1. ' MUHAMMAD HUSSAIN ADIL KHATRI, J.---The petitioner who is proprietor of a rice mill situated in deh Khairpur Jagir Taluka Khairpur Nathan Shah, Dadu has assailed Notification dated 6-10-1988 whereby earlier notification dated 25-6-1987 was amended by the respondent No,1. The aforesaid mill was installed by the petitioner in the year 1986 on Survey Nos. 127/1 and 128/1.2, purchased under sale-deed dated 2-8-1986. Respondent No,1, the Town Committee Khairpur Nathan Shah, levied octori tax with effect from 1-7 1987 by Notification dated 6-6-1987, published in the Sindh Government Gazette on 25-6-1987, wherein its Octroi limits were also defined.
2. ' The contract for collection of octroi for the year 1987-88 was awarded by respondent No,1 to one Sabihuddin who attempted to charge Octroi on the goods imported within the rice mill of the petitioner. The petitioner filed Civil Suit in the Court of Civil Judge Khairpur Nathan Shah, against respondent No,1 and the said contractor, challenging the above attempt. The said suit was dismissed for non-prosecution.
3. ' In the subsequent year the contract for collection of octroi was awarded to respondent No,2. The petitioner has therefore filed this petition challenging the authority of the respondents to levy and collect Octroi on the goods imported in the rice mill on the plea that the orginal notification dated 26-6-1987 whereby the Octroi limits were prescribed, did not include the mill of the petitioner within the said limits but subsequently by notification dated 6-10-1988 the said mill has been included within such limits. It is contended that the aforesaid survey numbers, whereon the mill of the petitioner is situated, fall within the limits of Union Council Thalo, Taluka Khairpur Nathan Shah which comprises of rural area and therefore respondent No,1 had no jurisdiction to include it into the limits of Town Committee which comprises of Urban area. The learned counsel has contended that such power is vested in the Provincial Government under section 8 of the Sindh Local Government Ordinance, 1979.
4. ' To support his contention that the said mill falls within the said Union Council, he has placed reliance on the certificate issued by the Chairman of the Union Council Thalho, the sale-decd whereby the petitioner has acquired the land and the notification dated 22-10-1987 issued by the Provincial Election Authority under section 36 of the Ordinance read with Rule 10(2) of the Sindh Local Councils (Election) Rules, 1979, whereby the final list of constituencies (Electoral Units) of all the Councils of District Dadu were notified in the Gazette dated 20-10-1987.
5. ' The learned counsel of the respondents has contended that the mill of the petitioner is situated within the limits of respondent No,1. He has pointed out that in the aforesaid notification dated 22- 10-1987, while defining the electoral units of the town Committee the description of the local area is given Mohallawise and in the case of Union Councils Deh-wise. The petitioner has tried to confuse the issue by relying on the notification issued by the Provincial Election Authority which cannot be of any help for determining the location of Mill in either of the councils. According to him the survey numbers of the petitioner are located within the limits of respondent No,1 and form part of T.C.4 thereof. The land comprised in the Said survey numbers is not cultivable. The wells, quarters and drainage system of respondent Committee are situated in a part of land of the said Deh and to that extent it is situated within the limits of the respondent council. Maintainability of the petition has been challenged on the ground that alternate adequate remedy provided under the said Ordinance has not been availed by the petitioner. The learned counsel has contended that in the notification dated 6-6-1987 the mill was shown situated within the western boundary of the respondent No,1 and since the dispute was being raised, the clarification was made by notification dated 6-10-1988. In this regard he pointed out that previously the mill was commonly known as rice' mill of Amanullah Shaikh and Arab Shaikh. The said Amanu :all and Arab are the brothers of the present petitioner. When the petitioner acquired the property it came to be known as mill of Shahnawaz Shaikh brotheRs, To further clarify the position the word "including" was used while defining the western boundary. Due to typographical mistake instead of "rice", word "ice" was printed in the notification dated 6-10-1988 which necessitated issuance of another notification dated 10-1-1989 providing to read "ice mill" as "Rice Mill". It was further contended that in case the mill of the petitioner is situated within the limits of Union Council Thalho, he would have been charged octroi by the said council.
