1. ' SALEEM AKHTAR, J.--The petitioner is engaged in the business of manufacturing and sale of white sugar. Its sugar mill is located in the territorial limits of Union Council, Baluchabad, Mirpurkhas Tharparkar District. The petitioner sells and exports sugar outside the Province of Sindh through railway wagons as well as trucks plying directly from its mill. Respondents Nos.1 and 4 started imposing and collecting export tax on all the sugar exported by the petitioner from the territorial limits of district Tharparkar out side the Province of Sindh. The petitioner protested against the imposition and recovery of export tax and relied upon the judgment passed by the High Court of Sindh in C.P.D. 523 of 1985 Mirpurkhas Sugar Mills Ltd. v. District Council, Tharparkar and others against the respondents. Respondent No,1, however, replied that by Sindh Local Government (Amendment and Rawangi Mahsool Validating) Ordinance 1989 (Ordinance 1 of 1989) dated 6-11- 1989 passed by respondent No, 2 `Rawangi Mahsool Tax' has been validated and they asserted that they would keep on charging the export tax even on goods exported outside the Province of Sindh.
2. Ordinance 1 of 1989 has been replaced by Sindh Local Government (Amendment and Rawangi Mahsool Validating) Act, 1989, Sindh Act H of 1990. The petitioner has challenged the vires of the Act to the extent that it validates levy of export tax or Rawangi Mahsool on any goods exported outside the Province of Sindh. In the counter-affidavit all the facts have been admitted and it has been pleaded that the judgment in Constitution Petition No, 523 of 1985 is subject to appeal before the Supreme Court. It was maintained that the export tax is neither illegal nor void. Likewise Act II of 1990 is also valid, legal and proper.
3. ' In this petition two questions are involved. Firstly whether Rawangi Mahsool Tax offends against Article 151 of the Constitution and secondly whether Act II of 1990 is ultra vires the Constitution and validation as contemplated by this Act can be given in respect of export tax levied on goods exported outside the Province of Sindh. So far the first question is concerned it has been decided in Kotri Association of Traders v. Government of Sindh 1982 CLC 1252 that the export or Rawangi Mahsool Tax is void to the extent it imposes such tax on export from one province to another province. Mr. Khalid M. Ishaque has contended that export tax is a tax on commerce within a province not directed to inter-provincial trade. To this extent there is no conflict between the parties. If the tax is not imposed on the export made from one province to another, it will be valid.
4. The learned counsel then contended that export tax in fact facilitates inter-provincial trade as the District Council provides facility for transportaton and other facilities and can not be construed as restriction.
5. ' Article 151 (1) Subject to clause (2), trade, commerce and intercourse throughout Pakistan shall be free.
(2) Majlis-e-Shoora (Parliament) may by law impose such restrictions on the freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan as may be required in the public interest.
(3) A Provincial Assembly or a Provincial Government shall not have power to-
(a) 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
(b) impose a tax which, as between goods manufactured or produced in the Province and similar goods not so manufactured or produced, discriminates in favour of the former goods or which, in the case of goods manufactured or produced outside the Province discriminates between goods manufactured or produced in any area in Pakistan and similar goods manufactured or produced in any other area in Pakistan.
(4) An Act of a Provincial Assembly which imposes any reasonable restriction in the interest of public health, 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 shall not, if it was made with the consent of the President, be invalid."
6. The inter-provincial trade and commerce has been declared to be carried on freely, unrestricted and unhampered except restrictions imposed by law made by Parliament in the public interest.
7. The Provincial Assembly or Provincial Government is prohibited from making any law or taking any executive action imposing any restriction or prohibition on free flow of trade between the provinces. The Provincial Assembly can legislate imposing reasonable restriction only in the interest of public or of morality or for protecting animals or plants or meeting the shortage in the Province of any essential commodity but even for making such laws it has to take consent of the President otherwise it will be an invaid piece of legislation.
8. ' The judgment in Kotri Trade Association's case was followed in C.P.D. 523 of 1985 Mirpurkhas Sugar Mills Limited v. District Council, Tharparkar and others. The object of. Article 151 is to develop inter- provincial trade and commerce. It guarantees free flow of such trade which can be restricted in a limited manner in a larger public interest. In Indian Constitution Articles 301, 302, 303, 304 and 305 embody the rule contained in Article 151 of our Constitution. These Articles were considered by the Supreme Court of India in the Indian Cement and others v. State of Andhra Pradesh and others AIR 1988 SC 567 referred by Mr. Khalid Ishaq, where it was observed:- "The true purpose of the provisions contained in Part XIII of the Constitution, as elucidated in the different decisions of the Constitution Benches, is that the restriction provided for in Art. 301 can within the ambit be limited by law made by the Parliament and the State Legislature. No power is vested in the executive authority to act in any manner which affects or hinders the very essence and thesis contained in the scheme of Part XIII of the Constitution. It is equally clear that the declaration contained in Part XIII of the Constitution is against creation of economic barriers and/or pockets which would stand against the free flow of trade, commerce and intercourse."
