SHAFIUR RAHMAN, J.---Leave to appeal was granted to the Government of Balochistan and 3others to examine whether the Notification dated 2-7-1962 imposing import duty/tax under the provisions of the Basic Democracies Order, 1959 was inconsistent with the subsequent legislation and hence of no legal effect to sustain the demand and the recovery of the tax from the respondent/writ petitioner.
2. The respondent/writ petitioner was engaged in the business of ship: breaking in the area of Gaddani in Union Council, Hub. He was granted an import licence against which he purchased a vessel known as "m.v. SPICA" which arrived at outer anchorage of the Karachi port on 24-5-1979 and from there it was taken to Gaddani on 26-5-1979. The import tax/duty of Rs,6,73,190 and sales tax of Rs,1,64,452 was assessed, levied and paid by the importer. The scrapping, dismantling and the ship-breaking activities were undertaken. Dad Muhammad Lasi (respondent No,2) who had in the meantime successfully bid for the collection of the octroi on behalf of the Hub Town Committee for the financial year commencing 1-7-1979, served a notice of demand on the writ petitioner/respondent No,1 for payment of import tax at the rate of 1/2 per cent of the value of the ship within 15 days. Chief Officer of the Hub Local Council also served him a notice dated 12-12-1979 to the same effect. In this background, the respondent No,1 instituted a Constitution Petition (C.P.290/79) in the High Court of Balochistan challenging the demand. The Grounds taken up for challenging the demand are enumerated ad seriatum hereunder, extracted from the Constitution Petition:- "(i) By levying Import Duty on the Import value of the vessel the Respondents have transgressed in the field of Federal Legislature who could exclusively legislate in respect of matters enumerated at serial Nos.24, 27, 43, 53 and 59 of the list of Part 1 of the Fourth Schedule of the present Constitution of the Islamic Republic of Pakistan.
(ii) That if the Petitioners are made to pay an Import Tax, it will amount to double taxation as Import duty has already been paid on the Import value of the vessel in question.
(iii) The vessel imported by the Petitioner is only scrapped at Gaddani, it is neither used, consumed nor sold at Gaddani within the limits of Hub. Hence no import tax can be levied on it even if it is presumed that such an import tax is leviable.
(iv) That there exists no local council in Hub nor does there exist any office of the Chief Officer Hub; hence the demand itself made by the so-called Chief Officer of the Local Council Hub is illegal and ultra vires.
(v) That the demand of the Import Tax by the Respondent No,3 is bad in law and inconsistent with the provisions of the Balochistan Local Government Act, 1975 as the Respondent No,3 has no powers to demand the said Import Tax under the aforementioned Act.
(vi) That the orders of the Respondent No,2 empowering and authorising the Respondent No,4 to collect Import Tax is illegal and ultra vires as there exists no provision under the Balochistan Local Government Act, 1975, under which the Respondent No,2 can auction the rights for the collection of such a tax and leave it to the Respondent No,4 to charge any rates the said Respondent so chooses.
(vii) That the vessel mv. SPICA was imported and beached at Gaddani on 26-5-1979 before the contract was given to the Respondent No,4 for collection of Taxes. In fact the Respondent No,4 has been specifically asked by the Respondent No,2 to collect Import Tax for the period beginning from 1st July, 1979 to 30th June, 1980 the vessels having been imported before the Respondent No,4 was authorised or empowered to collect the said tax he has no right to ask or demand the collection of import tax for the vessel which was imported before he was appointed."
3. This Constitution Petition was contested by the appellants and came to be disposed of alongwith a number of other similar Petitions by the impugned judgment on 15th of July, 1981. The High Court, by the impugned judgment, came to the conclusions as hereunder:-- "(i) The import and export across Customs frontiers is within the jurisdiction of the Federal Government. But the coptention that the respondent cannot demand the import tax on the goods for use, consumption or sale is untenable.
(ii) It does not amount to double taxation, otherwise the imposition of octroi duty on the goods imported in the city would also be hit by term 'double taxation'.
