1. SIDDIKY, C. J.----This judgment will dispose of Petitions Nos. 577 and 578 of 1967.
2. Petition No. 577 of 1967 is by Messrs Amin Jute Mills Limited laving their register-d office AU Sadarghat Roaa, Cliittagong and Petition No. 5%8 of 1967 is by Messrs Amin Limited having their registered office at Sadarghat Road, Chittagong.
3. Facts in both the petitions are the same. The only difference is in the name of the petitioner- company and the holding numbers involved.
4. The petitioners have asked for a declaration that the pro--ceedings taken or acts done in the impugned assessm ent proceedings and affirmed with certain modifications by the Review Sub- Committee, Chittagong Municipality, are without lawful authority and of no legal effect.
5. Petitioners' case is that they have a Jute Mill and Textile Mill in Paschim Solashahar, a rural area, close to Chittagong town. In January 1958, Government of East Pakistan, by a notification, extended the East Pakistan Urban Immovable Property Tax Act, 1957 to the said Paschim Solashahar area.
6. The companies were then illegally assessed to tax under the said act and they paid tax to the tune of Its. 2,43,537.50 up to 1961-62. When the assessment proceedings for the year 1963-64 was started, the Companies moved this Court and obtained a rule nisi on the Provincial Government and ultimately succeeded in those rules wherein it was declared that the notification of the Government, by which the East Pakistan Urban Immovable Property Tax Act, 1957 was extended to Paschim Solashaliar, was done without lawful authority. Thereafter, the petitioners served notice under section 80 of the Code of Civil Procedure demanding the refund of the tax already paid, and after the expiry of the period of notice instituted a Civil Suit at Chittagong. After the suit was filed, the Government refunded the said sum of Rs. 2,43,537.50.
7. It is alleged by the petitioners that sometime thereafter the jurisdiction of the Chittagong Municipality was illegally and without jurisdiction extended to cover the said rural area of Paschim Solashahar Monza where the factories of the petitioners are situate by Notification No. S-III,/38- 4/65/857 dated August 16, 1965 published in the Dacca Gazette on the same date. After this notification was published, the petitioner-companies were assessed by the Chittagong Municipality to a huge amount of taxes and rates. They made an appeal against the said assess-- ments and the appeals were considered by a Review Sub---Committee of the Chittagong Municipality and they modified the assessment orders to a certain extent.
8. Being aggrieved by the said assessment orders and the order of the Review Sub-Committee modifying to a certain extent the assessment orders, the petitioner-companies obtained these rules challenging the validity of the orders of assessment on the ground of the illegal extension of jurisdiction of the Chittagong Municipality to the Paschim Solashahar Mouza on various grounds.
9. The Province of East Pakistan was not made a party respondent in these petitions. After we had heard the learned Advocates for the petitioners and Mr. Brohi representing the Chittagong Municipality, the petitioners took time and added the Province of East Pakistan as a party to the proceedings, and in response to tine notices issued to the Province, the learned Advocate-General appeared oft its behalf.
10. Respondents 1 and 2, namely, the Chittagong Municipality and the Reveiw Sub-Committee of the said Municipality contested this application by filing affidavits-in-opposition. The respondents have denied the allegations made in the petition. It has further been stated by the respondents that the Paschim Solashahar Mouza was made an urban area by a notification published in the Dacca Gazette on 12th February 1.964 under Article 3(1) (55) of the Basic Democracies Order, 1959 and another notification was published on the same date in the Dacca Gazette under rule 4(II of the East Pakistan Declaration of Municipality Rules, 1960 declaring the intention of the Government to include the urban areas of Pxschim Sholashahar and others within the Chittagong Municipality.
