1. SYED HAIDER ALI PIRZADA, J.---In these for petitions, common questions of law and fact are involved.
2. Therefore with the consent o1 the learned counsel appearing for the parties, they were heard together to be governed by this common judgment.
3. The petitioners have their Textile Mills at Dhabeji in District Thatta The respondent No.1 is receiving octroi from the petitioners on imported goods through the contractor. It is alleged that for the past five years, the respondent No.1 has been increasing the octroi on the weightage basis but subsequently. Increased the octroi on percentage basis in the year 1990 vide notification No.UDC/90 of 1990 published in Sindh Government Gazette dated 9-4-1990 with effect from 1-7- 1990 and for item No.103 at No.3 was fixed Re.0.02 paisas, per rupee. The petitioners filed joint appeal before the Additional Chief Secretary, Local Government and Rural Development, Government of Sindh, Karachi which was allowed by order dated 30-5-1990. By this order, the octroi schedule was set aside and the Union Council, Dhabeji, was allowed to enhance the rates on six items to the extent it was revised in the year 1988 and directed the Union Council to amend the new octroi schedule accordingly. It appears that the Union Council filed a review petition before the Additional Chief Secretary, Local Government which was allowed and the Union Council, Dhabeji was allowed to charge octroi on percentage basis on items No. (11), (100), (103), (105), (43) and (181).
4. The petitioners filed Constitution petitions being C.P. No. D-405/91, 412/91, 438/91 and 442/91 in this Court. These petitions were allowed by judgment dated 17-7-1991, whereby declaring order dated 31-3-1991 as void and illegal and held that order dated 30-5-1990 is valid and legal. The respondent No. 1 being aggrieved against the judgment dated 17-7-1991 of the Division Bench of this Court, filed a petition for leave to appeal before the Supreme Court. Leave to Appeal was granted vide order dated 8-11-1991.
5. The appeals were allowed by judgment dated 8-5-1992. The Supreme Court held that in the absence of delegation of powers, both orders passed by the Additional Chief Secretary on 30-5- 1990 and 31-3-1991 are void and liable to be struck down. In this view of the matter, the Constitution petitions were dismissed.
6. The respondent No.1 issued Notification No. UDC/180-B/92, dated 16-5-1992. The Notification was duly published in the Sindh Government Gazette dated 21-5-1992. By this Notification, the respondent No.1 restored its earlier notification bearing No. UDC-10-1990 dated 9th April 1990. The said notification provides that with effect from 18-5-1990 octroi on all goods which will be imported within the Union Council, Dhabeji, shall be liable to charge octroi in accordance with rates prescribed to the schedule of octroi published in the Notification No. UDC-10-1990 dated 9th April 1990 in compliance with the resolution passed by the Council in its meeting dated 16-5-1992.
7. The petitioners have challenged the said Notification through these petitions.
8. The respondent No.1 contested these petitions by filing counter affidavits contending that the petitioners have not paid octroi tax and present petitions have been filed to retain illegal gains. The respondent No.1 asserted that on account of the judgment of the Hon'ble Supreme Court, the schedule prescribed by the Additional Chief Secretary vide his order dated 30-5-1990 became non-existent and the schedule which was set aside by that order namely, Schedule dated 9-4- 1990 became revived automatically and became effective from 1-7-1990. The respondent No.1 contended that the schedule promulgated by the Additional Chief Secretary vide his order dated 30-5-1990 became an exercise in futility after the judgment of the Hon'ble Supreme Court.
9. We have heard Messrs Sulleman Habibulah, Iqbal L. Bawani and Syed Nasir Hussain Zaidi, learned counsel appearing for the petitioners and Messrs Muhammad Sharif and G.H. Abbasi, learned counsel for the respondents 1 and 2 and Mr. Muhammad Zahir Qureshi, learned counsel appearing in response to Court notice.
10. The Notification dated 16-5-1992 has been challenged on several grounds; counsel for the petitioners, in these petitions, have raised only three contentions on the basis of which the invalidity of the notification has been pressed into service before us, namely: (1)The Notification dated 24-1-1992 published in the Sindh Government Gazette and the Schedule passed and accepted by the respondent No-1 in the special meeting held on 9-1-1992 cannot be cancelled or taken back without adopting legal procedure.
11. (2)The Schedule dated 14-1-1992 passed by the Council cannot be cancelled by the Chairman, Union Council, Dhabeji.
12. (3)By the judgment of the Supreme Court the notification and octroi schedule dated 14-1-1992 has not become redundant or cancelled.
