' This writ petition has been filed to challenge the order passed by respondents on September 24, 1992 and for issuance of a writ against the respondents for not charging the octroi tax from the petitioner.
2. The facts forming the background of this writ petition, as disclosed therein, are that the petitioner, MECO Electronics (Pvt.) Ltd. Is a registered Company in Azad Kashmir under the Companies Ordinance, 1984, as applicable in Azad Jammu and Kashmir. It was also disclosed that the petitioner-Company is manufacturing Television at Mirpur (Azad Kashmir) which started its production on May, 10, 1990. It was claimed that the Government of Azad Jammu and Kashmir issued a notification on January 18, 1990, whereby exemption from imposition of District Council Export Tax and Municipal Octroi Tax was granted for five years, from the date of production of the industry. It was further disclosed that the District Council Export Tax @ Rs,20 per Television/item was imposed arbitrarily from October 17, 1992. It was further claimed that respondent No, 5 was imposing octroi tax without any lawful authority. The order is challenged as without jurisdiction, lawful authority and mala fide one.
3. Ch. Lal Hussain, the learned counsel for the petitioner has raised. The following points in support of the writ petition :---
(i) That the industry was installed for investing huge amount on the incentive given by the Government for exemption from the imposition of District Council Export Tax and Octroi Tax which, after the installation of the industry, could not be withdrawn as, according to the learned counsel, a vested right accrued to the petitioner;
(ii) that in presence of the notification issued on January 18, 1990, a subsequent notification is without jurisdiction, lawful authority and mala fide. The order issued by the Government offends against the fundamental rights guaranteed to the petitioner and also against the principle of natural justice;
(iii) that the charging of municipal octroi tax by respondent No, 5 after the issuance of notification on January 18, 1990, is illegal, without jurisdiction and lawful authority;
(iv) that the petitioner is entitled to the refund of amount illegally received by the respondents from him after the issuance of above notification and before filing the Constitutional petition.
4. On the other hand, Raja Muhammad Siddique Khan, the learned counsel for the respondents opposed the petition on the ground that the notification dated January 18, 1990 was not issued by the competent authority, as such could not be termed a notification issued by the Government of Azad Jammu and Kashmir. It was explained that the notification, under the Rules of Business, could be signed by an authorised officer in the concerned Department and was to be issued as visualised in Rule 10 of the aforesaid Rules. Therefore, the notification was claimed to be an order having no validity in the eye of law, as such, the exception claimed under the above notification of January 18, 1990, was without any lawful authority. The learned counsel did not seriously contest the other points raised by the learned counsel, arising out of the above notification and challenged by the petitioner, including that of date of registration and prediction claimed in the petition. The other counsel, M/s. Muhammad Akram Mughal, Additional Advocate-General and Mian Saeed, also adapted the arguments addressed by Raja Muhammad Siddique Khan.
5. I have heard the learned counsel for the parties and also gone through the record, with care. It may be stated that both the learned counsel agree that all the orders or the instruments of the Government are issued under Rule 10 of the Rule of Business. However, in view of their conflicting interpretations made by the learned counsel for the parties, the relevant Rule shall be examined first which is reproduced : "10. Orders, instructions, agreements and contracts.---(1) All executive actions of Government shall be expressed to be taken in the name of President.
(2) Save in cases where an officer has been specifically empowered to sign an order or instrument of Government, every such order or instrument shall be signed by the Secretary, the Additional- Secretary, the Joint Secretary, Deputy Secretary, the Under-Secretary, the Section Officer to Government or the Officer on Special Duty in the Department concerned, and such signature shall be deemed to be proper authentication of such order or instrument..."
' A critical examination of the above Rule reveals that all orders or instruments of the Government shall be signed by the Secretary, the Additional Secretary, the Joint Secretary, Deputy Secretary, the Under-Secretary, the Section Officer to Government or the Officer On Special Duty in the Department concerned. The words used, "in the Department concerned" in the Rule, were claimed to be used by the learned counsel for the respondents, for all the above mentioned officers of the Government. However, according to the learned counsel for the petitioner, it is only used for the last-mentioned officer and has no relation with the other Government officers mentioned above.
