MIAN MUHAMMAD AJMAL KHAN, J.--The petitioner, M/s. Saif Nadeem Kawasaki Motors Limited through its Managing Director, by this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, has challenged the Notification No.I-2/65/DCA 8355-58 dated 18-6-1990 whereby Export Tax-was imposed, and its consequent recovery and realisation to be without lawful authority and of no legal effect and also s6ught a direction restraining the respondents from recovering the same and refunding the taxes already recovered. It was further sought that the imposition of tax of Rs.15 per motorcycle- as Education Cess is also without lawful authority and of no legal effect and that the money so recovered be refunded.
2. The petitioner company is manufacturing, assembling and selling Motor Cycles in its manufacturing and assembly plant established at Khalabat Township, Haripur, a notified Industrial Estate Area, under the name and Brand of Kawasaki and carry the same for sale/supply to the various parts of the country. The manufacturing plant of the company is situated in the limits of Khalabat Township Committee and lies within the limits of Municipality of Khalabat Township Committee.
3. The learned counsel for the petitioner contended that the Industrial Estate Area Khalabat Township does not fall within the limits of District Council, Abbottabad, therefore the District Council had no authority to impose any tax in the area. The notification No.l-2/65(86)/DCA/8355-58 dated 18-6-1990 issued by District Council Abbotabad, imposing, the tax on the export of Motor Cycle' at the' rate of Rs.100 per Motorcycle is contrary to law and without jurisdiction as no tax on the export of Motor Cycle could be levied and recovered from the petitioner company as the same is not located within the jurisdiction of the District Council, Abbottabad, but the same is situated within the territorial limits of Town Committee, Khalabat. He referred to sections 134, 135 and 136 of the N.- W.F.P. Local Government Ordinance, 1979 (Ordinance IV of 1979) (hereinafter called the Ordinance), which are reproduced hereunder:--
134. Taxes to be levied.--A Local Council subject to the provisions of any other law may, .And if directed by Government shall, levy all or any of the taxes enumerated in the Second Schedule.
135. Notification and Enforcement of taxes,--(1) All taxes levied by a Local Council shall be notified and shall, unless otherwise directed by Government, be subject to previous publication.
(2)Where a tax is levied or modified, the Local Council shall specify the date for the enforcement thereof, and such tax or the modification shall come into force on such date.
136. Model Tax Schedule. --Government may frame Model Tax Schedules and when such Schedules have been framed a Local Council shall be guided by them in levying a tax, rate, toll or fee."
They provide that the taxes enumerated in the Second Schedule, subject to any other law and if directed by the Government, can be levied by the Local Council. In item (7) of Part II of the Second Schedule, it is provided that fees for the export of goods and animals from the District, can be imposed by the District Council whereas Part III of the Schedule enumerates the taxes which can be imposed by the Municipal Corporations/Committees and Town Committees. The learned counsel contended .That under Article 77 of the Constitution of Islamic Republic of Pakistan no Tax can be levied for the purpose of Federation except by or under the authority of Act of Parliament. He also referred to Article 127 of the Constitution of Islamic Republic of Pakistan where Provincial Assembly has been vested with the same powers for the Province, which provides that no tax can be imposed in respect of the Provincial subject except by or under the authority of Provincial Act of Provincial Assembly. According to him the Local Councils have no authority to levy any type of tax and realise the same without the sanction of the Provincial Assembly, as no delegation of power could be made in respect of levy of taxes in disregard to Articles 77 and 127 of the Constitution. As such the Notification No.SO(LG-II) LG-I-15/80 dated 31-5-1980 regarding Local Councils (Impositionof Taxes) Rules, 1980, Notification No.ADMN(L(;)I(18)/8l N.-W.F.P. District Council (Export Tax) Rules, 1984 and consequent Notification No.l-2/65/DCA 8355-58 dated 18-6-1990 are without lawful authority, ultra vires and of no legal effect. The learned counsel for the petitioner did not seriously press the imposition of the. Levy of Education Cess of R.s.15 per Motor Cycle and simply submitted that it is also without any lawful authority. Relies on PLD 19 W Karachi 402, 1990 M LD 317 and AIR 1958 SC. 347.
