This judgment will also dispose of Writ Petitions Nos. 1629, 1684, 1787, 1788, 1732 and 2051 of 1975 as similar points of law and facts are involved in all the cases.
2. The petitioners in all the cases are transporters and operate their buses on the routes in question.
It was on 19th of January 1971 when the Commissioner, Sargodha Division, vide notification, Annex.
'A'. Notified in the Punjab Gazette on 26th of February 1971, imposed atoll tax at the rate of Rs. 2 for each trip in case of loaded vehicles. The notification was in respect of the metalled roads mentioned in Schedule I thereof. According to the petitioners the toll tax being excessive several representations were made against the imposition of the same before the authorities concerned.
Ultimately another notification vide Annex. 'B' was issued by the Commissioner whereby clause (a) of the directions of the previous notification was substituted by the following :- "In case of unloaded vehicles returning within 24 hours no toll tax shall be charged, but in case of loaded vehicles this tax shall be charged once for a calendar date. In case of unloaded taxis, Cars/Carts no tax shall be charged."
The effect of the second notification was that the petitioners who are operating their buses on the routes as specified in Schedule I of the first notification were liable to pay Rs. 2 per vehicle during the whole day.
3. It is not denied by the respondents that contract for collection of toll on the routes specified in the initial notification for the year 1975-76 was auctioned on 16th of June 1975, by the District Council, Lyallpur, respondent No. 1. The rate of toll as shown in the advertisement was Rs. 2 per loaded bus per day. The highest bid being for Rs. 1,90,000.00 was accepted by the respondents but the bidder therefore, however, went back-on his position as such.
4. Thereafter yet another notification was issued by respondent No. 2, vide Annex. 'D' on 18th of June 1975, whereby notification dated 27th of February 1971, Annex. 'B', was cancelled meaning thereby, according to the respondents, that the initial notification dated 19th of January 1971 became operative in its original form levying toll tax on loaded vehicles at the rate of Rs. 2 per trip. The validity of the last notification, as mentioned above, has been questioned in the present proceedings.
5. Learned counsel for respondent No. 1 while justifying the issuance of the said notification has raised the following contentions :-
(a) The petitioners in all the cases have alternate remedy to get relief claimed for under Articles 67, 73 and 86 of the Basic Democracies Order, 1959, as well as under the Local Councils Appeal Rules framed under the order.
(b) The notification, Annex. 'A', notified in the Gazette of 26th of February 1971 was still in force. The only direction as contained in clause (a) of Schedule II was amended by way of issuing corrigendum correcting rate of toll tax. No fresh toll tax was imposed, as the rate thereof was only corrected.
(c) The Local Councils (Imposition of Taxes) Rules as framed under Article 68 of the Basic Democracies Order, are not applicable to the present case as the tax has been levied by the Commissioner in exercise of the powers delegated to him by the Government in this behalf. The tax in the present case has been levied/increased under Article 63 of the Order, by the Government itself and for that reason no fresh notification was required as contemplated by Rule 7 of the Local Councils (Imposition of Taxes) Rules.
(d) Since the notifications/corrigendum issued vide Annexs. 'A', `B', and 'D', are temporary in nature, therefore, section 5 of the West Pakistan (General Clauses) Act, is not attracted ay the said provision is applicable to permanent statutes/enactments. The amendment in the notification by way of corrigendum is not an amendment in the direction of an amendment in the statute.
(e) By the aforesaid amendment Order, issued by way of corrigendum no prejudice has been caused to the petitioners. If any of the Rules as framed under the Order has been violated. No cause of action accrues to the petitioners. Since the orders in question have been passed in good faith no proceedings challenging the same can be initiated under Article 98 of the Basic Democracies Order, 1959.
