' Through all the above titled and numbered writ petitions, the vires of the Ordinances No,1162- 67/LD/91 dated 16-11-1991 and No,1.202-6/91 dated 22-11-1991 have been challenged and all the petitions pertain to the validity of the aforesaid Ordinances, thus in all the above titled writ petitions, identical points are involved, so all the aforesaid writ petitions are being disposed of by this single judgment.
2. Through these writ petitions, the petitioners have challenged the vires of the aforesaid Ordinances through which an amendment has been introduced in the Education Cess Act, 1975 and subsections (10), (11), (12) and (13) have been added after subsection (9) of Section 2 of the Azad Jammu and Kashmir Education Cess Act, 1975.
3. The facts forming the backgrounds of these writ petitions are that the petitioners are manufacturers of Cigarettes, toilet preparations, that include Toilet Soaps, Shaving Creams, Tooth Pastes, After Shave Lotions, Perfume Spray Creams etc.
4. The Azad Jammu and Kashmir Government in 1989 issued a notification whereby all the industries have been exempted from the excise duty for the period of 5 yeaRs, It was also stipulated that the industries installed during the period of 1990-94, will be entitled to this exemption. A proclamation was also issued in the newspaper, that all the industries which would be installed during the aforesaid period, shall he exempted from the sales tax, excise duty etc. On this assurance of the Government, the petitioners installed these industries and due to this incentive given by the Government, the petitioners spent huge amount for installing the aforesaid industries.
Now, the Government has issued an Ordinance No,CVI of 1991 dated November 16, 1991 amending the Azad Jammu and Kashmir Education Cess Act, 1975. Through this Ordinance, now Subsections (10), (11), (12) and (13) in section 2 of the Azad Jammu and Kashmir Education Cess Act have been added and through these provisions, the education cess has been imposed from 40 to 160 per cent on Cosmetics industries and 60 to 400 per cent. On the Cigarettes Industries. After this, another Ordinance was also issued providing that this education cess shall he levied and recovered as excise duty. Now, the petitioners have challenged the aforesaid Ordinances through the present writ petitions,
5. The learned counsel for the petitioners, Ch. Muhammad Taj, argued that basically the petitioners have installed their Industries on the assurance of the Government. That their industries will be exempted from any sort of tax. He further submitted that the education cess has not been imposed on the industries, but excise duty has been imposed in the garb of education cess. He referred towards the statement of the Acting Prime Minister, published in the Daily `Jang' wherein it has been stated that the excise duty on the industries of the cosmetics has been imposed under the pressure of the Government of Pakistan. He further maintained that according to section 4(15) of the Azad Jammu and Kashmir Interim Constitution Act, all persons are equal before law and are entitled to equal protection of law. Through present amendment, education cess has been imposed only on the petitioners and no education cess has been imposed on the huge projects like Amine Textile Mills and Novelty Enterprises etc. So, the violation of subsection (15) of section 4 of the Interim Constitution has been committed and the present amendment is in conflict with the fundamental rights laid down in section 4(15) of the Constitution. Thus, the present legislation is void in purview of section 4(1). He further submitted that no reasonable explanation has been shown by the Government, that why the Government has selected these industries for levying huge education cess. Thus, the present legislation is derogatory to the section 4(15). It was next contended by the learned counsel for the petitioners that by amending the Azad Jammu and Kashmir Education Cess Act, double education cess has been imposed upon the petitioners, as it has already been provided in the Education Cess Act that 5 per cent. Of the income-tax will be paid as education cess. Thus, now the petitioners have to pay education cess twice, once on the income-tax and then according to subsections (10) to (13). He further argued that no fiscal legislation can be made through Ordinance. Thus, violation of section 31 of the Interim Constitution Act has been committed.
