce the same here. It reads as follows:- "8.(1) Government may, after inviting objections from the residents of an area and hearing those from amongst them who wish to be heard, declare by notification such area to be an urban area or rural area, as the case may be.
(2) All areas within the jurisdiction of a town committee, municipal committee, Corporation, Karachi Development Authority, cantonment boards and Karachi Port Trust at the time of the coming into force of this Ordinance shall be deemed to be urban areas."
5. ' A careful reading of action 8(2) of the Ordinance will show that the areas within the jurisdiction of Town Committee, Municipal Committee, Corporation, Karachi Development Authority, Cantonment B Boards and Karachi Port Trust, have been declared under the Ordinance as Urban Areas. The point which, therefore, needs determination in the above cases is whether the area where the above-mentioned housing societies are situated is within the jurisdiction of Karachi Development Authority. It is an admitted position in the above cases that all the above-mentioned housing societies are situated within the boundaries of Scheme No,33. The contention of learned counsel for the K.D.A., however, is that Scheme No,33 being a . Scheme of C.B.R., the area in that scheme does not fall within the jurisdiction of K.D.A. It is quite clear from reading of section 8(2) of Ordinance that areas within the jurisdiction of a Town Committee, Municipal Committee, Corporation, Karachi Development Authority, Cantonment Boards and Karachi Port Trust are deemed to be Urban Areas at the time of coming into force of the Ordinance. It is, therefore, to be determined in these cases whether Scheme No,33 where the lands of petitioners are admittedly situated is an area within the jurisdiction of K.D.A. Mr. Kizilbash, learned counsel for K.D.A. Made a statement before us during the course of hearing of above petitions that in so far Karachi Metroville Society is concerned, it is one of the Schemes of K.D.A. And Karachi Development Authority exercises full jurisdiction in respect of the area of that Society. However, in respect of areas where the other two housing societies, namely Ahsanabad Cooperative Housing Society and Karachi Divisional. Commissioner's Employees Co-operative Housing Society, are situated the learned counsel contended that though these societies also fall within the limits of Scheme No,33 but K.D.A. Does not exercise jurisdiction over these areas. The petitioners have placed on record a copy of notification dated 17-1-1967 issued by the K.D.A. In respect of Scheme No,33 declaring an area of 40 sq. Miles as a controlled area under K.D.A. Order 57. It reads as under:- "KARACHI DEVELOPMENT AUTHORITY (TOWN PLANNING AND ARCHITECT DEPARTMENT)
6. NOTIFICATION ' Whereas the Karachi Development Authority (hereinafter referred to as the Authority) is framing a Scheme for the area known as North-East Karachi with approximate area of 40 sq. Miles.
7. ' Now, therefore, the Authority, in exercise of the powers vested in it under Article 12 of K.D.A. Order of 1957, declares the area of 40 sq. Miles described below as controlled area.
8. ' BOUNDARIES ' On the North. Deh Taisar and Bijarji Bathi, {{TABLE}} ' Deh Tor and Western boundary of Malir Cantt.
9. ' Boundary of Runway of Karachi Civil Airport Boundary of Drigh Road Cantt. And Boundary of K.D.A.
(W) purification planeC .0 .D. Mill.
10. On the West. K.D.A. SchemeNo,24, Scheme No,16 and North Karachi Township.
11. ' No person, individual or local authority shall be permitted to undertake any sale, sub-division, conversion, construction, development etc. Including digging, quarrying, existion down of trees etc. , without prior permission of the Chief Town Planner and Architect, K.D.A. A map of the controlled area may be seen in the Office of the Chief Town Planner and Architect K.D.A. Shahrah-e-Kamal Attaturk on any working 'day during office hours. The said map (Drawing No,P-9/127) can also be purchased for Rs,20 per copy from the said office.
12. (Sd.)
13. CHAIRMAN KARACHI DEVELOPMENT AUTHORITY."
14. ' Subsequent to the issuance of above Notification .K.D.A. Issued another notification on 22-10-1980 under Article 12 of K.D.A. Order 1957 extending the boundaries of Scheme No,.33 which is as follows:- "KARACHI DEVELOPMENT AUTHORITY Karachi, the 22nd October, 1980 NOTIFICATION ' No, 5-22/75-Reg/ KD A/ 80. Whereas Karachi Development Authority (hereinafter referred to as the 'Authority') has framed a Scheme for the area known as 'North-East Karachi'. With approximate area of forty square miles showing the boundaries of the scheme under the Notification, dated 17th January, 1967. Since the boundaries of the Scheme are now intended to be revised. Now, therefore, in exercise of the powers vested it in under Article 12 of K.D.A. Order No,V of 1957 declares the extended areas of. Deh Taiser and Bijar Hatti as detailed below as controlled areas, same as other areas covered by Scheme No,33 controlled by its Notification dated 17th January, 1967.