13. In our view, there is no substance in any of the contentions and we proceed to give our reasons for our view in regard to each presently.
14. As regards the first contention raised by the counsel for the petitioners, it will be necessary to see section 60(s) of Sindh Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance and powers contained in the Sindh Councils (Imposition of Taxes) Rules, 1979 (hereinafter referred to as "the Rules"). Section 60 of the Ordinance provides that a Council may levy, in the prescribed manner, all or any of the taxes, rates, tolls and fees mentioned in Schedule V. Subsection (3) provides that all taxes, rates, tolls and fees levied by a Council shall be notified in the prescribed manner and shall, unless otherwise directed by Government, be subject to previous publication.
15. Subsection (4) provides that where a Council levies a tax, rate, toll or fees, it shall specify the date on which such tax, rate, toll or fees shall come into force.
16. Rule 4(1) of the Rules provides that every taxation proposal prepared under Rule 3 shall be published along with a notice in daily newspapers for inviting objections and suggestions thereon within fifteen days of publication of the taxation proposal. Sub-rule (2) provides that what a notice may specify. Rule 5 deals with hearing of objections and suggestions to the preliminary taxation proposal. Rule 7 deals with publication of the sanction of taxation proposal.
17. Notification No. UDC/90 of 1990 dated 9-4-1990 was issued in exercise of powers conferred by Section 60 of the Ordinance and Part III of the Schedule thereto. This revised Octroi Schedule was to take effect from 1-7-1990. The petitioners went in appeal before the Additional Chief Secretary who set aside the octroi schedule and prescribed his schedule vide his order dated 30-5-1990. The respondent No.1 filed a review petition before the Additional Chief Secretary which was allowed by his order dated 31-3-1991. Feeling aggrieved by this action of the Additional Chief Secretary, the petitioners filed Constitution Petitions (Nos. 403 of 1992, 405 of 1992, .412 of 1992, 438 of 1992 and 442 of 1992) in this Court challenging the order. The positions were accepted. Against the judgment dated 17-9-1991 the respondent No.1 went in appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that the orders dated 30-5-1991 and 31-3-1992 passed by the Additional Chief Secretary are void as he had no jurisdiction to entertain appeal and review his own order. It is pertinent to note that on the basis of order dated 30-5-1991, the respondent No. 1 issued new revised Schedule on 14-1-1992.
18. The main argument of the petitioners is based on this notification (dated 14-1-1992). It is urged that the said notification dated 14-1-1992 remained in the field and would still hold good.
19. In our view, the contention proceeds upon a misconception of the legal position in the matter and ignores that the basis of the said notification had gone because the orders dated 30-5-1991 and 31-3-1992 do not exist. Notification dated 14-1-1992 was valid when the impugned orders dated 30- 5-1991 and 31-3-1992 were passed and remained valid till judgment of the Hon'ble Supreme Court.
20. The orders dated 30-5-1991 and 31-3-1992 of the Additional Chief Secretary were valid and remained valid till the notification dated 4-1-1992 was issued by the respondent No.1 and became bad on the passing of the judgment of the Hon'ble Supreme Court on 8-5-1992. Now that notification dated 14-4-1990 revives by the application of the doctrine of eclipse as it is no longer overshadowed by orders dated 30-5-1991 and 31-3-1992.
21. The next contention is that notification dated 14-4-1990 was amended by orders dated 30-5-1991 and 31-3-1992 of the Additional Chief Secretary and the said notification has neither been re- issued nor validated by the respondent No.1. Therefore the said notification dated 14-4-1990 does not exist. Consequence of this, it is alleged, is that it is not open to the Union Council to issue notification dated 16-5-1992. The argument on behalf of the respondents Nos.1 and 2 is that even though notification dated 14-4-1990 was set aside by the Additional Chief Secretary, now the Hon'ble Supreme Court declared that the orders dated 30-5-1991 and 31-3-1992 were invalid as the Additional Chief Secretary had no jurisdiction to set aside the notification dated 14-4-1990, the notification dated 14-4-1990 must be held to have revived.