6. While controverting the arguments of the learned counsel for the petitioners, Ch. Muhammad Afzal, the learned counsel for the respondents vehemently argued that all the writ petitions filed by the petitioners are not maintainable. Neither the memorandum of the Companies nor the Articles of the Associations have been appended with the writ petitions nor any resolution of the Board of the Directors as required under section 184 of the Company Law, has been appended with the writ petitions. Thus, no powers for invoking writ jurisdiction have been given by the Board of Directors, to the petitioneRs, These writ petitions have been filed without any authority from the Companies.
Thus, the writ petitions are liable to be dismissed on this sole ground. It was also contended by the learned counsel for the respondents that he has raised this objection in his written statement.
Although after the objection raised in the written statement, the learned counsel for the petitioners filed some documents and some forged and fictitious minutes of the meetings of Board of Directors of some Companies, but those are not in accordance with section 184 of the Company Law. Thus, the writ petitions filed by the petitioners are not maintainable.
7. It was next contended by the learned counsel for the respondents that the guarantee granted under section 4(15) of the Interim Constitution Act, is not available to the petitioneRs, While emphasising on this point, the learned counsel argued that all the petitioners are Pakistani and they are not State Subject. Thus, the right guaranteed under the fundamental rights is not available to the non-State Subjects. Thus, the petitioners cannot avail the benefit of section 4(15). This benefit is only available to the State Subjects as laid down in section 4(15) of the Interim Constitution Act.
He further contended that assuming for the sake of arguments that the guarantee provided in section 4(15) of the Constitution, is available to the petitioners, even then the proper and reasonable classification is justified and any legislation made or enacted on the basis of proper and reasonable classification is justified and in the instant case, proper and reasonable classification has been made, as the items manufactured by the petitioners are luxury items, so by imposing education cess, a reasonable classification has been made between the items of luxury and items of daily livelihood. So the legislature were wise enough to impose the education cess on the luxury items. He further contended that no double education cess has been imposed because the petitioners have been exempted from income-tax and when they are not paying income-tax, then they were also not paying the education cess. That is the reason that the education cess has been imposed upon the petitioneRs, It was also contended by the learned counsel for the respondents that under section 2(2) of the Constitution of 1974, an Act includes the Ordinance.
Thus, fiscal legislation can be enacted through an Ordinance and the Ordinance comes within the ambit of an Act, as provided in section 2(2) of the Constitution.
8. I have heard the learned counsel for the parties and have given my passionate thoughts to the arguments advanced by the learned counsel for the parties. A perusal of the. Writ Petition No,6 of 1992 shows that this writ petition was filed by Walton Tobacco Company, through Azharuddin Naeem Siddiqui, Director and Global Tobacco Company through its Director, but no name of the Director has been mentioned, that who was the Director, through whom the writ petition has been filed. Although, the respondents raised the objection in the written statement that the writ petitions have been filed without any authority from the Company, but after this objection, the petitioners filed some documents alongwith the replication. I have gone through those documents. An extract of the minutes of the meetings of the Board of the Directors of the Walton Tobacco Company has been appended with the replication and through this extract, Mr. Azharuddin Naeem Siddique has been appointed as attorney. As this extract of the minutes of the meeting is concerned, it does not contain that how many Directors were present in the meeting, neither the names of the Directors have been given who have attended the meeting, while according to section 173 of the Company Law, it is mandatory that the names of those Directors should be mentioned, who participated in such meeting but no such like has been mentioned in these minutes. I would like to cite section 173(1) of the Company Law which reads as under:-- "173.--(1) Every company shall cause a fair and accurate summary of the minutes of all proceedings of general meetings and meetings of its directors and committee of directors, alongwith the names of those participating in such meetings, to be entered in properly maintained books."