11. With regard to the allegation made by the petitioner --companies that the Review Sub-Committee of the Municipality disposed of their applications for review of assessment without giving them a hearing, it is stated in the affidavits-in-opposition that one Mr. Shafique Ahmed, an Advocate, appeared on behalf of the petitioners on 2-9-1967 before the Review Sub-Committee who, after hearing the said learned Advocate as a token of his presence at the time of the bearing of the Review Sub-Committee, put his signature on the said date on the margin of the application for review of the assessm ent. It is further stated by the respondents that the petitioners did not make any objection whatsoever at the appropriate time before the competent authority before publication of the notification on the 16th of August 1965.
12. The learned Advocate for the petitioners have raised before us several points for our consideration, first of which is that a Municipality cannot be established in a rural area, and Paschim Solahshahar is still a rural area. The learned Advocate for the petitioners has conceded that a Municipality can be established in an urban area, but Paschim Solahshahar Mouza, within the jurisdic--petition of which the factories and mills of the petitioners lie, has not been converted into an urban area. He has, in this connection, also contended that, if at all any, step has been taken to convert the Paschim Solahshahar Monza into an urban area, that has been done illegally. Reasons for this according to the learned Advocate are that no rural area can be converted into an urban area under the Basic Democracies Order, 1959 except for purposes of the said order, and also that the notifications, alleged to have been issued converting Paschim Solashahar into an urban area having not been authenticated by a Secretary of the Government of East Pakistan, are bad in law.
13. The point can be disposed of by a brief reference to the relevant provisions of law and the notifica- -tions published in the official Gazette. Clause (55) of sub-- article (1) of Article 3 of the Basic Democracies Order, 1959 gives the definition of an "urban area" and provides for declaration of an area to be an urban area by publication of notification in the official Gazette. Clause (55) of sub- Article (1) of Article 3 of the Basic Democracies Order, 1959 is in the following terms :- "Urban area" means an area within the jurisdiction of a municipal body or a Cantonment Board, and includes any other areas which the Government may, by notification in the official Gazette, declare to be an urban area for the purposes of this order."
14. This provision, in our opinion, gives complete authority to the Government to convert a rural area into an urban area if the area to be so converted has qualified to be an area. From the affidavits- in-opposition of the respondents, it is found that the Paschim Solashahar area has lost its character as a rural area by the establishment of large number of factories, mills and other industrial establishments. As a result, the Government thought fit to declare the said Paschim Solashahar and certain other areas around Chittagong town to be urban areas. To this end, Notification No. S-III/3B-1/63/137 dated 12th February 1964, was published in the Dacca Gazette of February 27, 1964. By this notification, the mouzas mentioned therein lying within three police stations around Chittagong town declared to be urban areas under clause (55) of sub-Article (1) of Article 3 of the Basic Democracies Order, 1959. The notification was ordered to come into force with immediate effect. The whole Paschim Solashahar Monza was included in the schedule to this notification. Mr. Khondkar, the learned Advocate for the petitioners, has challenged this notification on the ground that the publication in the Gazette of this notification does not bear any signature of any officer of the Government of East Pakistan from which it can be said that the same has been published under official authority or that the notification is genuine. No doubt, there is no signature in this notification as published in the official Gazette. We, there--fore, called for the file of the Government and the learned Advocate-General appearing for the Province produced the file before us. Mr. Khondkar also had a look into the file. From its perusal it is found that the Joint Secretary, Basic Democracies Department, Government of East Pakistan, Mr. S. D. Khan, had signed the original notification but somehow the notification as published in the official Gazette does not contain his signature or the signature of any other officer. The question is: Will this absence of signature in the Gazette, as published, make it illegal. This objection was not taken in the petitions ; but in the affidavit---in-reply this point has been raised and Mr. Khondkar's sub--mission has been that after this notification was disclosed in the affidavit-in-opposition he discovered that there was no signature or designation of any officer appended to it. The petitioners challenged the authority of the Municipality to tax them on the ground that Municipal limits could not be extended to his area which is a rural area. As such it was their duty to find out whether any notification has been made converting their area into an urban area. In fact they did not raise any objection to the Notifications Nos. S-III/3B-I/3B-137 and S-III/3B-1/63 (sic) dated 12th February 1964. Since from the records we are satisfied that this notification was signed by the Joint Secretary to the Govern-- ment of East Pakistan, we do not think that this notification dated the 12th of February 1964, as published in the Dacca Gazette of February 27, 1964, is without any authority to make it legal.