4. Learned counsel for the respondent has relied upon certain authorities in order to show that in the case of alternate remedy being available, extraordinary jurisdiction of this Court under Article 199 of the Constitution cannot be invoked. He has also relied upon the provisions as contained in Articles 67, 73 and 86 of the Basic Democracies Order, 1959, as well as the Appeal Rules framed under the relevant provision of law. I am afraid the said authorities are not applicable to the facts of the present case. The question to be seen in this regard is as to whether relief by way of writ should be denied merely because some other remedy under the general law is available irrespective of the fact that the said remedy is expensive, not adequate and not equivocal.
According to law the other remedy to be adequate one, must be efficacious, convenient, beneficial and effective, It A should be equally inexpensive and expeditious. It has been held m Anjuman-e- Ahmediaya, Sargodha v. The Deputy Commissioner, Sargodha and another (PLD1966SC639) that :- "When the relief sought for is by its nature one which lends itself to be effectively remedied by orders of the nature contemplated in paragraphs (a), (b) and (c) of sub-Article (2) of Article 98, then the intention of the Constitution appears to be that the remedy granted by the Constitution should be made available to the citizens unless the Court is satisfied that the other adequate remedy is provided by law. The other adequate remedies provided by law would, in the ordinary circumstances, have reference to the remedies provided by the particular statute itself which has created the right or obligation and not a general remedy at law, as for example by a suit. On the other band if the remedy sought for is in substance a remedy which is available under the ordinary law then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of a suit can hardly be considered to be an adequate alternative remedy. A suit is by no means as inexpensive or speedy or beneficial a remedy as the remedy provided by this Article."
The law laid down in this authority by their Lordships of the Supreme Court was followed by a Division Bench of this Court in Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others (1). . In the present case it cannot be denied that the relief sought for by its nature can be effectively remedied by orders of the nature contemplated in the relevant paragraphs of Article 199 of the Constitution. Even otherwise so far as facts of the case are concerned alternate remedy in the present case as provided by other law is not available to the petitioners. The remedy by way of appeal has been provided by the Local Councils Rules which apply to all the appeals preferred against the orders passed under the Basic Democracies Order, 1959. Rule 2 provides appeal to the controlling authority against an order passed by a Local Council or its Chairman and the Chairman of the Local Council against an order passed by an officer or servant of a local council or any other person who has been authorized in this behalf or to whom the powers have been delegated by a Local Council or its Chairman. In the present case the impugned order vide Annex. 'D' cancelling the notification dated 27th of February 1971, has been passed by the Commissioner, Sargodha Division, and as such question of filing appeal against his order under the Rules as referred to above, does not arise.
5. Learned counsel has drawn my attention to Article 67 of the Basic Democracies Order providing a petition to be presented to such authority as prescribed against the assessment of a tax, rate, toll or fee under the Basic Democracies Order. Article 73 provides that the Government shall exercise general supervision and control over the local councils in order to ensure that their activities conform to the purposes of the Order, and Article 86 provides remedy of appeal against an order passed by a Local Council or its Chairman. It has been argued that at least a petition/ representation can be filed by the petitioners against an order of the Commissioner to the Government/Secretary of the Department concerned. So far as the provision as contained in Ar icle 73, as referred to above, is concerned the arguments advancei in this behalf cannot be based thereon, as it relates to general supervision by the Government over affairs of the local councils in order to ensure that their activities conform to the purposes of the Basic Democracies Order. The power with regard to general supervision does not mean that any order passed by a local council can be set aside in exercise of appellate or revisional jurisdiction. Such jurisdiction cannot be exercised unless it is specifically conferred in respect of certain orders passed by certain functionaries of the local councils. Article provides petition/representation to be made by a person aggrieved against the assessm ent or tax, rate, toll etc. It is true that the Article, referred to above, authorises the Government or the authority prescribed by it to decide the petition/representation filed by an aggrieved person but the language as used therein does not provide the right of being heard before the said petition is decided. The provision as such cannot be called adequate and efficacious one. This view gets support from Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others (PLD 1973 Kar. 344). It was a case under West Pakistdn (Maintenance of Public Order)
Ordinance, 1960. The detention of one Hadi Bux resident of Larkana District under the said Ordinance had been challenged before the High Court. The maintainability of the writ petition was challenged among other grounds on the ground of alternate remedy being available under subsections (6) and (6) (a) of section 3 of the Ordinance which provides that a representation being made to the Government the same will be considered and the detenu will be given an opportunity of being heard before the order of his detention is modified, confirmed or rescinded. It was held that the language as used in the provision did not cast any duty upon the Government to consider the representation and give the person detained an opportunity of being heard before deciding the tatter. In consequence the remedy provided as such was held not to be adequate. In the present case Article 67 does not provide any right of. Being heard by an aggrieved person in regard to his petition filed before the Government. As such it cannot be considered to be an adequate or efficacious remedy.