(iii) ... a Union Council is not empowered to levy such tax. Under section 144 all taxes levied by a Local Council shall be notified, unless otherwise directed by a Government. The Notification dated 2-7-1962 talks of import tax whereas the Ordinance I of 1972, Ordinance XII of 1975 and Act XII of 1975 and Ordinance IX of 1979 provide taxes on the import and export of goods for use, consumption and sale. If any goods are neither used, nor consumed nor sold in the Local Council, then by no stretch of imagination it can be urged that a Union Council can impose tax under the aforesaid laws.
(iv) It is also clear that the previous notification dated 2-7-1962 also is inconsistent with the subsequent legislation, and therefore, it was not saved by the successor laws.
(v) There is another formidable objection that Hub was Union Council under B.D.O., 1959 but under Ordinance XII of 1972 the Union Council was abolished, therefore, the body which was not in existence could not impose tax."
The High Court summarised its findings as hereunder:-- "In conclusion the Notification dated 2-7-1962 issued under the provisions of B.D.O., 1959 was inconsistent for the following reasons:-- In the case under B.D.O. The Notification could be issued by the Commissioner, but under the subsequent laws the sanction of the Government was necessary.
(ii) Under Ordinance I of 1972, Act XII of 1975 and Ordinance IX of 1979, all taxes levied by a Local Council shall be notified, and shall unless otherwise directed by the Government, be subject. To the previous publication.
(iii) The successor Local Councils under Act XII of 1979 had no authority to impose such tax. The Zilla Council the successor of the District Council under Act XII of 1975 could not impose such tax. Under Ordinance IX of 1979 Tehsil Council, Town Committee, Municipal Committee and Municipal Corporation could impose such tax, and therefore, Hub Local Council could not impose such tax.
(iv) The Hub and Gaddani have been made Town Committees on 31-3-1980 and throrgh separate notification no tax in accordance with law has been imposed by these Town Committees. The Notification No, D.L./490/79-80/1634-36 dated 30-6-1979 could not be issued by the Deputy Commissioner, either under Ordinance I of 1972 or Act. XII of 1975.
The Balochistan Local Government Ordinance, 1980 (Ordinance II of 1980) came into force on 21-2- 1980. Under section 4(1) of this Ordinance, Ordinance IX of 1979 was repealed and under section 4(2) of this Ordinance the tax imposed under Act XII of 1975 was saved, if it is not inconsistent with the provisions of this Ordinance, but as we have already held that the tax in question has not been saved under Act XII of 1975 and Ordinance IX of 1979, therefore, the saving provision of Ordinance 1980 cannot apply to the facts of the present case."
4. The notification by which the import tax was imposed in 1962, had the following content relevant to this case:-- "No,24-BD.---In exercise of powers conferred on it under clause (1) of Article 60 of the Basic Democracies Order, 1959, the Union Council Hub of Lasbela District has imposed the following taxes within the jurisdiction which have been sanctioned by the Collector, Lasbela District by virtue of powers delegated to him by the Administrator, Karachi, --vide his Notification No,F.1(37)/60-BD, dated 5th April, 1961. These taxes are published for general information and shall come into force with effect from 1st July, 1962:-- Sr. No, Name of tax/fee Rate of tax/feePeriod or description xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
8. Import tax Rs,0.50 Per import of Rs,100 value.
The relevant clause (1) of Article 60 of the Basic Democracies Order, 1959 provided as hereunder:- "A District Council, with the previous sanction of the Government, and a Union Council with the previous sanction of the Commissioner, may levy, in the prescribed manner, all or any of the taxes, rates, tolls, and fees mentioned in the Fifth Schedule."