4. Opposing the contentions of the learned counsel for the petitioner the learned counsel for respondent No.2 contended that the impugned notification has been issued in exercise of the powers conferred by section 134 of N.-W.F.P. Local Government Ordinance, 1979 read with Rules 7 and 8 of the Local Council (Imposition of Taxes) Rules, 1980 and Rule 12(1) of N.-W.F.P. District Council (Export Tax) Rules, 1984. As such District Council, Abbottabad and other local authorities have lawfully been authorised to impose and realize the tax. The District Councils have: been empowered to levy and collect the Export Tax under Rule 12(1) of the N.-W.F.P. District Council (Export Tax) Rules, 19884 framed by Government of N.-W.F.P. In exercise of the powers conferred by section 172 of the Ordinance read with section 134 thereof and item 7 of Part II of the Second Schedule thereto. Rule 12(1) is reproduced hereunder:-- "There shall be levied and collected by the District Councils an export tax on the export of goods produced within the District and also on goods in transit if retained within the limits allowed under this rule."
As such the District Councils under the statutory authority have been vested with the power to impose and realize the export tax. The term `District Council Limits' under Rule 2. Clause (e) of N.- W.F.P. District Council (Export Tax) Rules, 1984, has been defined as "the limits of revenue District concerned including the limits of the Municipality and Town Committees within the District. So the tax can be levied and collected by the District Council on the export of goods produced within the District when taken out from the limits of the District. He further contended that the Town Committee falls within the limits of the District Council, as such it is competent to recover the export tax on the goods taken out from its limits. He also referred to Articles 77 and 127 of the Constitution and submitted that the former Article empowers the Parliament to levy the tax for Federation whereas under the latter the Provincial Assemblies have the same power for the provinces. As the District Council (Export Tax) Rules, 1984, have been framed by Government of N.- W.F.P. Under the statutory authority, therefore, the same have the force of law and are in consonance with the Constitutional provisions. He submitted that item 49 of the Federal Legislative List Part I deals with the International and Interstate trade while Rule 12(1) of the N.-W.F.P. District Council (Export Taxes) Rules, 1984 provides for the imposition of export tax when the goods are exported or taken out of the district, hence both are quite distinguishable and are not in any way in conflict to each other. He further submitted that according to sub-rule (2) of Rule 12 of the aforesaid Rules every person exporting goods liable to tax either by rail or road or air, shall present such goods at the Tax Posts through which the goods are exported. This all would indicate that the export tax has been imposed under the authority of the Provincial Legislative Measures as contained in the Ordinance and the Rules made thereunder. Regarding Education Cess it was contended by the learned counsel for respondent No.2 that vide section 4 of the N.-W.F.P. Finance Act, 1990, Section 3 in the N.-W.F.P. Development Cess Act, 1949, has been substituted whereby the District Council was empowered to levy the Cess at the rate of 15 paisas on every rupee of every sum which becomes due to a District Council as fee or tax for the export of goods and animals from the District concerned. This being the statutory taxation is recoverable by the District Council.
Relies on 1982 CLC 1252, 1986 CLC 533 and PLD 1978 Lahore 387.
5. The learned Assistant Advocate-General supported the arguments of the learned counsel for respondent No.2 and added that the District Council has been duly authorised and empowered to impose taxes as are given in Part It and Part III of the Schedule. So it is within their competence to collect and realize the taxes.
6. We have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.
7.. Chapter XV of the N.-W.F.P. Local Government Ordinance, 1979, deals with the local taxation, and includes sections 133 to 143. The relevant sections for the present are 134 to 136 which have been reproduced above. The plain reading of these sections would show that the power to levy the taxes has been conferred on the Local Council with certain limitations, under section 172 of the Ordinance the Government has been empowered to make rules for carrying out the purpose of the Ordinance. As such the Government of N.-W.F.P. In exercise of the powers conferred by section 172 of the Ordinance, read with section 134 thereof and item 7 of Part II of the Second Schedule framed N: W.F.P. District Council (Export Tax) Rules, 1984, which were notified on 10th of April, 1984. Herein the District Council limits have been defined in clause (e) of Rule 2 of the said Rules which means the limits of the revenue District concerned including the `limits of the Municipalities and Town Committees within the District' and the export has been defined as `export from the District Council limits'. Tax has been defined as "the export tax imposed by a Council on the export of the goods and animals produced within the District". It follows that the District Councils have been conferred the authority to impose the tax on goods and animals being exported or, taken out from the limits of the District concerned.
