' SAJJAD ALI SHAH, J.---These five appeals with leave of the Court are directed against the judgment dated 17-7-1991 of Division Bench of the High Court of Sindh, at Karachi, whereby five Constitutional Petitions C.P. 403, 405, 412, 438 and 442 of 1991 filed by Mills Ltd. Private respondents herein have been allowed, declaring order dated 31-3-1991 about octroi rate passed by Additional Chief Secretary (Local Government) to the Government of Sindh by way of review as illegal and void and order passed by him earlier on 30-5-1990 as legal, final and holding the field.
2. Briefly stated the relevant facts giving rise to these appeals are that Union Council Dhabeji recovering octroi within its territorial limits revised Tariff rates by increasing them after changing the basis of recovery from weightage to percentage and the schedule was notified by the Government of Sindh in the Gazette of 9-4-1990. In the result the new rates were to be effective from 1st July, 1990. Feeling aggrieved Mills (to be described hereafter as private respondents) filed joint appeal before Additional Chief Secretary (Local Government), which was allowed and octroi schedule notified in the Gazette on 9-4-1990 was set aside and Union Council Dhabeji was allowed to enhance rates on six items only to the extent it had revised in the year 1988 on weightage basis.
Subsequently private respondents were informed that Additional Chief Secretary (L.G.) had accepted review petition vide order dated 31-7-1991 and withdrew his previous order dated 30-5- 1990 and in consequence octroi schedule notified in Gazette of 9-4-1990 stood: revived. Private respondents herein filed constitutional petitions in the High Court of Sindh at Karachi, assailing order passed by Additional Chief Secretary (L.G.) dated 31-3-1991 accepting review petition as incompetent and without lawful authority on the ground that the same was passed without hearing them. Declaration was sought that order passed earlier on 30-5-1990 by Additional Chief Secretary (L.G.) accepting appeals was lawful, final and binding.
3. In the High Court counter-affidavit was filed by Abdul Haque Vistro, Secretary, Union Council, Dhabeji in which stand was taken that octroi schedule was revised strictly according to rules and was published in the Gazette of 9-4-1990 which was wrongly set aside in appeal vide order of Additional Chief Secretary (L.G.) passed on 30-5-1990 against which review petition was accepted by him and the said order was set aside and in the result revised octroi schedule as notified in the Gazette of 9-4-1990 stood revived. Before revision of octroi schedule, procedure laid down in the rules was followed. Contractor, who was authorised to recover octroi on behalf of Union Council, Dhabeji, joined proceedings and filed affidavit.
4. Vide judgment impugned in these appeals, High Court of Sindh has accepted constitutional petitions and has declared that order passed by Additional Chief Secretary. (Local Government) on 30-5-1990 (accepting appeal) is valid, final and holds the field while order passed by him subsequently on 30-5-1990 accepting review petition and setting aside his previous order mentioned above is void and illegal. District Council, Dhabeji has been directed to recover octroi as per order dated 30-5-1990 and also has been directed to refund within one month excess amount recovered.
5. Supreme Court of Pakistan vide order dated 8-11-1991 has granted leave to examine the following contentions:--
(i) Whether in the facts and circumstances of these cases, the High Court was justified in granting the relief of refund of the excess octroi collected from respondents Nos.1 and 2 in accordance with notification dated 9th April, 1990.
(ii) Whether the High Court could entertain the claim for refund, without an express prayer made in the Constitutional petition and adjudicate upon a monetary claim in its Constitutional jurisdiction.
(iii) Whether the High Court could direct refund of an un-specified and tin-ascertained amount, without giving opportunity to the affected parties to contest the claim.
(iv) Whether the Additional Chief Secretary or the Secretary was competent to exercise jurisdiction under section 53 of the Sindh Local Government Ordinance, 1979.
(v) What was the proper forum for appeal against the revision of octroi schedule by the Local Council."