In the Fifth Schedule the relevant entry reads as hereunder:-- "TAXES, RATES, TOLLS AND FEEDS WHICH MAY BE LEVIED BY DISTRICT AND UNION COUNCILS (See Section 60) xxxx xxxx
5. Tax on the import of goods for consumption, use or sale in a local area."
5. Balochistan People's Local Government Ordinance, 1972 (Ordinance I of 1972) was enacted on 12th of February, 1972 and sections 3 and 4 thereof have to be noted. These read as hereunder:-- "3. Repeals and Savings.--(1) On the coming into force of this Ordinance the following enactments shall stand repealed;--
(i) Basic Democracies Order, 1959 (President's Order XVIII bf 1959).
(ii) The Municipal Administration Ordinance, 1960 (Ordinance X of 1960):
(2) Where an enactment stands repealed under subsection (1), any appointment, rule, regulation, scheme or by-law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance, be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance until Superseded under this Ordinance.
4 Succession.--(1) All local bodies established under any of the enactments repeated under this Ordinance shall be substituted:--
(a) In the case of Union Councils, Tehsil Councils and District Councils, by the People's District Councils of the District concerned;
(b) In the case of Municipal Committee, by the respective People's Municipal Committees; and
(c) In the case of Town Committees, by the respective People's Town Committees.
(2) All property and assets, which immediately before the coming into force of this Ordinance were vested in the local body or bodies constituted under the laws repealed under section 3, shall vest in their successor People's Local Councils, and the rights, liabilities and obligations of such local body or bodies shall be the rights, liabilities and obligations of the successor People's Local Councils.
(3) The Divisional Councils established under any of the enactments repealed under this Ordinance shall stand dissolved and the property and assets vesting in such Divisional Councils shall vest in the Government and all right, liabilities and obligations of the Divisional Councils shall be the rights, liabilities and obligations of the Government.
(4) The proceeds of all taxes and other revenues payable in accordance with the laws, rules, or bye-laws in force immediately before the coming into force of this Ordinance, to the local fund of a local body or bodies, shall continue to be payable to the respective local funds of the successor People's Local Council."
Sections 63 and 64 of Ordinance I of 1972 provided as hereunder:-- "63. Taxes to be levied. --(1) A People's Local Council may, with the previous sanction of the Government, levy in the prescribed manner, all or any of the taxes and rates, mentioned in the Third Schedule.
(2) Notwithstanding anything contained in subsection (1) no tax on annual letting value of building and land shall be levied on buildings and lands, or portion thereof, exclusively used for public worship, charitable purposes, educational institutions, burial and burning grounds and no water rate or conservancy rate shall be charged on buildings and lands situated in any part of the local area, where the People's Local Council have no arrangements for supplying water, or for the removal of refuse and sullage, as the case may be.
64. Enforcement of taxes. --All taxes and rates levied by a People's Local Council shall be levied in the prescribed manner."
6. "Peoples Local Council" has been defined in clause (44) of section 2 of Ordinance No,I of 1972 as hereunder:-- "People's Local Council means People's Local Council constituted under this Ordinance, and means People's District Council, the People's Municipal Committee and the People's Town Committees."
Corresponding entry in the Fourth Schedule (item No,4) reads as hereunder:-- "Taxes, Rates, Tolls and fees which may be levied by People's Local Councils X X X XX XX X X X
4. Tax on the import of goods for consumptions, use or sale in a local area. xxxxxxxx x"
7. In the Balochistan Local Government Act, 1975 (Act XII of 1975), the Halqa Councils were authorised under the Second Schedule (Part II item 13) to impose "tax on the import of goods and animals for consumption, use or, sale". Section 138 of Act XII of 1975 provides that "a Local Council subject to the provision of any other law may, and if directed by the Government, shall levy all or any of the taxes enumerated in the second"schedule". Sections 4, 5 and 6 of the Act XII of 14975 read as hereunder:-- "4. Savings.--Where an enactment stands repealed under section 233, any appointment, rules, .
Regulations or bye-laws made or saved, notification, order or notice issued, tax imposed or assessed, scheme prepared or executed, contract entered into, suit instituted, rights acquired, claims made, legal or administrative proceedings or actions taken under such enactments, shall so far as it is not inconsistent with the provisions of this Act, be deemed to 'have been respectively made, saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired, made or taken under this Act.
