AJMAL MIAN, J.--- This is an appeal with the leave of this Court against the judgment, dated 3-6- 1982 passed by a Division Bench of the High Court of Sindh inter alia in Constitution Petition No.1271 of 1980, filed by respondents Nos.1 and 2, allowing the same and declaring the impugned notification dated 15-7-1979 published in the Sindh Gazette of 10th May, 1980, to be without lawful authority and of no legal effect. Leave was granted to consider the following three questions:--
(1) Whether the notification dated 5-1-1977 under the Sindh Local Government Ordinance, 1972 authorising the Commissioner to approve of amendments in the octroi schedule did not continue to remain effective law even after the repeal of the Ordinance on the strength of section 120 of the Sindh Local Government Ordinance of 1979, it being not inconsistent with the provisions of the latter Ordinance?
(2) Whether the sanction accorded by the Commissioner in exercise of authority competently possessed approving the revised schedule on 13-7-1979 was not protected and saved notwithstanding the publication of the approved schedule ten months later on 10-5-1980 when Sindh Local Government Ordinance, 1972 stood repealed?
(3) Whether an action duly commenced under the provisions of the Sindh Local Government Ordinance, 1972 could be concluded under that Ordinance or had to be revived ab initio and commenced over again under the Sindh Local Government Ordinance, 1979?
2. The facts to be noted are that appellant is a Town Committee originally constituted under 'the Sindh People's Local Government Ordinance 1972, hereinafter referred to as the Ordinance of 1972. It seems that the appellants were recovering octroi inter alia from respondents Nos.1 and 2 on the basis of Schedule of 1974. It further seems that the appellants initiated revision of the Schedule under the West Pakistan Local Councils (Imposition of Taxes) Rules, 1961, inasmuch as proposal was advertised, through public notice and objections were invited. The appellants, after hearing the objections inter alia filed by respondents Nos.1 and 2, finalised the proposal and submitted the same to the Commissioner, who was exercising the powers of a delegatee of the Provincial Government by virtue of delegation of powers under section 93 of Ordinance of 1972. The Commissioner accorded his approval to the above revision of the Schedule on 15-7-1979. After that the Schedule was sent for gazetting the notification, which was published on 10-5-1980. It appears that before the publication of the Gazette on the above date, Ordinance of 1972 was repealed and new Ordinance, namely, the Sindh Local Government Ordinance, 1979 Nos. 1 and 2 filed the aforesaid petition, which was taken up by a Division Bench of the Sindh High Court alongwith a number of other connected petitions relating to various other Town Committees and Union Councils, in which also the levy of octroi was impugned. The learned Judges of the Division Bench by a common judgment under appeal, disposed of all the petitions including the respondents Nos.1 and 2's above petition, which was allowed in the above terms. Thereupon, the appellant filed a petition for leave, which was granted to consider the above questions.
3. In support of the above appeal, Mr. Shahenshah Hussain, learned A.S.C. Appearing for the appellant, has vehemently contended that by virtue of section 120 of the Ordinance of 1979, the actions/proceedings initiated under the Ordinance of 1972 for revision of schedule relating to octroi culminating in according of approval by the Commissioner on 15-7-1979 as the delegatee of the Provincial Government, were saved and, therefore, publication of the notification after the enforcement of Ordinance of 1979 with effect from 25-7-1979, was of no consequence and hence the High Court has committed error of law in holding otherwise.
On the other hand, Mr. K.A. Wahab, learned A.O.R. Appearing for respondents Nos.1 and 2, has urged that since there was no delegation of powers by the Provincial Government under section 106 of Ordinance of 1979, the approval accorded' by the Commissioner on 15-7-1979 pursuant to the power delegated to him by the Provincial Government under section 93 of Ordinance of 1972, was not valid as there should have been a fresh delegation of power.
4. In furtherance of his above submission, Mr. Shahenshah Hussain has invited our attention to section 120 of Ordinance of 1979. It may be observed that subsection (1) of above section repealed Ordinance of 1972. However, subsection (2) thereof provided saving with non obstinate clause by providing notwithstanding the repeal of the enactment under subsection (1) the matters referred to in clauses (a) and (b) were saved. It may be pointed out that clause (a) provides as follows:-- "(a) everything, done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding commenced, person appointed or authorized, 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, authorized, conferred, granted, made or issued under this Ordinance;"
Whereas clause (b) lays down as follows:- "(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 Administrator or official of such council or make any other arrangement for running of the affairs of the council."