22. The true effect of orders dated 30-5-1991 and 31-3-1992 is to render the notification dated 14-4-1991 inoperative to the extent of inconsistency. It is overshadowed by the aforesaid two orders dated 30-5-1991 and 31-3-1992 and remains dormant but it is not dead. With the setting aside of orders dated 30-5-1991 and 31-3-1992 by the Hon'ble Supreme Court, the notification issued on 14-4-1991 was legal. The effect of judgment of the Hon'ble Supreme Court was to remove the shadow and to make the notification free from infirmity The above view is supported by a decision of Hon'ble Supreme Court in the case of Province of East Pakistan v. Md. Mehdi Ali Khan and others PLD 1959 SC 387. It was held at page 412 as under:--- "To sum up, the law described to be void by Article 4 by reason of its conflict with a fundamental right cannot be said not to have been in force merely by reason of the whole or any portion of it having been in conflict with a fundamental right. The law was in force not only because there were persons and territories to which the fundamental rights did not extend and in respect of such territories and persons the law had full operation but because it was void only in the sense that in the decision of a particular case which brought it into conflict with a fundamental right it had to be ignored or disregarded. The moment the fundamental right was taken away by an amendment of the Constitution the law again became operative without its being re-enacted. That this was the sense in which the word `void' was used by the framers of the Constitution becomes perfectly clear from Article 192 of the Constitution which envisages a position where by an order of the President the right to move the Court for the enforcement of a fundamental right is temporarily suspended.
23. On such suspension being ordered the law becomes immediately operative without its being re- enacted. If the law was void ab initio, that is to say, if it did not exist on the statute book, it would require enactment on the making of an order suspending the operation of fundamental rights. Mr. Suhrawardy has gone to the extent of contending that the effect of word `void' as used in Articles 4 and 110 of the late Constitution is that the conflicting law can never be deemed to have been in existence and that if by an amendment of the Constitution or by the making of an order by the President suspending the fundamental rights or by the repeal of the conflicting central legislation the inconsistency, repugnancy or contravention is removed, the law must be re-enacted afresh. He is driven to this result by the logic of his own argument, only to find that the position in which he thus lands himself is wholly unsustainable and directly opposed to the entire trend of authority. The contention, if given effect to, would lead to startling results and the most unmanageable situation which were far beyond the contemplation of the framers of the Constitution. The position may and is indeed, different where the legislature suffers from an inherent lack of power to enact a law. Such law is void ab initio and must be deemed never to have been enacted, and if it exists on the statute book, it has no legal sanction and is essentially of the nature of an unauthorised writing on the statute book Even if the defect of lack of jurisdiction is removed by a subsequent conferment of the requisite legislative power, the law enacted when no such power existed will continue to be void and will create no rights or obligations unless it be re-enacted. There is thus a fundamental difference between a law that is made by an incompetent legislature and a law made by a competent legislature but which is in conflict with a fundamental right the former being void on general principles the latter being void only to the extent of the repugnancy, in the sense that it cannot be applied to a particular case. The former remains void unless re-enacted by a competent legislature, the latter requires no reenactment and as pointed out in the Australian cases cited above, becomes fully operative when the inconsistency or repugnancy is removed by an amendment of the Constitution or the central law. It cannot, therefore, be said that the laws which were in conflict with the fundamental rights were not "in force" immediately before the Proclamation of 7th October. The were void so long as they were in conflict with the fundamental rights, but the Constitution having now been abrogated the inconsistency or the repugnancy has disappeared as it would have disappeared by an amendment of the Constitution, and they regain their full operation, unaffected by any Constitutional limitation or restriction except lack of power.
24. Their validity or voidance has to be judged when a case calling for their operation arises and if the fundamental rights do not exist when a law has to be applied to a case, it must be applied as it was enacted and amended from time to time, without subjecting it to the disability of inoperativeness by a Constitutional command which has ceased to govern. The Constitution has been abrogated and not repealed. It has been abrogated because the authority abrogating it did not derive its powers from the late Constitution, but acquired it independently of that Constitution.
25. The present laws have the new authority as their source and there can, therefore, be no question of the repeal of any pre-proclamation law. A repeal implies that the legislature enacting it is a legislature recognized by the Constitution which continues, and an authority which abrogates the Constitution and the entire legal system and gives recognition to that system only to the extent that it decides upon cannot be said to have repealed the laws which it has refused to recognize.
26. Learned counsel for the respondents endeavored to make the point, which does not really arise in the present case, that a post Constitutional law if it contravenes a fundamental right is void ab initio like a law enacted by an incompetent legislature. No doubt clause (2) of Article 4 imposes a prohibition on legislation but such legislation, if enacted, is not void ab initio. The clause contemplates cases where inadvertently, not deliberately because no legislature would intentionally disobey a Constitutional prohibition, the legislature enacts a law which collides with a fundamental right but the result here is precisely the same as in the case of an existing law under clause (1) of the Aritcle --- the law is void only "to the extent of such contravention" and not void ab initio like legislation which suffers from the incident of an inherent lack of power:'
27. The other aspect of the case is that notification dated 141-1992 is exercise in futility in view of the judgment of the Lahore High Court. (See PLD 1990 Lah.121, para.39 on page 148).