5. Act to override other law. /u>--The provisions of this Act shall take effect notwithstanding anything inconsistent therewith contained in any other law.
6. Succession.--(1) A Zila Council shall be the successor of such District Council, constituted under Balochistan People's Local Government Ordinance, 1972 as may fall within the jurisdiction of Zila.
(2) A Municipal Committee or a Town Committee shall be the successor of such a Municipal Committee or a Town Committee constituted under the Balochistan People's Local Government Ordinance, 1972 as may fall within the jurisdiction of the Municipal or Town Committee, as the case may be."
8; There are two very important sections in Act XII of 1975 which deserved the attention of the learned counsel for both the parties and also of the Court deciding the matter but remained unnoticed by everyone.
These are sections 233 and 234 which are reproduced in extenso, as hereunder:-- "233. Interim authorities and Interim maintenance of Institutions.- -(1) In any area within the jurisdiction of a Local Council or a Local Body as defined in the repealed enactments in which the provisions of this Act are brought into force but a Local Council is not constituted or a Local Council constituted under this Act has been dissolved, then notwithstanding anything contained in this Act, Government may, by order, empower a person or persons to perform all or any of the functions of such Local Council or Local Body as had jurisdiction therein immediately before such enforcement or dissolution, as the case may be, or such functions of a Local Council under this Act as may be specified in the order, until a Local Council for the area assumes office in accordance with the provisions of this Act.
(2) Where on the enforcement of this Act in any area, any service undertaken or institution maintained by the Government is required under any of the provisions of this Act to be compulsorily undertaken or maintained by a Local Council, such service or institution shall, notwithstanding anything contained in this Act, continue to be undertaken or maintained by the Government until the management thereof is duly transferred to the Local Council.
234. Validation of certain orders, proceedings and acts and continuance of functions of certain authorities and officers.-- (1) All orders made,, proceedings taken and acts done by any authority or by any person which were made, taken or done, or purported to have been been made, taken or done, in exercise of the powers derived under any law or the repealed enactments, notifications, rules, orders or by-laws made thereunder shall be deemed to have been validly made, taken or done.
(2) Notwithstanding anything contained in this Act, all authorities and all officers who immediately before the enforcement of this Act were exercising functions of Local Councils under the repealed enactments or any other law shall continue to exercise their respective functions till the Local Councils are constituted under this Act; provided Government may withdraw all or any of the functions from such authorities or officers as it may deem necessary."
9. The Balochistan Local Government Ordinance, 1979 (Ordinance IX of 1979) also contained provisions of 'Saving in section 4 of 'Ordinance to override other laws in section 5 and of 'succession in section 6, as hereunder:-- "4. Savings.--Where an enactment stands repealed under section 242, any appointment, rules, regulations or bye-laws made or saved, notification, order or notice issued, tax imposed or assessed, scheme prepared or executed, contract entered into, suit instituted, rights acquired, claims made, legal or administrative proceedings or action taken under the Balochistan Local Government Act, 1975 (XII of 1975), shall so far as it is not inconsistent with the provisions of this Ordinance, be deemed to have been respectively made, saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired, made or taken under this Ordinance.
5. Ordinance to override other laws. --The provisions of this Ordinance shall take effect notwithstanding anything inconsistent therewith contained in any other law.
6. Succession.--(1) A District Council shall be the successor of such District Councils which may have been constituted under the Balochistan Local Government Act, 1975 hereinafter referred to as Act XII, of 1975.
(2) A Municipal Committee or a Town Committee shall be successor of such a Municipal Committee or a Town Committee which may have been constituted under Act XII, of 1975."