' According to the aforesaid provisions, it is mandatory that the names of those Directors who participated in the meeting, should be entered properly in the maintained book, but the extract of the minutes of meeting appended by the petitioners alongwith the replication, does not contain the names of Directors who participated in the meeting. This extract of the minutes of the meeting appended by the petitioners alongwith the replication shows, that no power for filing the writ petition has been expressly given to the Director for challenging the vires of the aforesaid Ordinances. Unless and until specific powers have been given through attorney, no proceedings can be initiated by such attorney. The power of attorney is always to be construed strictly and an attorney can exercise only those powers which have been incorporated in the power of attorney or which have been conferred upon the attorney. The power of attorney should be construed strictly and should be interpreted to give only such authority as it confers expressly or by necessary implication, as it has been laid down by the Supreme Court of Azad Jammu and Kashmir in Mst.
Gultaj Begum's case (PLD 1980 SC (AJ&K) 60). Thus in purview of the authority given through extract of the minutes of the meeting, to Azharuddin Naeem Siddiqui, he is not entitled and authorized to file the instant writ petition and challenge the vires of the impugned Ordinance. As stated above, this extract of the minutes of the meeting does not contain the name of the Director and it cannot he said that the Board of Directors has authorised by a resolution passed by the Company, to Azharuddin Naeem Siddiqui, to initiate the present proceedings. It is to be noted that neither the memorandum and Articles of the Association have been appended with the writ petition nor any other such like document has been filed with the writ petition, from which it could be said that the Board of Directors was competent to authorise the petitioners to file the writ petition on behalf of the Company. It is observed that the business of the Company or Corporation had to be run according to the Articles of the Association and power of attorney should have been executed on behalf of the Company as required under the Articles of the Association and when the Articles of the Association are not before me, so it could not be said that according to the Articles of the Association, the Board of Directors was competent to execute such like attorney. This document is purported to have been signed by some Director but his name is not legible. This document is neither original nor it is an attested copy of the minutes of the meeting and the contents of the document have not been supported by any affidavit. Thus, the document placed on the record is inadmissible in evidence and no writ petition can be filed on the basis of such like inadmissible piece of evidence and it has already been resolved by the 'Supreme Court of Azad Jammu and Kashmir in Novelty Enterprises' case, by Full Court that where the document is not original and the documents have not been supported by an affidavit or the document is not an attested copy of the original and no affidavit has been filed in support thereof, then that document will be inadmissible in evidence, and no writ can be filed on the basis of such documents. Thus, the writ petition filed on behalf of Walton Tobacco Company, by Azharuddin Naeem Siddiquee, is without any authority. It is to be noted that although after the objection of the respondents, the petitioner appended the aforesaid documents with the replication, even after that, a notice was given by this Court to the petitioners that neither the memorandum nor the Articles of the Association have been filed with the writ petition nor the resolution of the Board of Directors has been filed alongwith the writ petition, whereby the petitioners have been authorised to file the aforesaid writ petition. The document appended by the learned counsel for the petitioners does not contain the power to initiate the proceedings but despite that notice, the learned counsel for the petitioners has failed to file any relevant document authorizing the petitioners to initiate the writ proceedings. Thus, he also squandered this opportunity too.
9. So far as the writ petition filed by Global Tobacco Company (Pvt.) Ltd. Is concerned, it has been simply incorporated in the writ petition "through Director", but no name of the Director has been mentioned in the writ petition.Neither it has been stated in the writ petition that the Board of Directors ever authorized any Director to file the writ petition. As the power of attorney filed by the learned counsel for the petitioner is concerned, it too has not been mentioned in the power of attorney, that any Director on behalf of the Company signed the power of attorney in favour of the learned counsel for the petitioner, but signatures of some Abdul Rahim are on the power of attorney and an extract of the minutes of the meeting of the Global Tobacco Company has been filed with the replication, whereby Mr. Azharuddin Naeem Siddiqui too has been authorised to act on behalf of the Company but the writ petition has not been filed through Mr. Azharuddin Naeem Siddiqui and has been filed through some Abdul Rahim. Neither the Memoradum nor the Articles of the Association have been filed with the writ petition, nor the resolution of the Board of Directors contains the names of the Directors who participated in the meeting. So, this resolution of the Board of Directors is not in accordance with section 173(1) of the Company Law. Neither it is an attested copy of the minutes of the meeting which shows the signatures of Abdul Rehman but if the Articles of the Association would have been filed with the writ petition, then those Articles would have revealed whether this Abdul Rehman is a Director or not or he has any authority to authorise some person to file the writ petition. Thus, this document too is inadmissible as it is not supported by any affidavit nor it is an attested copy of the resolution of the meeting. Thus, this writ petition is incompetent and has been filed without any authority of law. Thus, it stands dismissed for want of authority.