6. Before going into the examination of contentions mentioned in the leave granting order, it would be appropriate to ascertain and find out if octroi schedule published in the Gazette of 9-4-1990 was revised in proper manner and procedure as authorised under the rules and formalities required thereunder had been completed. In this context reference can be made to the counter- affidavit filed by Secretary to the Union Council, copy of which is included in the paper book. In paragraph 8 thereof it is stated that Council in its meeting held on 25-1-1990 considered the matter and decided for revision of the octroi schedule and formed sub-committee for the purpose. Notice required under Rule 4(1) of Sindh Councils (Imposition of Taxes) Rules, 1979 was published in the newspapers and only Indus Gas Mills filed objections with regard to two items. However, none of the representatives of the said Mill or anybody from the public attended the meeting held on 19-3- 1990. Subcommittee sent its report to the Council which was considered in the meeting held on 26- 3-1990 and the taxation proposal was approved and sanctioned and notification was issued on 9- 4-1990. Rule 4 mentioned above provides that every taxation proposal prepared under Rule 3 shall be published in daily newspapers for inviting objections and suggestions thereon within fifteen days of publication of the taxation proposal. Rule 5 provides that all objections and suggestions received under Rule 4 shall be entered in a register maintained for the purpose. The Finance Committee of the Council shall hear and examine the objections and suggestions under the chairmanship of Mayor or Chairman of the council, as the case may be. In the affidavit-in- rejoinder filed by Jahangir son of Adam, in the High Court, which was filed after counter-affidavit and in reply thereto, there is no denial of the facts stated in the counter-affidavit with regard to the proceedings before publication of octroi sehedule in the Gazette of 9-4-1990.
7. In the record of the High Court there is order passed by Additional Chief Secretary (L.G.) Perusal of this order shows that no objection was raised with regard to the procedure adopted for publication of new octroi schedule. On the contrary, grievance was made that notice was published in the newspapers and objections were invited with haste and sufficient time was not given for filing objections and whatever objections were filed, were not considered by the Chairman of the Union Council. It is thus clear that no serious objection was raised that proper procedure was not followed or formalities were not completed for revisiing new octroi schedule which was published in the Gazette of 9-4-1990.
8. It also appears from the record of the High Court that appeal was allowed by Mr. Salahuddin Qureshi, Additional Chief Secretary, (L.G.) vide order dated 30-5-1990 after hearing Mr. Abbas Ali, Advocate, who appeared on behalf of appellants/Mills. Second order whereby review was allowed, was passed on 31-3-1990 by Mr. Ahmad Maqsood, Additional Chief Secretary, (L.G.).
9. Having stated the facts in proper sequence and coming back to leave granting order, we would take up contentions Nos.4 and 5 together which relate to competence of appeal, before adverting to the remaining contentions Nos. 1, 2 and 3 which relate to order passed by the High Court for refund of the amount already recovered. In this context first question which arises for consideration is whether appeal is competent against revised octroi schedule which is published in the Gazette.
"Tax" is defined in section 2(70) of Sindh Local Government Ordinance, 1979 as includes any toll, rate, cess, fee or other impost leviable under this Ordinance. Sindh Councils (Imposition of Taxes)
Rules, 1979 define in Rule 2(f) "taxation proposal" to mean a proposal framed by a council for the imposition, abolition or suspension of tax, or an increase or reduction in the rate of tax. Perusal of these rules shows that a council which includes a Union Council is allowed to review its financial position and if in its opinion any change in the tax structure is called for it shall formulate or cause to be formulated a taxation proposal. Such taxation proposal is to be published in the newspapers for the purpose of inviting objections and suggestions to be heard by Finance Committee. Such report is considered by the council and after approval it is submitted to the Government. After sanction by the Government of the taxation proposal as contemplated under Rule 7, the order of the Government shall be notified in the official Gazette and such order shall come into force on and from such date as may be specified in the notification. There is nothing in these rules to suggest that an appeal can be filed against publication of such taxation proposal.