5. It has been urged by Mr. Shahenshah Hussain on the basis of above clause (a) of subsection (2) read with clause (b) that everything done, action taken, inquiry or proceeding commenced, were saved and so also the person appointed -or authorized, jurisdiction or power conferred, in the absence of any inconsistent provision in the Ordinance of 1979. To re-inforce the above argument, he has pointed out that there is no inconsistency between the provisions of Ordinance of 1972 and the Ordinance of 1979, as both contain more or less identical provisions as to the power of imposition of taxes including octroi. In this regard, he has invited our attention to the following sections of the above two Ordinances, which correspond each other:-- Ordinance of 1972 Ordinance of 1979 Section 71. Power to levy taxes rates tolls and fee with the previous sanction of the Provincial Government.Section 60 subsections (1) and (2) Power to levy taxes rates tolls and fee with the previous sanction of the Provincial Government.
Section 72: Publication of notification in the official Gazette. Section 60 subsections (3) and (4) Publication of notification in the official Gazette.
Section 93. Section 106.
Delegations of power by the Government Delegation of power by the government
6. We have gone through the above provisions of the two Ordinances and we find that there is no inconsistency between the two as to exclude the saving under above clauses (a) and (b) of subsection (2) of section 120 of Ordinance, 1979. We also find that prior to the framing of the Sindh Councils (Imposition of Taxes Rules, 1979, hereinafter referred to as the Rules of 1979, which came into force on 18-6-1980, the Local Councils (Imposition of Taxes) Rules, 1961, hereinafter referred to as the Rules of 1961, framed under section 68 of the Basic Democracies Order, 1959, were in the field by virtue of saving by section 4 of Ordinance of 1972, which repealed the above Basic Democracies Order. The Rules of 1961 provided the procedure for imposition/revision of taxes, which was followed in the present case and which did not contain any provision which could be construed as inconsistent with the provisions of the Ordinance of 1979. It may be pointed out that in the present case, notification was gazetted on 10-5-1980 which was prior to the date of enforcement of the Rules of 1979.
7. Mr. Shahenshah Hussain-has referred to the following cases in support of his submission:--
(i) Messrs Bibojee Services Ltd. v. Government of N.-W.F.P. Through Secretary, Local Government and Rural Development Department and 3 others 1980 CLC 1437; in which the question before a Division Bench of the Peshawar High Court, was, whether the notification of 2-10-1969 empowering the Commissioner to accord previous sanction under the Basic Democracies Order, 1959, was saved by subsection (1) of N.-W.F.P. Local Government Ordinance, 1972, which repealed the former Order. It was held- that the notification remained operative as it was not inconsistent with the provisions of the aforesaid Ordinance of 1972, as section 84 of the same also authorizes the Provincial Government to delegate its Power.
(ii) The Queen v. Justices of the West Riding of Yorkshire 1876 (1) of Q.B.D. 220; In the above case, the notice for the imposition of a rate was issued by a Local Board of Health under Public Health Act, 1848. Before the notice had expired, the above Act was repealed by the Public Health Act, 1875. The question before the three learned `Judges of the Queen's Bench Division, who were hearing an appeal, was, whether the saving section containing the phrase `anything duly done' would cover the above notice. Though all the three learned Judges wrote separate opinions, but they were unanimous on the above question and held that the above notice for the levy of a rate was saved. Suffice to quote from the opinion of Cockburn, C.J., which reads as follows:-- "The question before us arises upon an appeal to quarter sessions against a rate made by the Local Board of Health of Elland. The Board intending to make a rate under the Public Health Act, 1848, and amending Acts, gave the notice required by those Acts. But, before the time had expired for making the rate in accordance with the notice, the Acts were repealed by the Public Health, Act, 1875. The Board, nevertheless, in ignorance of the passing of the Act, proceeded to make the rate which they had given notice of their intention to make, and it is as to the goodness of that rate that we have to decide. It is to be observed that the purposes of the rate are substantially the same under the new and the old Acts, and that the notices of intention to rate are also substantially the same, and it has not been disputed that the notice actually given, if it had been given under the new Act, would have been good. Then there is the saving clause excepting from the repeal things done. Although my mind has fluctuated during the argument, I am of opinion that the rate was well made, and that the quarter sessions ought to have entertained the appeal. If there had been no saving clause, the case would have presented a different aspect, but the notice of intention to rate was, I think, a `thing done' within the meaning of the saving clause.