10. Writ Petition No, 9 of 1992 filed by Continental Tobacco Company has been filed through Nasir Ali, General Manager and in this writ petition, objection was raised by the learned counsel Tor the respondents and then the petitioners filed an extract of the minutes of the meeting of the Board of Directors of the Company, alongwith the replication. I have gone through 'the extract of the minutes of the meeting. It too does not contain the names of the Directors who participated in the meeting, as required under section 173(1) of the Company Law and it too does not authorise Nasir Ali for filing the writ petition because no specific power has been given through this authority, as stated above, that unless and until specific powers have been given, no proceedings can be initiated. Even otherwise, it is not an attested copy of the original minutes of the meeting but it is just a photostat copy which has been attested by some Oath Commissioner, who has no authority to attest such like copies and attestation of the Oath Commissioner carries no value and this copy has not been supported by any affidavit, neither the Articles of the Association have been filed with the writ petition. So no reliance can be placed on this inadmissible document and it cannot be said that on the basis of this document, Nasir Ali was competent to file the writ petition on behalf of the Company. Thus the writ petition filed on behalf of the Company too is without any authority as stated in the case of Walton Tobacco Company. This writ petition also stands dismissed on the basis of lack of authority for filing the writ petition.
11. So far as Writ Petition No,10 of 1992 filed on January 19, 1992, on behalf of Kohsar Trading Company is concerned, it has been filed through Ghulam Mustafa Khan, Director and in this writ petition too, the Articles and Memoradum of the Association have not been filed with the writ petition and after objection of the learned counsel for the respondents, a copy of the minutes of the meeting of the Board of Directors has been filed, whereby Ghulam Mustafa Khan, General Manager of the Company has been appointed an attorney and the learned counsel for the petitioners contended that through this authority, Ghulam Mustafa Khan was authorised to file the writ petition, while Ghulam Mustafa Khan through whom the writ petition has been filed, has been shown as Director of the Company and the authority which has been conferred upon Ghulam Mustafa Khan, shows him as General Manager and not Director of the Company, and the attested copy of the minutes of the meeting has not been filed with the replication but a copy signed by Haji Aziz Muhammad Khan, Chairman, has been filed, which has been seriously objected to by the learned counsel for the respondents, that it contains fictitious signatures of Haji Aziz Muhammad Khan. He submitted that he filed attested copies signed by Haji Aziz Muhammad Khan, Managing Director of the Company and the signatures on those copies and on the minutes of the meeting are quite different. Thus, it can easily be said that the forged signatures of Haji Aziz Muhammad Khan have been put on this copy. In this respect, the learned counsel for the respondent referred towards Annexure `D/1' letter addressed to the Deputy Collector, Excise and Taxation, Mirpur, by Haji Aziz Muhammad Khan, Managing Director and attested copy of the agreement entered into between Haji Muhammad Aziz Khan and Kohsar Trading Company. Both these copies are attested copies and the signatures on these copies and on the minutes of the meeting are quite different and clearly show that these documents have been prepared after the objection of the learned counsel for the respondents; and it does not contain the signatures of Haji Aziz Muhammad Khan.
Thus, the writ petition filed on behalf of Kohsar Trading Company, through Ghulam Mustafa, General Manager has also been filed without any authority, on the grounds stated in the case of Walton Tobacco Company and it is also liable to be dismissed on this score.