10. It had provisions on 'interim authorities and interim maintenance of institutions in section 239 and 'validation of certain orders, proceedings and acts and continuance of functions of certain authorities and officers in sections 239 and 240, in the following words:- "239. Interim authorities and Interim maintenance of institutions.-- (1) In any area within the jurisdiction of a Local Council or a Local Body as defined in the repealed enactments in which the provisions of this Ordinance are brought into force but a Local Council is not constituted or a Local Council constituted under this Ordinance has been dissolved, then notwithstanding anything contained in this Ordinance, Government may, by order, empower a person or persons to perform all or any of the functions of such Local Council or Local, Body as had jurisdiction therein immediately before such enforcement or dissolution as the case may be, or such functions of a Local Council under this Ordinance as may be specified in the order, until, Local Council for the area assumes office in accordance with the provisions of this Ordinance.
(2) Where on the enforcement of this Ordinance in any area, any service undertaken or institution maintained by the Government is required under any of the provisions of this Ordinance to be compulsorily undertaken or maintained by a Local Council, such service or institution shall, notwithstanding anything contained in this Ordinance, continue to be undertaken or maintained by the Government until the management thereof is duly transferred to the Local Council.
240. Validation of certain orders. Proceedings and acts and continuance of functions of certain authorities and officers.--(1) All orders made, proceedings taken and acts done by any authority or by any person which were made, taken or done, or purported to have been made, taken or done, in exercise of the powers derived under any law or the repealed enactments, notifications, rules, orders, or bye-laws made thereunder shall be deemed to have been validly made, taken or done.
(2) Notwithstanding anything contained in the Ordinance all authorities and all officers who immediately before the enforcement of this Ordinance were exercising functions of Local Councils under the repealed enactments or any other law shall continue to exercise their respective functions till the Local Councils are constituted under this Ordinance, provided Government may withdraw all or any of the functions from such authorities or officers as it may deem necessary."
11. We need not go to the Balochistan Local Government Ordinance, 1980 (Ordinance No,II of 1980) because the controversy had not arisen at the stage and the matter has to be decided by reference to Ordinance No,IX of 1979 and the previous laws which were in the field, on the subject.
12. The levy of the import tax by the Union Council Hub on 2-7-1962 was in accord with the law under which it had been imposed. Immediately on coming into force of Balochistan Ordinance No,I of 1972, the legal efficacy of this notification and imposition was held to have disappeared because of an inconsistency in so far as the sanctioning authority was concerned which came to be under the latter Act, 'the Government instead of the Commissioner or the Collector as the delegate. This view is untenable for two reasons.
Firstly, it does not give the correct meaning to the word 'inconsistency which has been made decisive for the purpose. In 'Black's Law Dictionary', `inconsistentlas been defined as "mutually repugnant or contradictory; contrary, the one to the other, so that both cannot stand, but the acceptance or 'establishment of the one implies the abrogation or abandonment of the other....". In Venkataramaiya's Law Lexicon, the word "inconsistency" has been defined as hereunder:-- "'Inconsistency.- -The word 'inconsistency implies antagonism, opposition, repugnance.
'Inconsistence is a word of broad signification, implying contradiction, qualities which cannot co- exist, not merely a lack of uniformity in details and judicially defined as meaning contradictory, inharmonious, logically incompatible, contrary, the one to the other, so that both cannot stand, mutually repugnant or contradictory. Things are said to be inconsistent when they are contrary the one to the other, or, so that one infers the negation, destruction, or falsity of the other. The term has been compared with `incompatible'. (42 C.J.S.541, 542).
Inconsistent means 'mutually repugnant or contradictory, contrary, the one implies the abrogation or abandonment of the other; as, in speaking of inconsistent defences or the repeal by a statute of all laws inconsistent herewith.--Berry v. City of Fort Worth-tax Civil Appeal 110 A.W. 21 at p.25 103)"
Inconsistency implies opposition, antagonism, repugnance. One definition of 'inconsistency given by the Lexicons is repugnance and one definition given of 'repugnance is inconsistency. These words, though not exactly synonymous, may be, and often are, used interchangeably, and such are their use in regard to statutes; as being inconsistent.--Words and Phrases, Parmament Ed., 10th, p.342; Premch and Jain v. Regional Transport Authority, Gwalior, 1977 M.P. L.J.94 at p.98 (F.B.).