15. BOUNDARIES OF EXPANSION (First Phase)
16. ' On the North ' Makinala along Southern boundaries of Deh Mokhi and Southern edge of. Deh Shah Mureed.
17. ' One the East ' South Western boundary of Deh Narather and North Western boundary of Deh Tor.
18. ' On the West ' Lyari River Bank and Bank of Mohinala along South Eastern boundary of Deft Nagan.
19. ' On the South ' Nothern boundaries of present Scheme No,33 in the portions alongwith northern boundaries of Deh Bitti Amri and Deh Thaming.
20. ' No person, Association, Company or Society, any Local and Provincial Authority, shall be permitted to undertake any sale, lease, sub-division, consolidation, conversion, construction, outer or internal development etc., including digging, quarrying, filling, grading or cutting down of trees etc. Without prior permission, permit or approval of the Director Master Plan and Environmental Control Department, K.D.A. Or an Officer of the Department exercising powers vested in him/them by the Authority.
21. A map of the (extended) controlled area of Scheme No,33 may be seen in the office of the Director, MP and EC., K.D.A. On any working day during office hours. The said map (Drawing No,15-244/322, dated 22nd June, 1980 can also be purchased for Rs,20 per copy from the said office.
22. (M.M.USMANI) Chairman, KARACHI DEVELOPMENT AUTHORITY"
23. ' The above-referred two notifications issued by the K.D.A. Under Article 12 of the K.D.A. Order 1957 make it clear that in respect of the area falling within the limits of Scheme No,33 no person, Association, Company or Society, Local and Provincial Authority, is competent to undertake any sale, lease, sub-division, consolidation, conversion, construction, outer or internal development etc. Including digging, quarrying, filling, grading or cutting down of trees etc. Without prior permission, permit or approval of the Director, Master Plan and Environmental Control Department, K.D.A. Or an Officer of the Department exercising power vested in him by the Authority (K.D.A.). Whether the exercise of above-mentioned powers by the K.D.A. In respect of area falling within the limits of Scheme No,33 is sufficient to hold the area as falling within the jurisdiction of Karachi Development Authority. The answer to it depends on the meaning of word 'jurisdiction'. The word 'jurisdiction' is not defined in the Ordinance. However, it is defined in Chambers 20th Century Dictionary as follows: - "the distribution of justice; legal authority; extent of power; district over which any authority extends.
24. (The underlining is by us to supply emphasis).
25. ' In view of the above meaning of word 'jurisdiction' we are of the view that the above powers and control exercised by K.D.A. Over the entire area of Scheme No,33, with regard to, sale, lease, sub- division, consolidation, conversion, construction, outer and internal development etc. Of the land in that area, as a result of issuance of two notifications under Article 12 of the K.D.A. Order 1957 reproduced above, are sufficient to hold that whole of Scheme No,33 fell within the jurisdiction of Karachi Development Authority. It is difficult to assimilate the argument of learned counsel for the respondents in the above cases that although K.D.A. Exercised such vast powers to control sale, lease, conversion, construction, outer and internal development of land etc. In Scheme No,33, yet the area was not within their jurisdiction. In our view such vast powers could only be exercised by K.D.A. In respect of Scheme No,33 provided the area fell within their jurisdiction. We accordingly hold that whole of the area of Scheme No,33 is an Urban Area within the meaning of section 8(2) of the Ordinance.
26. ' Under Section 10 of the Ordinance a Union Council is constituted only in respect of rural area and as such it was not competent to levy octroi in respect of area falling within the limits of Scheme No,33 which is an 'Urban Area'. We accordingly declare levy of Octroi by Union Council of Deh Gujro under notification dated 27-6-1984 in respect of area falling within the limits of Housing Societies namely, Karachi Metroville Ahsanabad Co-operative Housing Society and Karachi Divisional Commissioner's Employees Co-operative Housing Society as without lawful authority and of no legal effect. There will, however, be no order as to costs.