9. "There can be no dispute that taxation is a deterrent against free flow. As a result of favourable or unfavourable treatment by way of taxation, the course of flow of trade gets regulated either adversely or favourably. If the scheme which Part XIII guarantees has to be preserved in national interest, it is necessary that the provisions in the Article must be strictly complied with.
10. ' In Atiabari Tea Co. v. The State of Assam AIR 1961 SC 232 Gajendragadkar, J. Observed: ' In drafting the relevant Articles of Part XIII, the makers of the Constitution were fully conscious that economic unity was absolutely essential for the stability and progress of the federal polity which had been adopted by the Constitution for the governance of the country. Political freedom which had been won, and political unity which had been accomplished by the Constitution, had to be sustained and strengthened by the bond of economic unity. It was realised that in course of time, different political parties believing the different economic theories or ideologies may come in power in the several constituent units of the Union, and that may conceivably give rise to local and regional pulls and pressures in economic matters. Local or regional fears or apprehensions raised by local or regional problems may persuade the State legislatures to adopt, remedial measures intended solely for the protection of the regional interests without due regard to their effect on the economy of the nation as a whole. The object of Part XIII was to avoid such a possibility. Free movement and exchange of goods throughout the territory of India is essential for the economy of the nation and for sustaining and improving living standards of the country. The provision contained in Art. 301 guaranteeing the freedom of trade, commerce and intercourse is not a declaration of a mere platitude, or the expression of a pious hope of declaratory character; it is not also a mere statement of a Directive Principle of State Policy; it embodies and enshrines a principle of paramount importance that the economic unity of the country will provide the main sustaining force for the stability and progress of the political and cultural unity of the country."
11. ' Reference can also he made to The Automobile Transport (Rajisthan) Ltd. v. The State of Rajisthan AIR 1962 SC 1406 and State of Madras v. N.K.N. Mudhiar AIR 1969 SC 147.
12. Article -151 aims at free and unfettered inter-provincial trade, commerce and intercourse subject to such limited restrictions in public interest which the Parliament may by law impose. The freedom of trade throughout Pakistan 'has been ensured and guaranteed except the limitation as provided by Article 151(2) in public interest. Article 151 (3) further ensures such freedom by prohibiting the Provincial Assembly or a Provincial Government from making any law or taking any executive action which may hamper, obstruct or restrict the free flow of interprovincial trade and commerce.
13. The Provincial Assembly is also prohibited from imposing any tax which may discriminate between the goods manufactured in the C Province and not so manufactured and is thus favourable to the goods manufactured and produced in the province. Nor can any tax be imposed by the Provincial Assembly which may discriminate between the goods manufactured outside the province and any other area in Pakistan. Therefore no preference can be given to the goods manufactured in the province over the goods manufactured in any other area of Pakistan. No tax can be imposed by the Provincial Assembly which discriminates in favour of the goods produced in the province as against the goods produced in any area of Pakistan. Nor can a tax be so imposed as to discriminate between the goods produced and manufactured outside the province in any area of Pakistan. Article 151(4), however, permits the Provincial Assembly to make law imposing reasonable restrictions in public interest as specified therein with the consent of the President.
14. ' Mr. Khalid M. Ishaq contended that there is no absolute prohibition and if the tax imposed is to facilitate the trade and commerce by providing service it will not be violative of Article 151. Reliance has been placed on M/s. Khyber Electric Lamps Manufacturing Ltd. v. Chairman, District Council, Peshawar 1986 CLC 533. We may observe that we have not followed this judgment in C.P. D-523 of 1985 and taken a different view by following the Kotri Trade Association's case 1982 CLC 1252.
15. Furthermore we may observe that the restrictions, limitations, prohibition and permission in imposing a tax on inter-provincial trade and commerce are specifically mentioned in Article 151. It does not permit the Provincial Assembly to permit the imposition of tax affecting inter-provincial trade on the ground that it is intended to provide facilities or amenities which will improve the flow of trade. Even if such tax is in the larger interest of public as specified in Article 151 (4) it must have the consent of the President.
16. The learned counsel then contended that the impugned tax is not a restriction on trade. It is well settled that tax is a restriction on enjoyment of property and 'a deterrent against free flow' of trade.
17. Rawangi Mahsool has been imposed on goods leaving the petitioner's factory whether they are to be delivered within the province or outside the province. Thus even those goods which are bound for other provinces are subjected to this tax. So far the tax on goods bound for any place within the province is concerned there is no dispute about its validity. But in respect of goods which are destined for any other area in Pakistan the Rawangi Mahsool will fall within the prohibitions imposed by Article 151. In this regard we will refer to the observation of Wajihuddin Ahmed, J in C.P.No, D-523 of 1985 (Mirpurkhas Sugar Mills Limited v. District Council Tharparkar and others) as follows: "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 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."
18. Therefore in our view the imposition of Rawangi Mahsool Tax and its recovery in respect of goods of the petitioner bound for delivery outside the Province of Sindh within the territory of Pakistan are illegal and without jurisdiction.