(iii) Messrs Universal Imports Agency etc. v. The Chief Controller of Imports and Exports and others AIR 1961 SC 41; in which the facts were that the appellants had their business establishments in Pondicherry. By reason of Indo-French Agreement, dated 21-10-1954, the Government of India made the French Establishments (Application of Laws) Order (1954) under the Foreign Jurisdiction Act (1947) applying the Indian laws to Pondicherry, the effect of which was that the French Laws were repealed by the application of the Indian Laws in the same field occupied by the French Laws subject to a saving clause,, namely, paragraph 6 which inter alia included the saving of things done. The appellants finalized the import of certain goods from a foreign country prior to the application of the Indian Laws to Pondicherry. However, the goods arrived after the Indian Laws were made applicable. The appellants' consignments were confiscated by the Collector of Customs for want of valid import licence. The question before the Supreme Court was, whether the saving clause saved the above transaction. It may be pertinent to reproduce the saving clause, which reads as follows:-- "Unless otherwise specifically provided in the Schedule, all laws in force in the French Establishments immediately before the commencement of the Order, which correspond to enactments specified in the Schedule, shall ceased to have effect, save as respect things done or omitted to be done before such commencement."
The Indian Supreme Court allowed the appeal and quashed the order of confiscation passed by the Customs authorities and observed as follows:-- "(17) It is suggested that the phraseology of the saving clause of the English Statute and of the General Clauses Act of 1897 are of wider import than that of paragraph 6 of the Order and, therefore, the English decisions are not of any assistance in considering the scope of the saving clause of the Order. It is further stated that the English decisions apply only to a saving clause of an Act which repeals another but preserves the right created by the latter. We do not see any reason why the same construction cannot be placed upon the wording of paragraph 6 of the Order which is practically similar in terms as those found in the relevant saving clause of the English Statute and that of the General Clauses Act.
(18) Nor can we find any justification for the second criticism. In the instant case the legal position is exactly the same. By reason of the Indo-French Agreement the Government of India made the Order under the Foreign Jurisdiction Act applying the Indian Laws to Pondicherry. The effect of that Order was that the French Laws were repealed by the application of the Indian laws in the same field occupied by the French laws subject to a saving clause. The position is analogous to that of a statute repealing another with a saving clause. If the English decisions apply to the latter situation, we do not see how they do not apply to the former. In both the cases the pre-existing law continues to govern the things done Before a particular date. We, therefore, hold that the words 'things done' in paragraph 6 of the Order are comprehensive enough to take in a transaction effected before the merger, though some of its legal effects and consequences projected into the post-merger period.
(19) Now what was the inter-relation between the said `things done' and the act of import or bringing of the goods into India? The effect of the contracts under the pre-existing law was that the terms thereof could have been implemented without any customs bar placed against the import.
This Court had, in the context of Art. 286(1)(b) of the Constitution to consider the connotation .Of the words `in the course of export or import' in State of Travancore-Cochin v. Bombay Co. Ltd. 1952 SCMR 1112 : AIR 1952 SC 366. Patanjali Sastri, C.J. Described the nature of export sale thus at p.1118 (of SCR) : (at p.367 of AIR): `Such sales, must of necessity be put through by transporting the goods by rail or ship or both out of the territory of India, that is to say, by employing the machinery of export. A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction.'
The same principle has been restated by the learned Chief Justice in State of Travancore-Cochin v.
Shanmugha Vilas Cashew Nut Factory, (1954) SCR 53 : AIR 1953 SC 333. The learned Chief Justice stated at p.63 (of SLR) at p.336 of AIR thus: `The phrase `integrated activities' was used in the previous decision to denote that a sale, that is, a sale which occasions the export, cannot be dissociated from the export without which it cannot be effectuated and the sale and resultant export form parts of a single transaction."