10. Under section 103 read with sections 31 and 108 of Sindh Local Government Ordinance, 1979, the Sindh Local Councils (Appeal) Rules, 1982 have been framed which provide for forum of appeal to be filed before Tribunal consisting of a person who is or has been a District Judge. Appeal is made competent before Tribunal from an order of Mayor or Chairman. In the instant case since taxation proposal after sanction of the Government, attained finality and got converted into order of the Government and what was notified in the Gazette was not order of the Chairman of the Union Council but was order of the Government, therefore, against such order of the Government appeal is not competent before the Tribunal as contemplated under the Sindh Councils (Appeal) Rules, 1982.
11. Under section 53 of the Sindh Local Government Ordinance, 1979, Government has reserved with it general supervision and control over the councils to ensure that their activities conform to the purposes and provisions of the said Ordinance. Under the said provisions the Government has authority to see that activities of the council are in conformity with the provisions of the Ordinance and in that connection the Government can quash the proceedings, suspend the execution of any resolution passed or order made by the Council, prohibit the doing of anything proposed to be done and require the council to take such action as may be specified. Under section 54 of the said Ordinance, the Government is empowered to give directions to the council for carrying out the purposes of this Ordinance.
12 Under section 62 of the Sindh Local Government Ordinance, 1979, the Government is empowered to direct any council to levy any tax, rate, toll or fee which the council is competent to levy or to increase or reduce any rate, tax, toll or fee to such extent as may be specified or to suspend or abolish the levy of any tax, rate, toll or fee. Reading together sections 53 and 62 of the Ordinance makes the intention manifest that Government is allowed under the Ordinance to exercise control over the councils and give directions in respect of levy of tax to bring it in accord with the provision of the Ordinance.
13. Under Article 139 of the Constitution all executive actions of the Provincial Government are to be taken in the name of Government who shall make rules for allocation and transaction of business of the Provincial Government. Sindh Government Rules of Business, 1986 provide under Rule 7(iii) that any order passed by the Chief Minister or any authority to whom he has delegated his powers to pass such orders in respect of any subject or matter allocated to that Department in the charge of the Chief Minister shall be deemed to be the order passed by the Government. Under Rule 19(ii) a Minister may, with the approval of the Chief Minister, and shall, if ordered by the Chief Minister, in respect of any Department in his charge delegate his powers to the Secretary of that Department and under sub-rule (iii) an order passed by a Minister or any authority to whom such powers have been delegated is deemed to be order passed by the Government. There is no doubt about the fact that Additional Chief Secretary (L.G.) is Secretary of the Department of Local Government and by virtue of that fact is head of that Department, hence orders passed by him relating to his Department are to be considered as orders passed by the Government.
14. Now the question arises whether there has been delegation of powers by the Minister to the Secretary or not. There is no evidence available in the record that such delegation of powers did really take place. No evidence is produced. In the High Court when the constitutional petitions were being heard, Additional Advocate-General Sindh, was unable to get instructions from the Government and Additional Chief Secretary. No counter-affidavit was filed on their behalf. Such observation is made in the impugned judgment. Before us also there is no material to show delegation of such powers. In the absence of delegation of powers both orders passed by Additional Chief Secretary on 30-5-1990 and 31-3-1991 are void and liable to be struck down. In such circumstances High Court should not have granted discretionary relief to the petitioners before it in exercise of its constitutional jurisdiction. In support, reference can be made to the cases of Syed All Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504 and Nagina Cotton Mills Limited v. Pakistan through the Secretary, Ministry of Finance, Islamabad and 4 others (1990 CLC 1337).
15. In view of what is stated above, contentions 1, 2 and 3 regarding refund in leave granting' order stand automatically answered in negative for the reason that constitutional petition was liable to be dismissed and not allowed.
16. For facts and reasons mentioned above, we set aside impugned judgment and allow appeals.
However, there will be no order as to costs.