19. ' It has been contended that the notification has been validated by section 3 of the Sindh Local Government (Amendment and Rawangi Mahsool Validating) Act, 1989 (Act II of 1990) which reads as follows: 3."Notwithstanding anything contained in the said Ordinance, the rules thereunder or any judgment, order or decree of any Court --
(a) the Government of Sindh, Housing, Town Planning, Local Government and Rural Development Department Notification No, SOV/DC-V(7) of 1985. Pt. I, dated the 12th June, 1986, authorizing the levy of Rawangi Mahsool on certain commodities shall always be deemed to have been validly issued and enforced and taken effect accordingly but in the case of District Council, Hyderabad and the District Council, Nawabshah it shall be deemed to have taken effect on and from the Ist day of September, 1983 and the 19th day of May, 1984, respectively
(b) the Rawangi Mahsool levied, assessed, charged, collected or realized by a District Council in pursuance of the said notification shall always be deemed to have been validly levied, assessed, charged, collected or realized."
20. ' From the provision of this Act it seems that the Provincial Assembly has validated the levy of Rawangi Mahsool by notification dated 12th June, 1986 notwithstanding anything contained in the Sindh Local Government Ordinance 1979, the rules or any judgment order or decree of the Court. It intends to validate the said notification in spite of the fact that such notification has been declared illegal by a judgment, order or decree of a Court or that it is not in accordance with the provisions of the Ordinance itself. A legislature is empowered to make laws within the specified frame work outlined by the Constitution. The limitations and the exent of such power are clearly defined in the Constitution and any law made by legislature which offends against the provisions of Constitution will be void. The power of making law validating any statute, rule or action rests in the legislature provided such law does not come in conflict with the provisions of the Constitution. If any notification has been issued in violation of any Ordinance or Act but is not hit by any provision of the Constitution the legislature will be competent to validate it. It is possible that the judgment of a Court may declare any notification to be invalid but so long it does not offend the Constitution the same can be validated by the legislature notwithstanding the judgment. We have observed a growing tendency that whenever any judgment is pronounced declaring any action illegal and void or any provision of Act ultra vires a law is made to validate it notwithstanding that judgment.
21. The proper course for legislature is to first apply its mind to the lacuna and illegality pointed out by the judgment and then try to remove it by making proper law and if necessary may even validate the previous act. But even this power cannot be exercised where the Court points out that a provision in a statute, notification or action is ultra vires the Constitution. The legislature is not supreme to the Constitution. Constitution is the authority behind the legislature which controls and governs the power and jurisdiction of such legislature. Therefore any Act or Ordinance which validates any law, notification or action which is ultra vires the Constitution will also be ultra vires as the legislature cannot impose by law or validate by law which is against the provisions of the Constitution. Therefore in our view the provisions of Act II of 1990 in so far they validate the levy, assessm ent, charge and collection or realization of Rawangi Mahsool Tax in respect of goods exported outside the Province of Sindh to any area in Pakistan is ultra vires the Constitution and cannot give validity to the Notification dated 12th June 1986 to that extent. We may point out that notice was issued to the Government of Sindh and the Advocate-General Sindh but no one appeared on the date of hearing.
22. ' The question arises how it should be determined that the goods are destined for any other province or within the province itself. It is difficult to make such determination as mere declaration by the petitioner may not be sufficient to prove it. Therefore to avoid such difficulty and to provide sufficient safeguard to the petitioner or similar parties exporting goods to other provinces some scheme has to be devised so that the interest of both the parties may not suffer. In this regard reference has been made to District Council (Export Tax) Rules, 1976. Rules 17, 18 and 19 provide the method of assessm ent of the Export Tax. Rule 20 provides that if there is any doubt or dispute about the assessm ent of any goods or the liabilities of any goods to tax, the tax shall be paid according to the demand of the clerk and the person aggrieved may appeal to the Taxation Officer within 10 days. This procedure may be available to the petitioner for obtaining refund till such time a proper rule in this regard is not made as pointed out in the judgment passed in Petition No, 523 of 1985. However so far no such step has been taken by the Provincial Government or respondent No,1.
23. In these circumstances considering that the imposition of tax and Rawangi Mahsool on goods exported outside the Province of Sindh within an area in Pakistan is ultra vires the Constitution it may not be necessary for the petitioner to resort to the remedy as provided under the Rules which in our view should be restricted only to such taxes which are legal and valid. However till such time any proper rule is framed the petitioner may deposit the Rawangi Mahsool with respondent No,1 instead of its contractor and on production of proof that the goods have been exported outside territorial limits of Sindh to any other area of Pakistan, the Rawangi Mahsool so deposited with respondent No,1 shall be refunded to the petitioner. Subject to the aforestated observations we declare that the impugned notification dated 12-6-1986 and Section 3 of the Sindh Local Government (Amendment and Rawangi Mahsool Validating) Act, 1989 Sindh Act II of 1990 in so far they relate to levy, assessm ent, collection and recovery of Rawangi Mahsool on goods exported by the petitioner from the Province of Sindh to any area in Pakistan are ultra vires the Constitution and of no legal effect.