The detailed examination of the above Rule clearly depicts that the word "or" has been used after the words, "the Section Officer to the Government" and the words "Department concerned" have been used only for Officer on Special Duty. Therefore, there remains no ambiguity in the Rule that all orders or instruments of the Government can be signed by any officer mentioned in the Rule, including the Officer on Special Duty in the Department concerned. The argument advanced by the learned counsel for the respondents with reference to the relevant notification of January 18, 1990 being issued by the Secretary Local Board, carries no validity in the eye of law, particularly when the Secretary Board is also Deputy Secretary to the Government and can lawfully sign such instruments deemed to be a' proper authentication of such orders or instruments. The matter can be elucidated in another way that the term "Secretary" has been defined in the Rules of Business in Rule 2 (1), item No, xxi as the Secretary means, the Secretary, or Acting Secretary to the Government in charge of a Department and includes the Chief Secretary, Additional Chief Secretary, Ex Officio Secretary In charge of a Department, Secretary to President and Principal Secretary to the Chief Executive Prime Minister. It is further provided in Rule 49 that an Officer performing an additional in ex officio capacity will be deemed to be an officer of the category of original department for the purpose of Schedule IX. Therefore, it can be concluded that the officer signing the relevant notification was lawfully competent to do the same, as such, his signatures shall be deemed to be a proper authentication of such orders not open to challenge on the grounds mentioned above.
6. The next question arises as to whether the exemption granted by virtue of notification issued on January 18, 1990 for a period of five years from the date of production, from imposition of District Council Export Tax and Municipal Octroi Tax can be withdrawn through a subsequent order made by the Government, particularly on establishment of industry attracted through the above incentive. It is a settled proposition of law that a person acquires a vested right in a matter where the Government gives such incentive and certainly such right cannot be arbitrarily withdrawn. The proposition came under consideration before a Division Bench of Dacca High Court in a case titled "Azizuddin Industries Ltd. v. Collector of Central Excise and Land Customs and others" (PLD 1967 Dacca 58) wherein it was observed: "(a) Central Excises and Salt Act (I of 1944), S. 12-A--Ministry of Finance Notification No, S.R.O. 363 (k)/63 dated 17-5-1963 and previous Central Government Notification No, S.R.0.35 (R) dated 30-6- 64---Exemption granted to excisable goods manufactured in Chittagong Hill Tracts--Not annulled by amendment of Art. 242, Constitution of Pakistan (1962)--Person establishing factory in such area on assurance held out in notifications--Acquires vested right to enjoy exemption for period mentioned in notification--Constitution of Pakistan (1962), Art. 142--Constitution (First Amendment)
Act, 1963 (I of 1964), S. 12."
7. On the basis of established law, the order passed by the Government of Azad Jammu and Kashmir on September 24, 1992 and further amended on October 12, 1992 for imposing the District Council Export Tax @ Rs, 20 on each of Television, is held to be without lawful authority.
8. So far as the imposition of Municipal Octroi Tax is concerned, the relevant notification is clear without any ambiguity that the above tax shall not be imposed for a period of five years from the date of production. Therefore, any interpretation for imposing the same runs counter to the law.
The proposition under consideration finds support from the case titled "Maj.-Gen. (Rtd) Mian Abdul Qayum v. The Mayor, Municipal Corporation and another" decided by my learned brother Mr. Justice Khawaja Muhammad Saeed, J, on February 17, 1992, wherein the `octroi' has been defined in an elaborated order, defining the same as tax levied on the entry of goods within a particular area.
Therefore, the octroi duty exempted by a notification was held to be illegal, on the entry of goods and, as such, the order issued by the Municipal Corporation for imposing the same as beyond its jurisdictional competence. In another case titled `M/s. J & N Pakistan Ltd. v. Municipal Corporation and others', decided on June 18, 1995, a similar proposition also came under consideration before this Court, wherein the proposition was resolved in the following words:--- "It is, therefore, ordered that non-petitioners shall obey, and act upon the 'above-referred Notifications and refrain from demanding changing or realizing the Octroi duty from the petitioner- Company for a period of five years commencing from the date when it was setup."
9. In view of the above discussion, the writ petition is accepted and the order passed by the respondents for imposing District Council Export Tax and Municipal Octroi Tax, is held to be without jurisdiction and lawful authority for a period of five years from the date of production of petitioner's industry. It is also directed that the above taxes received illegally, by the respondents, shall be refunded to the petitioner