On the other hand, Mr. K.A. Wahab, learned A.O.R. For the respondents, has referred to the following cases:--
(i) Ibrahim Khan, Administrator, Union Council, Balochabad, Tharparkar v. Mirpurkhas Sugar Mills Ltd. 1980 SCMR 263; in which this Court, while declining leave to appeal against the judgment of the Sindh High Court in which it was held that Deputy Commissioner under section 60 of the Ordinance of 1979 was not competent to sanction any tax proposal by a Union Council and, therefore, the levy was illegal, observed as follows:-- "Mr. Ibrahim Khan then referred us to the rules framed under Basic Democracies Order and to the Sindh People's Local Government Ordinance of 1972 and further submitted that the Deputy Commissioner was the delegatee of the Commissioner and therefore, on a proper construction of the relevant rules the petitioner was competent to levy Octroi. And, when we referred him to section 60 of the said Ordinance, he submitted that the rules framed under the earlier statutes including the Basic Democracies Order have been saved first by section 4 of the Sindh People's Local Government Ordinance 1972 and then by section 120 of the said Ordinance. These sections no doubt contain saving provisions about the rules framed under the repealed statutes. But, these sections expressly prescribe that rules made under any of the provisions of the repealed enactment would be saved only if they were not inconsistent with the repealing Ordinance. Now the Basic Democracies Order was repealed by the Sindh People's Local Government Ordinance, 1972 and this Ordinance in turn was repealed by the said Ordinance. And, as section 60 of the said Ordinance contains an express provision that tax proposals by a Union Council can only be levied `with the previous sanction of Government', it is clear that the rules on which Mr. Ibrahim Khan relies, are no longer in force, because they are inconsistent with the express provisions of section
60. We, therefore, agree with the view taken in the judgment under appeal and this petition is dismissed."
(ii) Thakker Damji Raghavji v. Jamiyatram Kapoorchand Modi and others AIR 1954 Sarashtra 77; In the above case a Division Bench of the Saurashtra High Court while, construing sections 6 and 8 of the General Clauses Act, 1897, held that when an Act is repealed it must be considered except as to transactions past and closed, as if it had never existed and that similarly if an Act gives a right to do anything such as the fixation of the standard rent by the Samiti, the thing to be done, if not completed before the-Act is repealed, must upon the repeal of the Act to be left in status quo.
8. The cases cited by Mr. Shahenshah Hussain particularly the above case of British jurisdiction, is directly on the point in issue in which it was held that even a notice for the levy of a rate which was issued under the repealed Act, was saved by the expression `things duly done'. In the present case, the proposal to revise the Schedule of Octroi was fully matured upon disposal of the objections from the public and according of approval by the Commissioner on 15-7-1979, only publication was to be done for effecting the enforcement in terms of section 72 of the Ordinance of 1972 read with Rule 7 of the Rules of 1961, which was done after the enforcement of Ordinance of 1979 with effect from 25-7-1979. Section 7 of the Sindh General Clauses Act, 1956, which corresponds to section 8 of the General Clauses Act, 1897, provides as follows: "7. (1) 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.
(2) Where any Central Act or an Act of Parliament repeals and re-enacts, with or without modifications, any provisions of a former enactment, then references in any West Pakistan enactment or instrument to the provision so repealed shall, unless -a .Different intention appears, be construed as reference to the provision so enacted."
By virtue of the above section in the notification in question, the Ordinance of 1972 shall be read as Ordinance of 1979. The saving provided in subsection (2) of 'section 120 of the Ordinance of 1979, is of wide import inasmuch as it covers everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding commenced. It also saved the orders issued under any provision of the repealed enactment and if not inconsistent with the provision of Ordinance of 1979.
We may also observe that even otherwise section 4 of the Sindh General Clauses Act, 1956 (which corresponds to section 6 of the General Clauses Act, 1897) inter alia saves anything duly done or suffered under the repealed Ordinance.
9. The judgment of the Supreme Court referred to by Mr. K.A. Wahab has no application to the present case inasmuch as there was inconsistency between the relevant rule relied upon and section 60 of the Ordinance of 1979 inasmuch as that under the former, the Commissioner or his delegatee was lo accord approval to a taxation proposal, whereas under section 60, the Provincial Government or its delegatee by virtue of section 106 thereof is to accord approval to a taxation proposal. The case of Indian jursidiction relied upon by Mr. K.A. Wahab i.e. Of Saurashtra High Court has no relevance to the present case inasmuch as the rent was not assessed by the time of the repeal of the relevant statute.
10. The upshot of the above discussion is that the judgment of the High Court cannot be sustained.
We would, therefore set aside the same and allow the appeal. However, there will be no order as to costs.