6. ' In the notification issued by the Provincial Election Authority, Deh Khairpur Jagir is shown as electoral Unit No,1 of the Union Council Thalho and in the certificate issued by the Chairman of the said Council also, the petitioner's Mill is claimed to be situated within the limits of the said Council.
7. But the sale-deed produced by the petitioner shows that the plot of land purchased by the petitioner is a sikni plot, and is described as under:-- "Plot situated adjacent Mir Hassan Road, Taluka and City Khairpur Nathan Shah, Plot Survey Nos.27/1 and 28/1.2, from Deh Khairpur Jagir" . ' and is shown as bounded on west by Plot of Ghulam Rasool Shaikh North by Mir Hassan Road, East by Drainage and Government Wells and South by Peel plot.
8. ' The above details of the plot prima facie show that the Mill is situated within the limits of Respondent No,1.
9. ' Subsection (1) of section 8 of the said Ordinance provides that the 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 Urban or Rural as the case may be.
10. Subsection (2) of section 8 of the said Ordinance provides that all the areas within the jurisdiction of a Town Committee, Municipal Committee, Corporation, K.DA. Cantonment Board and K.P.T. At the time of coming into force of the Ordinance shall be deemed to be Urban areas. The bare reading thereof leads to the conclusion that all such areas as are not included in subsection (2) of section 8 of the Ordinance, are conversely to be deemed to be rural areas.
11. ' Section 9 of the Ordinance, empowers the Government to declare by notification, any Urban area other than the area of Cantonment Board as a town, a Municipality, or a city. Section 10 provides that, as soon as may be, in Urban area, a Town Committee, a Municipal Committee and a Corporation shall be constituted for each town, municipality and City respectively and in rural area Union Council for each Union and a District Council for each District.
12. Thus all the Councils, Urban as well as Rural, are constituted by the Provincial Government. It is after constitution of the Councils that Election Authority delimits 'a local area into single or multi- member electoral units or both. As provided by section 3(34) of the Ordinance the term "local area" means an area which lies within the jurisdiction or limits of a council. The Election Authority does not delimit or determine the local area comprised in any council, but only determines the electoral units within the framework of a local area comprise in a Council. The Election units in local area of Unions are termed as U.C. And in case of committees as T.C. As noted above, according to petitioner the survey numbers, where his Mill is located, are situated in Deh Khairpur Jagir which forms U.C.1 of Union Council Thalho and according to respondent No,1 it is part of T.C.4.
13. ' Notification dated 22-10-1987 confirms the respondents' submission to the effect that in case of Unions, Electoral Units are discribed by name of Dehs and that of Committees by Mohallas and some times by boundaries also. The possibility that some part of Dch Khairpur Jagir may be within the local area of respondent No,1's T.C.4 cannot be ruled out, particularly so, when sale-deed itself states that the said survey numbers are situated in the City of Khairpur Nathan Shah.
14. The said tactual controversy could have been resolved if the parties had produced the notification issued under section 9 of the Ordinance, or placed material on record to show whether, the said area was Urban at the time of promulgation of the said Ordinance in terms of Section 8 (2). But this has not been done and we in exercise of extraordinary Constitutional jurisdiction cannot enter into the above disputed questions of fact.
15. If the above dispute is looked at in its correct perspective, is one between the two rival councils, the respondent No,1 and Union Council Thalho. The said Union is not a party in this petition and therefore it will not be proper to adjudicate on the subject. Additionally, section 91 of the Ordinance specifically provides that if any dispute arises between two or more councils, the matter shall be referred to Government and its decision shall be final and binding on the councils.
16. ' It is for the said councils to agitate the dispute before the proper forum for decision. If they fail to do so, the petitioner may seek remedy as provided by section 66 of the said Ordinance, read with rule 48 of the Sindh Octroi Rules, 1964.
17. ' This petition is, therefore, dismissed with no order as to costs.