8. Article 23 of the Constitution of Islamic Republic of Pakistan provides that `every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest'. This is apparent from the Article that the right to acquire, hold and dispose of the property is subject to the provisions of the Constitution itself and then any reasonable restrictions imposed by law. The restrictions can be imposed by any law in the public interest and unfettered right has not been given udder the said Article. In this context Articles 77 and 127 are also relevant whereby the former Article provides that tax can only be levied for `the purpose of the Federation under the authority of Act of Majlis-e- Shoora while under the latter, the provisions relating to the National Assembly are to apply to the Provincial Assembly. The imposition of export tax is also not against the spirit of Article 151 or for that matter against any other Article of the Constitution of Islamic Republic of Pakistan because it is an Intra-Province Tax. This issue came up in a case M/s. Khyber Electric Lamp Manufacturing Limited v.
Chairman, District Council, Peshawar reported in 1986 CLC 533 (Peshawar), whereby it was held that `the impugned notifications were not violative of any provisions of law or statutory rules'. The Provincial Legislature of N.-W.F.P. Passed N.-W.F.P. Finance Act, 1990 which stipulate continuation, levy and revision of certain taxes, cesses and fees in the manner prescribed therein. Its section 4 provides the substitution for section 3 of N: W.F.P. Development Cess Act, 1949, which would be relevant to be reproduced hereunder:-- "3. Levy of cess.--A cess shall be levied and paid to Government-- (a)at the rate of fifteen paisas on every rupee of every sum which becomes due to a Cantonment Board, a Municipal Corporation, a Municipal Committee or a Town Committee in the Province as octroi or terminal tax; and (b)at the rate of fifteen paisas on every rupee of every sum which becomes due to a District Council as fee or tax for the export of goods and animals from the District concerned."
In clause (a) it has been acknowledged and endorsed the imposition and collection of local taxes as octroi or terminal tax by the Cantonment Board, Municipal Corporation/Committee or Town Committee in the Province while in clause (b) the levy of fee or tax by the District Council for the export of goods and animals from the District concerned, has been endorsed and acknowledged by the Provincial Assembly.
9.In the judgment reported in PLD 1990 Karachi page 402 relied on by the learned counsel for the petitioner, the learned Court has held the export tax on Inter-Provincial movement of goods and also on goods exported from Pakistan to be unconstitutional, while export tax on Intra-Provincial movement of goods to be valid and intra vires. This judgment rather favours the contentions of the respondents. The word `export' has been given very limited meaning in District Council (Export Tax)
Rules, 1984 and has to be confined to the definition given therein which means export from the District Council limit' i.e., intra-Provincial movement of goods. Another judgment 1990,M LD 317 cited by the learned counsel for the petitioner is also on the similar point and has been referred to in the aforesaid decision. The words `imported into and exported from' have been dealt with in AIR 1958 SC 341 with reference to C.P. And Berar Municipalities Act and Terminal Tax Rules, this too is not very relevant to the legal situation in the case in hand. In all these judgments the word `export' has been construed as used in the ordinary sense, whereas the word `export' has been given specific meanings in the aforesaid Rules which are very limited and confined to restricted meanings. Every law and every word used therein has to be construed and interpreted in the context embodied in it and any import into it may render different meaning and different sense which the law-maker may not have intended to assign to it. The defined words should not be given wider meanings than the one already given in the definition, lest it may defeat the very purpose of the law itself.
10.The provisions of the local taxation of the Ordinance coupled with the Rules amply empower the District Council, to levy and collect the export tax on the export of goods produced within the district, as such the Notifications impugned herein were not violative of any law or the statutory rules.
11. Education Cess is an old cess being recovered under the N: W.F.P. Development Cess Act, 1949. Its section 3 was substituted by section 4 of the N.-W.F.P. Finance Act, 1990. In clause (b) of section 3 the Government was empowered to levy the Cess at the rate of fifteen paisa on every rupee of every sum which becomes due to a District Council as fee or tax for the export of goods and animals from the District concerned. Since this is a statutory obligation, therefore the petitioner company is bound to pay the same. Moreover the learned counsel for the petitioner did not seriously contest the imposition and recovery of the Education Cess as well.
12. In view of the above we dismiss this writ petition with no order as to costs.