6. The order in question has been passed by the Commissioner concerned and its validity or otherwise can be scrutinized by this Court in exercise of its extraordinary jurisdiction under Article 199 of the Constitution when no other adequate remedy is otherwise provided.
7. It has been argued that since the notification dated 27th of February 1971, Annex. --B', was issued as corrigendum in regard to direction (a) of Schedule II of the notification dated 19th of January 1971, therefore, the same could be withdrawn at any time. It did not aim imposition of any fresh tax while the rate of toll tax was only altered. It may be mentioned that the first notification dated 19th of January 1971, Annex. 'A', was issued by the Commissioner, Sargodha Division after having followed the procedure as laid down in Local Councils (Imposition of Taxes) Rules framed under Article 68 of the Basic Democracies Order. The taxation proposals as made by the District Council after having been sanctioned by the Commissioner were notified in the official Gazette vide Annex.
'A'. Direction (a) as contained therein provided that in case of loaded vehicles tax would be charged for each trip while amendment as made vide Annex. 'B', notification issued on 27th of February 1971, providing that tax would be charged in the case of such vehicles once for a calendar date. The notification in question Annex. 'D', dated 18th of June 1975, has cancellcd the notification dated 27th of February 1971. If it is a corrigendum as argued by the learned counsel for the respondents then the mistake so rectified became part and parcel of the notification dated 19th of January 1971, even in the case of amendment in the rate of toll, as mentioned above, the same also became part and parcel of the said notification. The question which needs consideration is as to whether after cancellation of the notification dated 27th of February 1971, Annex. 'B', the notification dated 9th of January 1971, would be affected or the original direction (a) as contained in the said notification would automatically be revived with the repeal/cancellation of the notification dated 27th of February 1,471, which substituted the direction (a) by another one. According to law repeal of the amending Act does not affect the continuance of the amendment which, in fact, becomes a part and parcel of the main Act. If such is the intention, d it would have to be either expressly stated or there must appear clearly a different intention. The repeal of an earlier statute is not to be presumed by implication on coming into force of later statute unless the provisions of the later statute make it so clear. Reference in this respect can be made to Abdul Majid v. The Custodian of Evacuee Property, West Pakistan and others (PLD 1962 Kar. 306) and Messrs Nau-Asio Trading Co.
Ltd. v. Sh. Saeed Ahmad, Civil Judge, 111 Class and another (PLD 1966 Lah. 268). In the first case as mentioned above the order of the learned Custodian, Evacuee Property, West Pakistan, Karachi dated 27th of August 1959, was challenged before the High Court whereby it was held that he was not competent to review an earlier order of the Custodian as according to him the repeal of the amending Act XLV of 1958 by Ordinance XXII of 1959 had the effect of reviving the proviso to section 43(6) of Act XXX of 1957 which had been deleted by Act XLV of 1958. It was held that the plain effect of section 6-A of the General Clauses Act was that the repeal of an amending Act did not affect the amendment introduced as it became part and parcel of the main Act. It was further held that the words of section 6-A of the General Clauses Act were so clear that there was no need to refer to any case-law. However, their Lordships of the High Court referred to Shree Gopal Paper Mills Ltd. v.