28. It was held on page 1149 in-Messrs Jeson International (Pvt) Ltd. v. Income-tax Officer, Company Circle C-7, Karachi and 3 others (1989 PTD 1141) as follows: "The notice as it stands is severable and if one part of it is illegal it will not render the whole notice as illegal and without jurisdiction. Therefore the notice to the extent of illegality mentioned above is not valid and any order passed on the basis of that part of the notice cannot stand. We therefore declare the impugned show-cause notice relating to purchase of plots and salary of engineers and store-keepers as without jurisdiction and of no legal effect."
29. In Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 it was held on page 116 as under:-- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of how recognizing as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
30. In Muhammad Ayub Khuhro v. Pakistan and 2 others PLD 1960 SC (Pak.) 237, the Hon'ble Supreme Court held on page 252 as follows:-- "An order or judgment by a Court which lacks jurisdiction in the matter is a nullity and there can be no question of confirming what does not exist in law. Just as a void agreement cannot be ratified and is not enforceable unless the ratification itself amounts to a new contract, a void transaction remains void and cannot be ratified or confirmed. In the present case, if the Special Judge had no jurisdiction W try and convict the appellant of an offence under Martial Law Regulation No.26, the proceedings before him were void ab initio, and he produced nothing which could be confirmed by an Administrator under Martial Law Order No.10. What had to be confirmed by the Administrator was proceedings of a case tried under the Martial Law Orders and Regulations by a "Criminal Court as established by law", and if this condition was not satisfied, namely, that the proceedings were not of a "Criminal Court established. By law", the order of confirmation itself was void and the High Court by quashing the conviction and the sentence would not come into conflict with an order made by the Administrator. It would certainly not come into conflict with the Martial Law Order itself, and it is accepted by the High Court that if a conflict between a Martial Law Order and an appellate order does not arise, the jurisdiction of the High Court to entertain an appeal would not be affected."
31. The dictum laid down in the above decisions was followed by a Full Bench of the Karachi Bench of erstwhile High Court of West Pakistan in the case of Persumal and others v. Government of Pakistan and others PLD 1960 (W.P.) Karachi 690 and it was held at page 695 as under:-- "In this view of the matter, the orders of the Custodian of Evacuee Property, which are the subject- matter of the references made by the Central Government and which being a nullity added to a nullity, do not declare any evacuee to be non-evacuee nor evacuee property to be non-evacuee property, which is -a prerequisite of a valid reference under section 43-A."
32. In this view of the matter, we are of the humble view that the orders dated 30-5-1991 and 31-3-1992 of the Additional Secretary being nullity added to a nullity. The issuance of new schedule by notification dated 14-1-1992 is invalid.
33. The contention of Mr. Sharif is that this Court .Cannot exercise its Constitutional jurisdiction so as to perpetuate injustice. This contention is well founded.
34. We may observe that the Constitutional jurisdiction is a discretionary jurisdiction. It can be pressed into service to foster the cause of justice and for p the good of the public and the country at large.
35. It is well-settled principle of law that even where an impugned order is illegal, the Court may decline to press into service its Constitutional jurisdiction if so doing would instead of advancing the cause of justice, would defeat the same. In Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236, it was held that an order in the nature of writ of certiorari or mandamus is discretionary order. Its object is to foster justice and right a wrong. It was also held that the High Court acted properly in declining to set aside the order of the Officer on Special Duty even though the same was clearly without jurisdiction as it would have resulted into restoring an illegal order of the Deputy Claims Commissioner.
36. The above principle has been reiterated by the Hon'ble Supreme Court repeatedly. Suffice to refer the cases of Wali Muhammad and others v. Saki Muhammad and others PLD 1974 SC 106, The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, Syed Nazim Ali etc. v. Syed Mustafa Ali etc. 1981 SCMR 231, Muhammad Umar v. Member, Board of Revenue and 9 others 1985 SCMR 1591, Messrs Norwich Union Fire Insurance Society Limited v.
37. Muhammad Javed Iqbal and another 1986 SCMR 1071 and Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504.
38. The above principle of law is very aptly applicable to the instant case.
39. In the light of foregoing, we have no difficulty in reaching the conclusion that the petitioners are not entitled to grant .Of reliefs in the extraordinary jurisdiction of this Court.
40. In the result, we find no substance in these petitions. Accordingly, these petitions fail and are dismissed. The petitioners shall bear the costs of the proceedings.