15. We may here mention that it is found from the Gazette that this notification along with another notification being No. S-111/3B--1/63/138 dated 12th February 1964 and another notification being No. S-III/IM-44/63/140 dated 12th of February 1964, relating to the leave of the Chairman of the Narayangunj Municipal Committee were published, one after another, at pages 293, 294 and 295 of the Dacca Gazette dated February 12, 1964. The. Notification No. S-III/IM-44/63/140 dated 12th February 1964, p respect of grant of leave to the Chairman of the Narayanganj Municipal Committee is found signed "By order of the Governor, S. D. Khan, Joint Secy." All these three notifica- -tions relate to matters concerning the Department of which Mr. S. D. Khan is the Joint Secretary of the Department, namely, the Basic Democracies Department of the Government of East Pakistan,th and below these there are other notifications printed at page 295 of the Gazette which relate to, other Departments of the Government. It may be that the Press, finding the three notifica--tions coming from the same Department, might have printed the name of the Joint Secretary at the end of the third notification or it may as well be that the officer who was responsible in the Secretariat to send these notifications to the press for publication in the Gazette might have sent all those together obtaining the signature of the Joint Secretary at the end of the last one which relates to the leave of the Chairman of the Narayanganj Municipal Committee. Be that as it may, we do not think, after having looked into the original file where we have already found the signature of the Joint Secretary in the original notification, tha'4 R this mere irregularity in the printing of the notification in the Gazette without the name of the officer would make it illegal. AZ the most, it may be said to be an irregularity, but this mere irregularity will not, in our opinion, affect the validity of this notification. We also think that this does not in any way prejudice the petitioners with regard to the declaration of Paschim Solashahar as an urban area under the relevant provision of the law.
16. Now the question is as to whether, under the Municipal Administration Ordinance, 1960 (Ordinance No. X of 1960), hereinafter referred to as the Ordinance, an urban area can be converted into a Municipality or can be included within the limits of an existing neighbouring Municipality. Mr. Khondker's contention hag been that the creation of an urban area out of rural area under the Basic Democracies Order is only for the purpose of the said Order, and an area which is declared to be an urban area under the Basic Democracies Order cannot be converted into a Municipality or cannot also be included within the limits of a Municipality.
17. "Urban area" has not been defined in the Ordinance. In section 3(2) of the Ordinance, it is said that "words and expressions used but not defined in this Ordinance shall, unless the context otherwise requires have the meaning assigned to them inn the order". "Order" means, in terms of clause (30) of sub-section (1) of section 3 of the Ordinance, "the Basic Democracies Order, 1959 (President's Order 18 of 1959)". Section 7 of the Ordinance which reads as follows :- "Declaration, etc., of Municipality.-The Government may, in the prescribed manner, declare any urban area other than a cantonment to be a municipality, and extend, curtail or otherwise after the limits thereof, or declare that any urban area shall, from a date to be specified, cease to be a Municipality."
18. Provides for the power of the Government to declare any urban area other than a Cantonment to be a Municipality in the prescribed manner and to extend, curtail or otherwise alter the limits thereof, or declare that any urban area shall, from a date to be specified, cease to be a municipality. We see no reason in the contention of Mr. Khondkar that an area declared to be an urban area under the Basic Democracies Order cannot serve the purpose of an urban area for cenversion into a Municipality as contemplated by section 7 of the Ordinance.