12. The writ petition filed on behalf of petitioners Nos,2 to 4, has also been filed without any valid authority and the documents pertaining to authority filed by the learned counsel for the petitioners, alongwith the replication, also do not confer any authority upon the Directors on the grounds mentioned in the case of Walton Tobacco Company and is also liable to dismissal on this ground.
13. As Writ Petition No,8 of 1992 captioned as A.J.H. Company and others, is concerned, this writ petition has been filed by 8 persons. On objection by the learned counsel for the respondents, the learned counsel for the petitioners filed some documents alongwith the replication but those documents do not confer any authority and are inadmissible in evidence on the grounds stated in the aforesaid case of Walton Tobacco Company. Thus, it is liable to be dismissed on this ground too.
14. As Writ Petition No, 85 of 1991, is concerned, through this writ petition, 16 petitioners have challenged the vires of the Government Ordinances. Except petitioner No,6, all other petitioners have filed the writ petition without any authority. Although some petitioners filed some documents just like extract of the minutes of the meeting, alongwith the replication, but those documents do not authorise or confer any authority on the petitioners, who filed the writ petition, on the grounds mentioned in the case of Walton Tobacco Company and thus with the exception of petitioner No, 6, the writ petition of rest of all other petitioners is dismissed on the grounds stated above in the case of Walton Tobacco Company. The learned counsel for the non-petitioners has frankly conceded that this writ petition to the extent of petitioner No,6, has been filed by a competent authority. Thus it is disposed of on merits.
15. The first and primary point which requires determination is that whether the guarantee provided under the Fundamental Rights in section 4(15) was available to the petitioners or not?
16. As section 4(15) is concerned, it has been clearly provided in section 4(15) of the Azad Jammu and Kashmir Interim Constitution, 1974, that all the State subjects are equal before law and are entitled to equal protection of law, thus the guarantee under section 4(15) has only been provided to the State Subjects. As the learned counsel for the non-petitioners has raised this objection in the written statement that all the petitioners are not State subjects and thus they are not entitled to any protection of law provided under section 4(15) and when the non-petitioners have alleged this fact in the written statement and further they have also filed affidavits in support of their written statements and this question of fact, has not been specifically denied by the petitioner in his replication, neither he has filed any affidavit in the support of plea that the petitioners are State subjects. Nor he filed any copy of the State subject. Rather the learned counsel for the petitioners has impliedly accepted during the course of the arguments, that the petitioners are not State subjects. The learned counsel for the petitioners was confronted, that he should explain that if the petitioners are not State subjects then how the guarantee provided under fundamental right laid down in section 4(15) is available to the petitioners, but the learned counsel for the petitioners stressed that guarantee provided in section 4(15) is available to all the persons and he referred the following rulings in support of his contention: 1990 CLC 136, PLD 1983 Azad J & K 10, PLD 1990 Pesh. 51, PLD 1990 Lah. 121, PLD 1990 Kar.
342.
17. As the case-law referred by the learned counsel for the petitioner is concerned except PLD 1983 Azad J & K 10, all other cases pertain to the Pakistan jurisdiction and in all those cases the decisions have been made on the basis of the provisions contained in the Pakistan Constitution. As PLD 1983 Azad J & K 10 is concerned, that has no bearing on the facts of the present case because in that case Mr. Sharif Hussain Bukhari who was an ex-elected member of the Legislation Assembly of Azad Jammu and Kashmir filed a writ on the basis of the fundamental rights and claimed the equal protection of law and he was a State Subject thus that case has no bearing on the facts of the present case.
' As the other reports are concerned, they have no bearing on the facts of the present case, because all those cases have been decided in the light of the provisions of the Constitution of Pakistan and the provisions of Pakistan are different than the Constitution of the Azad Jammu and Kashmir.
18. As the Constitutions of the Pakistan and India are concerned, different wordings have been used in these Constitutions. In the Constitution of Pakistan, in Article 24 the words all the citizens are equal before law and are entitled to equal protection of law have been used.