Inconsistent.--A thing is said to be consistent if it is in conformity with or congruous with the other.
In other words, what is not inconsistent is consistent. The word 'inconsistency is used with reference to two laws, a stage where there is an impossibility of simultaneous operation of both laws. It signifies. The idea of incompatibility. In case, therefore, where two laws can exist side by side, one law cannot be said to be inconsistent with the other.--Smt. Chandra Rani v. Vikram Singh (1979) 5 A.L.R. 56 at p.83 (All.).
In Clyde Engineering Co. Ltd. v. Cowburn, (1926) 37 Com. W.L.R. 466, the learned Judge observed:- "When is a law 'inconsistent with another law? Etymologically, I presume that things are inconsistent when they cannot stand together at the same time; and one law is inconsistent with another law when the command or power or other provision in one law conflicts directly with the command or power or provision in the other. Where two Legislatures operate over the same territory and come into collision, it is necessary that one should prevail; but the necessity is confined to actual collision, as when one Legislature says `do and the other says `don't'." `According to Griffith, C.J., 'the test of inconsistency is, of course, whether a proposed act is consistent with obedience to both directions'. The opinion of the majority (Knox, C.J., and Gavan Duffy, J., with the concurrence of Isaacs, J.) was: "Two enactments may be inconsistent although obedience to each of them may be possible.
Without disobeying the other. Statutes may do more than impose duties; they may, for instance, confer rights; and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute which conferred it" -- Indian Oil Corporation v. C.D. Singh, (1972) 24 F.L.R. 372 at pp.382- 83."
13. The word 'inconsistency came up for consideration by this Court in Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 SC 197). In that case the decision in Arbitration between John Knight and Tabernacle Permanent Building Society [(1891) 6331 was relied upon for concluding that "inconsistency would result if the obligations imposed by the subsequent Act "would be so at variance with the machinery and procedure indicated by the previous Act that if that obligation were added, the machinery of the previous Act would not work".
14. The power of imposing the tax was possessed by the Union Council under both the laws. The sanctioning authority was different. In the first, the sanction of the Administrator or his delegate, the Collector, was required which had in fact been obtained while in the second, the sanction of the B Government was required. Such a procedural dissimilarity in the matter of sanction of the tax would not lead to inconsistency of the nature which may interrupt the continuance of the tax already levied in accordance with the law then applicable.
15. On the same limited connotation of the word "inconsistency" the requirement of publication of the notification in the Gazette or its prepublication of the Rules provided for in the latter statute and not appearing in the earlier one would not render the earlier notification inconsistent with the latter provision. The basic power of levying such a tax was not absent. That power being available, and the imposition being in accord with the law then in force and the inconsistency of the nature envisaged by law not in existence, the levy would certainly hold good.
16. As discussed above in paragraphs 8 and 9 both Act XII of 1975 and Ordinance IX of 1979 had a validation clause (section 234 in the former and section 240 in the latter). This preserved the efficacy of the earlier notifications and their continuance. Ordinance No,IX of 1979 permitted the Tehsil Councils and Town Committees to impose tax on the import of goods and animals for consumption, use or sale. The use of the ship for the purposes of ship-breaking was in fact a use which made it liable to import duty in terms of the law.
17. It is true that the levy of import duty relates to a period for which the collection rights had not been auctioned to the respondent. All the same, it appears that the Secretary of the Town Committee had also issued a notice o demand against the respondent liable to pay the tax and as its agent, the auctioneer could collect the tax on its behalf. The liability being not open to question under the law, the tax could not be avoided.
18. In view of the foregoing discussion, the appeal is allowed, the judgment of the High Court is set aside and the Constitution Petition filed by the respondent is dismissed. No order is made as to costs.