19. By the introduction of the Basic Democracies Order, 1959, the country as a whole minus certain areas in the west wing of the country has been divided into units known as Union Councils, Union Committees and Town Committees. Union Councils are composed of the units the Basic Democracies Order which are situate in the rural areas. Those of the units which are in the urban areas constitute Union Committees and those of the units which are situate in a town or within the limits of the Municipality constitute Town Committees. These Sub-Divisions of the country into different heads under the Basic Democracies Order relative to their status (Rural, Urban, Town) do not in any way come in conflict with the provisions of the Ordinance under which Municipalities can be created or their limits extended or curtailed. It is not that the Municipalities are created in some areas which are outside the limits of the units created by the Basic Democracies Order. The Municipalities must exist in some area which may be covered by any of the units created by the Basic Democracies Order. All that is necessary and essential or the purpose of declaration of a Municipality is that it must be so done in an area which is not a rural area or, in other words, which is an urban area. Now, any urban area created under the Basic Democracies Order can be blessed with the status of a Municipality. We find no restriction in the powers of the Government as contemplated by section 7 of the Ordinance to either create a Municipality in an urban area or to curtail the limits or extend the limits of an existing Municipality. The only limitation that we find is that no Municipality can be established in an area which is not an urban area. Since the Government has been vested with the powers under Article 3(1)(55) of the Basic Democracies Order to declare an area to be an urban area, we are of the opinion that if an area has been declared to be an urban area under the said Article of the Order, the Government may then establish a Municipality under the Ordinance in that Urban area.
20. Next, Mr. Khondkar contended that the impugned notifica--petition, namely, the Notification No. S- III/3B-4/65/857 dated 16 of August 1965 published in the Dacca Gazette, Extraordinary on Monday August 16, 1965, is without any foundation as respects the Paschim Solashahar Mouza which concerns him, for two reasons, firstly, that the Notification No. S-III/3B-1/63/137 and S-III/3B-1/63/ 138 dated 12th of February 1964 published in the Dacca Gazette of February 27, 1964, not having been signed by the proper authority, there is no notification either creating an urban area under Article 3(1)(55) of the Basic Democracies Order or expressing the intention of the Governor to include the said urban area constituted under Notification No. S-III/3B-1/63/163 (sic) dated 12-2-64 within the Chittagong Municipality. We have already answered this question earlier while dealing with the objection of Mr. Khondkar in regard to the validity of these two notifications. The second objection of Mr. Khondkar in this regard is that this Notification No. S-III/3B-4/65/857 dated 16th August 1965, has not specified the date from which the urban area so created is to be included within the limits of the Chittagong Municipality in terms of section 7 of the Ordinance read with Rule 4(4) of the East Pakistan Declaration of Muni--cipalities Rules, 1960 made under section 121(2) of the Ordinance of 1960. We have already quoted section 7 of the Ordinance. We will now quote rule 4 in extenso before we proceed to deal with the argument of Mr. Khondkar:- "4. Alteration of limits.-(1) The Provincial Government may, be notification in the official Gazette, declare their intention to extend, curtail or otherwise alter the limits of any municipality by including any area in the municipality or excluding any area therefor. The area proposed to be included in or excluded from, a municipality shall be defined in the notification.
(2) A copy of every notification under sub-rule (1) shall be published in the municipality and the area concerned in such manner as the Collector may determine and the Collector shall certify to the Provincial (sic) and its translation into Bengali was published. The date so certified shall be deemed to be the date of publication of the notification.
(3) Any inhabitant of the municipality or the area concerned may, within thirty days of publication of the notification under sub-rule (2), submit his objection or suggestion in writing to the Provincial Government through the Collector.
(4) When thirty days from the date of publication of the Notification under sub-rule (2) have expired, and the Pro--vincial Government has considered and passed orders on such suggestions or objections as may have been submitted to it under sub-rule (3), the Provincial Government may, by notification in the official Gazette extend, curtial or otherwise alter the limits of the municipality, as the case may be by including any area within the limits of the municipality or excluding any area therefrom from date to be specified in the notification."
