' WAJIHUDDIN AHMED, J.--Petitioners, in these two petitions, have, inter alia, impugned the actions, respectively, of the District Councils Tharparkar and Khairpur in imposing export tax and/or toll on petitioners' produce namely, sugar, leaving the physical limits of the relevant District Councils and meant for delivery on destinations in the other provinces in the Islamic Republic of Pakistan. Other contentions, touching upon compliance of relevant rules and issuance of necessary notifications, though raised in these petitions, were faintly urged and seem to have been met by production of due material. This need not detain us here.
2. Actions, questioned in these petitions are, basically, assailed under Article 151 of the Constitution of Pakistan, which guarantees trade, commerce and intercourse throughout Pakistan to be free, subject, however, to the power of Parliament to impose, by law, such restrictions on the freedom of trade, commerce or intercourse between one province and another, or within any part of Pakistan, as may he required in public interest. Article 151(3) of the Constitution also, negatively, provides that a Provincial Assembly or a Provincial Government shall not have power to 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 impose a tax which as between goods manufactured or produced in the province and similar goods not so produced or manufactured discriminates in favour of the former goods etc. A Provincial Assembly, under Article 151(4), however, has power, by law, to impose any reasonable restriction in the interest of public health or 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 but, with the consent of the President.
3. Matters covered by Article 151 of our Constitution are, more or less, similarly dealt with in Articles 301 to 307 of the Indian Constitution but the guarantee seems to be broader in this country than in India as neither any existing laws are saved here nor any subordinate legislation is contemplated to appoint any authority, with a view to carrying out the purposes of Article 151, leaving the field open for the superior Courts to act, where necessary.
4. Examining Article 151 of the Constitution in this perspective it is to be observed that while clause
(1) of Article 151 is, generally, worded, declaring trade, commerce and intercourse throughout Pakistan to be free, sub-clause (a) of clause (3) of Article 151 diverts a Provincial Assembly or a Provincial Government of power to make any law or take any executive action prohibiting or restricting the entry into or export from the Province of goods of any class or description. Sub- clause (b) of clause (3) of Article 151, in relation to goods manufactured or produced in a province, makes it clear that imposition of a tax in respect of any such goods, which discriminates between such goods and goods not so manufactured or produced would involve contravention of the constitutional guarantee of freedom of trade, commerce and intercourse throughout Pakistan. No different results would follow if like restriction or imposition is made in exercise of delegated powers, for the rule is that what cannot be done directly cannot also be done indirectly. It would therefore, appear that such restriction or tax, whether imposed, directly, at the level of the provincial legislature or at a subordinate level in exercise of the delegated powers would unescapably, come in conflict with Article 151 Cl.(3) and all such persons as, ultimately, come to bear the burden of such a restriction or levy would require to be relieved of the same. In such context a decision of the Peshawar High Court in M/s. Khyber Electric Lamps Manufacturing Ltd. v.
Chairman, District Council, Peshawar (19q6 CLC 533) has been brought to our notice where it has been observed that imposition of a local export tax, even in respect of goods intended to be dispatched out of the province, is sustainable if the restriction be in public interest. We regret we cannot subscribe to such view as firstly, any such interpretation would run contrary to the embargo contained in Article 151(3)(b) and, further, even where cover is sought under Article 151(4) the same, where applicable, would require, corresponding, consent of the President.
5. A passing argument was made for the petitioners that even where goods are destined for a location within a province any levy of export tax in relation thereto would contravene Article 151(1) of the Constitution as the freedom is a Countrywide one. Such argument was repelled in Kotri Association of Trade v. Government of Sindh 1982 CLC 1252 to which one of us namely, Saleem Akhtar, J., was a party on holding that it was only inter-provincial trade, that is trade between provinces, which was guaranteed and not intra-provincial trade that is trade within a province. In relation to taxes on goods, such view is based on good reasons since the meanings of what is "free" in Article 151(1) have, apparently, been extended to include a restriction by way of entry or exit or even by way of imposition of discriminatory taxation which, perhaps, may not have been the case but for the prohibition in Article 151 (3) of the Constitution.