19. As the Indian Constitution is concerned, in Indian Constitution in Article 14, it has been laid down as under:--- "14. Equality before law:--The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
' The provisions of Pakistan and Indian Constitutions are different than the Constitution of Azad Jammu and Kashmir so the case-law referred by the learned counsel for the petitioners pertaining to the Pakistan and Indian jurisdiction has no bearing on the facts of the present case and I would also like to reproduce the section 4(15) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and Article 25 of the Constitution of Pakistan: "4(15).--Equality of State Subjects.--All State Subjects are equal before law and are entitled to equal protection of law.
"25 (1).--All citizens are equal before law and are entitled to equal protection of law."
' Now it is quite clear that as the Indian Constitution is concerned in Indian Constitution, it has been provided that all persons are equal before law and are entitled to equal protection of law. As the Constitution of Pakistan is concerned it has been clearly laid down that all the citizens are equal before the eye of law, whereas the Azad Jammu and Kashmir Interim Constitution Act, 1974 is concerned, here the word any person and all the citizens have not been used but the word state subject has been used, so it clarifies the position that all the persons residing in Azad Jammu and Kashmir or working in Azad Jammu and Kashmir are not entitled to the fundamental rights provided in Constitution but only those persons are entitled who are State Subjects and the word State Subject has been defined in section 2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 which reads as under:-- 'State Subject' means a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a 'State Subject' as defined in the late Government of the State of Jammu and Kashmir Notification No,1-L/84 dated the 20th April, 1927 as amended from time to As the Notification Not- L%84 dated 20-4-1927 is concerned that is also reproduced as under.- "The term " State Subject" means and includes.- Class I. All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Gulab Singh Sahib Bahadur and also persons who settled therein before the commencement of Samvat year 1942, and have since been permanently residing therein.
Class ILAll persons other than those belonging to Class-I who settled within the State before the close of Samvat year 1968, and have since permanently resided and acquired immovable property therein.
Class III. All persons, other than those belonging to Classes-I and II permanently residing within the State, who have acquired under a Rayatnama any immovable property therein or who may hereafter acquire such property under an Ijazatnama and may execute a Rayatnama after ten years' continuous residence therein; Class IV. Companies which have been registered as such within the State and which, being companies in which the Government are financially interested or as to the economic benefit to the State or to the financial stability of which the Government are satisfied, have by a Special order of His Highness been declared to be State Subjects.
' NOTE I. In matter of grants of State scholarships, State lands for agricultural and house building purposes and recruitment to State service, State Subjects of Class I should receive preference over other classes and those of Class II over Class III, subject, however, to the order dated 31st January, 1927, of His Highness the Maharaja Bahadur regarding employment of hereditary State Subjects in Government service.
' NOTE II. The descendants of the persons who have secured the status of any, Class of the State subjects will be entitled to become the State Subjects of the same Class. For example, if A is declared a State Subject of Class, II, his sons and grandsons will ipso facto acquire the status of the same Class II and not of Class.
' NOTE III. The wife or a widow of a State Subject of any class shall acquire the status of her husband as State Subject of the same class as her husband, so long as she resides in the State and does not leave the State for permanent residence outside State.
' NOTE IV. For the purposes of the interpretation of the term 'State Subject' either with reference to any law for the time being in force or otherwise, the definition givea in this Notification as amended up to date shall be read as if such amended definition existed in this Notification as originally issued.
' According to Class IV, it has been provided that the companies which have been registered in the State come within the definition of the State Subject.
20. Now neither the learned counsel for the petitioners agitated this point nor he appended any certificate of registration of any company so it cannot be said that the instant companies have been registered in the Azad Jammu and Kashmir, when the petitioners have failed to prove themselves as State Subjects of Azad Jammu and Kashmir then they are not entitled to any guarantee provided under section 4(15) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
21. Assuming for the sake of arguments, that if the petitioner would have filed the copy of the State Subject or he would have been State Subject even then the reasonable and rational classification is permissible. The basic object of this section is that the persons should be uniformally treated by law, unless there are some reasonable reasons that why they should be treated differently. The guarantee contained in this Article is only that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other classes in alike circumstances.