21. Rule 4(1) of the said Rules provide for the declaration of the intention of the Provincial Government by publication of the notification of the intention in the official Gazette either to extend, curtail or otherwise alter the limits of any municipality by including any area in the municipality or excluding any area therefrom. We have already seen that, by Notification No. S-III/3B-1/63/138 dated 12th of February 1964, issued under this rule, the Government had declared its intention to include the areas mentioned in the said notification within the limits of the Chittagong Municipality. Sub-ruleth
(2) of rule 4 provides for publication of the notification made under sub-rule (1) in the Municipality and in the area concerned in such manner as the Collector may determine and for the Collector to certify to the Provincial Government the date on which the copy of the said notification and its translation into Bengali was published. It further provides that the date of publication of the notification shall be the date on which the Collector certifies the publication of the notification. No objection has been taken by the petitioners on this score and it has been stated in the affidavit-in- opposition that this sub-rule (2) of rule 4 has been complied with, and from the records placed before us by the learned Advocate-- General we are satisfied that such a publication in conformity with this rule was made. Sub-rule (3) of rule 4 provides for objections from the inhabitants of the locality to be made within 10 days of publication of the notification under sub-- rule (2). Not a word has been said by the petitioners about their having objected to the inclusion of the urban area which includes Paschim Solashahar within the limits of the Chittagong Municipality. On the other hand, in the affidavits-in-opposition, the respondents have asserted that no objection was made within the time allowed by the petitioners and this assertion in the affidavits-in-opposition has not been denied in the affidavit-in-- reply.
22. Sub-rule (4) of rule 4 is relevant for the consideration of the point raised by Mr. Khondkar, sub-rule
(4) of rule 4, as will be evident from its wordings, provides for the powers of the Pro--vincial Government to extend, curtail or otherwise alter the limits of the municipality as the case may be by including any area within the limits of the municipality by publication in the official Gazette or excluding any area therefrom from a date to be specified in the notification. It is therefore contended by Mr. Khondkar that, in terms of both section 7 of the Ordinance and sub-rule (4) of rule 4, it is incumbent upon the Government to specify the date for extension, curtailment or alteration of the limits of the Municipality or exclusion of any area therefrom. In other words, his submissions were that the phrase "from date to be specified in the notification" mentioned fn sub- rule (4) of rule 4 must govern both extension, curtailment, alteration and exclusion ; and if this interpretation is accepted, according to Mr. Khondkar, in the Notification No. S-III/3B-4/65/ 857 dated 16th August 1965 no date having been specified, the notification is in violation of not only sub-rule (4) of rule 4 but also of the provisions of section 7 of the Ordinance, and as such cannot become effective for the purpose of inclusion of Paschim Solashahar within the limits of Chittagong Municipality.
23. As against this contention of Mr. Khondkar, both Mr. Brohi appearing for the Chittagong Municipality and the learned Advocate-General appearing for the Province have contended that the phrase "from a date to be specified" occurring in section 7 of the Ordinance relates to the cessation clause of the section and not to the declaration, extension, curtailment or alteration part of it because of the disjunctive nature of the preposition occurring in the said section. According to Mr. Brohi and the learned Advocate-General, there is no question of specification of a date when an urban area other than a cantonment is declared to be a Municipality and the limits of a Municipality are extended curtailed or otherwise altered but it is incumbent to specify the date only. When an urban area or a part thereof is excluded from p the limits of a Municipality. Similarly, it was contended by Mr. Brohi and the learned Advocate-General that in rule 4(4) the phrase "from date to be specified in the notification" must govern the exclusion part of the rule and not the extension, curtailment or alteration part of it. Upon a reading of section 7 of the Ordinance and sub-rule (4) of rule 4 of the Rules, we are also of the view that the phrase from a date to be specified" occurring in both the places refers to exclusion part of the section and the rule.
24. The learned Advocate-General further contended that if it is found that the phrase "from a date to be specified" governs the entire section 7 of the Ordinance or the whole of sub-rule (4) of rule 4, then the date on which the notification was published in the official Gazette should be considered to be the date specified in terms of both the section and the sub-rule. Mr. Brohi, on the other hand, contended that, if the phrase "from a date to be specified" occurring in sub-rule (4) of rule 4 is found to govern both the inclusion and the exclusion part of the rule, then the rule should be declared to be ultra vires of the Ordinance. We do not think that this is a sound argument advanced by Mr. Brohi.