6. In these petitions the issues projected are somewhat complex. In so far as Rawangi Mehsool/export tax and/or toll are introduced, with a view to generate revenues for the relevant councils, in the context of various public works entrusted to them and chargeable, on points of exit, from the relevant geographical limits, are concerned there can hardly be any exception.
Contravention would, however, occur once goods produced or manufactured in one province are intended and proposed to be taken beyond such province into one or more other provinces in the Federation. In that specific context such measures of taxation are, positively, prohibited by the Constitution. But, then, who is to determine and how is it to be determined that goods manufactured or produced within the limits of a particular council, or other local authority functioning under the Sindh Local Government Ordinance, 1979, sought to be taken out of such local limits are intended to be dispatched within Pakistan but beyond the limits of the Province of Sindh itself ? Next, once such determination is made how are evasions of due incidents of the tax within the province to be guarded against unscrupulous traders ? On our record has been brought a set of rules applicable to exemptions issued by the Rural Development Department in the context of goods intended to be exported from Pakistan to other countries and these rules envisage various modes of refund of local duties in respect of such goods. Regrettably, and learned counsel from both sides agree and concede, there are no such or similar rules in relation to the goods produced and manufactured in this province and intended to be taken out beyond the provincial limits for consumption or use in other parts or provinces of the federation. Regrettably we say on purpose, because there is a letter dated 7-6-1981 addressed by the President of Pakistan to the then Governor of Sindh in which the following observation was occasioned:- "The cardinal principle is that a local body can impose a levy the incidence of which is on the persons living within its jurisdiction. Apart from being un-constitutional such taxes are not just in the sense that in order to provide services to its own people the local body is taxing other people Such taxes are not only unconstitutional but have also the effect of hampering inter provincial trade which must be looked at as a measure contrary to promotion of natural integration"
' In such context the Government of Sindh, per notification dated 15-7-1981, substituted Rule 23 of the Peoples District Councils Export Tax Rule 1976 and on the same date, through another notification exempted from liability to export tax, "the goods being exported outside the province for use or consumption within Pakistan, with immediate effect". However, as observed above no rules as, in consequence, became necessary, were framed.
7. Following upon the admission of these petitions some interim orders were passed, pursuant whereto the rights of the respondents were ensured by directing furnishing of due securities or deposits in cash both of which protective measures stand duly complied with.
8. While, on principle, we are inclined to allow these petitions and grant due prayers, within the framework of Article 151 of the Constitution, it would still remain to be determined as to which of the goods actually left the Province of Sindh for use or consumption in any other part or province of Pakistan. Next, it would have to be ascertained whether the petitioners did or did not realize the taxes which they paid in this province by passing the same on to the buyers or consumers in the other part, province or provinces where such goods were dispatched. It is only if the petitioners did not get themselves reimbursed of such taxes that they would succeed in avoiding liability or be entitled to seek refunds. Normally, these are not questions to be adjudicated upon in the Constitutional jurisdiction of a superior Court. Such accounting, besides, is more in line with a determination in a suit. Since, however, interim relief was granted in these petitions the resultant securities and moneys, as of necessity, shall have to be finally dealt with. In addition, since relief is being granted to the petitioners it is only proper that complete relief is granted and that such relief should be just and fair to all concerned. In so far as the referred queries and determinations are concerned, we would appoint the Official Assignee as Commissioner to do the needful within a period of 4 months. During such time, as well, the interim orders passed in these petitions shall continue to be operative.
9. On the basis of what has been said above, it is, also, necessary to emphasize the imperative necessity for the Government of Sindh to issue necessary directives or to frame due rules with a view to give effect to the conclusions reached in these petitions. Unless this is done there will be no end to acrimony. Copies of orders in these petitions shall, therefore, be forwarded to the Secretaries of the Government of Sindh in the law, Local Government and Rural Development Departments for needful to be done at the very earliest.