The word equal protection of law does not mean equality of operation of legislation upon all the citizens of States. The term has been borrowed from the fourtheenth amendment, of the Constitution of the United States though in United States, the guarantee of equal protection of law has been invoked on more occasions than in any other Constitutional guarantee. The equal protection of law means that no person or class of persons shall be denied by the State protection of law which is enjoyed by other persons or other classes is in alike circumstances in their lives, liberty. The guarantee of equal protection of law requires that all persons should be treated alike under like circumstance and conditions both in the privileges conferred and in the liabilities imposed. While applying this principle, it has always been recognized that the classification of persons or things is not in any way repugnant to the equality provided and the classification is not arbitrary or capricious and is natural, reasonable and appears to be a fair. It is settled principle of law, that two sets of the circumstances would not have different legal effects, unless there is a difference of circumstances and the differences between the two sets is material enough to support the discrimination. The concept of law does not involve the idea of absolute qualification among human beings which is physically impossible. The guarantee of equal protection of law does not prevent or prohibit the State from applying different laws or different treatment to different persons. This Article does not restrain the reasonable' classification with regard to the operation of law. The State has power of classification on the basis of rational distinction relevant to particluar circumstances in particular situation, but where the classification is arbitrary or capricious or is not fair then that is not permissible. If the classification is relevant to the object of Act, it cannot be set aside unless the relevancy is too remote or fanciful. A classification made on the basis of race, colour or religion, should be rejected. The classification may be due to geographical situation, it may be based on the territorial, economic and other similar considerations. The Constitution itself contemplates the passing of a different law for different persons. This view finds support from PLD 1957 SC 91 and AIR 1955 SC 166.
22. In the instant case, as items produced by the petitioners are concerned, those are luxury items and the legislature while leaving a tax or education cess or any other duties has to make a difference between the items of livelihood and the items of the luxury. As the items of luxury are concerned, it is quite natural that a common man has no concern with the item of luxury and specially in this era a common man cannot think of luxury item, but it is difficult for a common man to earn the livelihood in these days so the legislature were wise enough to make a difference between the items of luxury and the items of livelihood.
23. As the arguments of the learned counsel for the petitioners is concerned that a discrimination has been committed with the petitioners carries no substance but a reasonable and rational classification has been made by the legislature. The learned counsel for the petitioners could not point out any unreasonable or capricious or arbitrary classification made by the legislature so it cannot be said that a discrimination has been committed with the petitioneRs,
24. As this argument of the learned counsel for the petitioners is concerned, that the double Education Cess has been imposed upon the petitioneRs, As it has already provided in Education Cess that 5% of the income-tax will be paid as Education Cess and now the petitioners have to pay the Education Cess again under sections 10 to 13 carries no substance as all the industries in the Azad Jammu and Kashmir have been exempted from the income-tax, thus the petitioners have also been exempted from the income-taxes. Neither the petitioners have filed or appended any documents alongwith the writ petition whereby they are paying the income-tax, so it cannot be said that the double education cess has been imposed upon the petitioneRs,
25. As the argument of the learned counsel for the petitioners is concerned, that no fiscal legislation can be made through Ordinance carries no substance because in section 2 of the Constitution, the act of the Assembly has been defined as under:-- "(2) In this Act, 'Act of the Assembly' or 'Act of the Council' shall include an Ordinance promulgated by the President under subsection (1) of section 41 or as the case may be, under subsection (4) of that section."
' Now according to this definition an Ordinance also comes within the ambit of the Act of the assembly hence the contention raised by the learned counsel for the petitioners carries no substance.
' The upshot of the above discussion is that finding no force in these writ petitions, these are hereby dismissed.