25. Lastly, Mr. Khondkar contended that para. 2 of the Notifica--petition No. S-III/3B-4/64/857 dated 16th August 1965, has virtually knocked the first part of the notification from the bottom. In amplifying this he submitted that by the expression used in para. 2 of this notification "and in supersession of all previous notifi--cations issued in this behalf", the Notification No. S-III/3B-1/63/ 138 dated 12th February 1964, declaring the intention of the Governor has been superseded and therefore there is no declaration of intention any more available, and without the declaration first made of intention published in the official Gazette, the first part of the notification cannot stand ; or, in other words, he intended to say that in regard to the extension of the jurisdiction of the Chittagong Municipality to the Paschim Solashahar area whatever notifications may have been issued earlier having been superseded by the second para. Of the notification of the 16th of August 1965, a very important part of the procedure to be adopted for inclusion of this area within the Chittagong Municipality has gone out of existence, and therefore, without any notification of declaration of intention existing, the present notification cannot stand. We must say with regret that we cannot agree with the learned Advocate for the petitioners in the interpretation that he seeks to give to these words occurring in para. 2 of the notification of the 16th August 1965. Para. 2 of the notification of the 16th August 1965, defines the boundary of the Chittagong Municipality after inclusion of several urban areas within its limits as mentioned in the Schedule to the first para. Of the notification. This has been done to clarify the position finally with regard to the limits of the Chittagong Municipality. The reference to any other notification issued in this behalf previously in the supersession clause of para. 2 of this notification is to such notifications as may have been issued earlier defining the limits of the Chittagong Municipality either under the present Ordinance or under the earlier Municipal Act of 1932 (now repealed). Interpretation sought to be given to these words occurring in the second para. Of the notification by Mr. Khondkar leads to an absurdity and we regret we cannot accede to such an absurd interpretation to be given to this phrase. It is absolutely clear from the wordings of the first part of para. 2 as to what the Government means by the use of this phrase. It says: "In exercise of the powers conferred by sub-rule (1) of rule 4 of the said Rules and in supersession of all previous notifications issued in this behalf, the Governor is further pleased to define that the limits of the Chittagong Municipality, after such inclusion, shall be as follows, namely." The underlining is ours. The underlined* words clearly indicate the meaning of the word "supersession" used earlier in this paragraph. We, therefore, find no substance at all in this absurd interpretation given by Mr. Khondkar to this paragraph.
26. The petitioners did not raise any of the contentions urged before us when they argued their objection petition before the Review Sub-Committee of the Chittagong Municipality nor have they taken any of these points in the two petitions we are now considering. These points which have been argued by Mr. Khondkar, to which we have given our answers, were raised subsequently in the course of the argument and we must say that those were afterthoughts.
27. All that the petitioners complained of before the Review Sub-Committee of the Municipality was the quantum of rates and taxes to which they were assessed in regard to their factories, mills and other structures.
28. Last but not the least is, we cannot help pointing out, that the petitioners did never think of challenging the notifications either in 1964 or in 1965. They came before us as late as December 1967. It is stated by Mr. Siddique Ahmed Choudhury, the learned Advocate for the Chittagong Municipality, that since 1965 hundreds of thousands of people who have come within the jurisdiction of the Chittagong Municipality because of the inclusion of new areas within its limits have been taxed and have paid their rates and taxes. The petitioners, too, did not raise any objection to the validity of the orders and notifications except with regard to the quantum of taxes imposed on them. These belated applications of the petitioners cannot be allowed on that ground also as it will upset a condition prevailing for the last three years and create complications and chaos. If the petitioners thought that the notifications were made illegally, they should have promptly come before this Court seeking remedy.
29. MABSUM-UL-HAKIM, J.----I agree.