Ram Labbaya Mal and others (AIR 1960 Pb. 375). In that case it was urged that since section 33 of the Industrial Disputes Act was amended by virtue of the Industrial Disputes Act XLVIII of 1950 and that Act was itself repealed by the Industrial Disputes Amendment Act of 1965, the earlier amendment ceased to exist and the law, therefore, stood as it was before the amendment. This contention was repelled and it was held that the repeal of an amending Act does not have the effect of destroying the amendment.
8. The facts of the second case are that the defence of the petitioner before High Court had been struck -of by the Rent Controller under section 13(6) of the Ordinance. The petitioner first tried to get the order set aside by making an application before the Controller on the ground that he being Civil Judge III Class had no jurisdiction to act as Rent Controller. He ultimately fil:d writ petition before the High Court challenging the validity of the initial order passed against him. As many as five notifications had been issued by the Provincial Government notifying different judicial officers in different areas in the province to perform the functions of the Controller within their respective jurisdiction. Some of the notifications expressly superseded earlier notifications. The question involved in the case was with regard to interpretation of the said notifications. In the first notification, issued on 12-3-1959, all First Class and Second Class Civil Judges and Subordinate Judges in West Pakistan were authorised to act as Rent Controllers ; in the second notification all Third Class Civil Judges and Subordinate Judges in West Pakistan were authorised to act as Rent Controllers in addition to the First and Second Class Civil Judges, as mentioned in the first notification ; in the third notification, issued on 25-3-19b4, all First and Second Class Civil Judges in West Pakistan were authorised to act as Rent Controllers. The fourth notification was with regard to appointment of all Third Class Civil Judges in Quetta Division to perform the functions of Rent Controllers. The fifth notification, issued on 24-11-1964, authorised all the First and Second Class Civil Judges in West Pakistan to act as Rent Controllers. It was argued that by the enforcement of the subsequent notifications after 30-10-1963, when the second notification was issued authorising all the Third Class Civil Judges to perform their functions as Rent Controllers, the same was superseded and was annulled by implication. It was held that the second notification authorising the Third Class Civil Judges to act as Rent Controllers was an independent one and was not by way of amendment to the first notification ; it authorised all Third Class Civil Judges to act as such in addition to the First and Second Class Civil Judges. It was further observed, while discussing the point involved, that it is firmly established principle that repeal by implication cannot be favoured ; a Statute cannot be held to have been repealed by implication without some strong reasons and unless such result becomes inevitable. It was further observed that there was no warrant, so far as the facts of the case were concerned, for the suggestion that the second notification was in the nature of an amendment to the first notification so that after engrafting amendment, it could not survive the first notification ; meaning thereby that if the second notification authorising the Third Class Civil Judges to perform their functions as Rent Controllers had been issued by way of amendment to the first one, then after the first notification was repealed that amendment could not survive being part and parcel of the first notification.
9. Maxwell in his book 'Maxwell on the Interpretation of Statutes', published in 1962, at page 393 under 'Repeal Commencement', has also dealt with this aspect of the case. According to him where the provisions of one Statute are, by reference, incorporated in another but the earlier Statute is afterwards repealed, the provisions so incorporated obviously continue in force, so far as they form part of the second enactment. By giving an illustration, it has been stated that when Wine and Beerhouse Act, 1869, enacted that certain provisions as to appeals to quarter sessions comprised in the Alehouse Act of 1828 should have effect respecting grant of certificate under the new Act and the Licensing Act, 1872 repealed the Alehouse Act, 1828, it was held that those provisions remained in force so far as they formed part of the Wine and Beerhouse Act, 1869.
Maxwell further goes on to say that where a be-law is made under an Act the repeal of the Act abrogates the be-law unless the be-law is preserved by the repealing Act. And where a section of a public Act is incorporated in a private Act the subsequent repeal of the public Act will not repeal the section incorporated in the private Act.
10. Similarly in the present case, the amendment introduced vide notification Annex. 'B' having become part and parcel of the notification Annex. 'A' cannot be considered to have been repealed by the notification Annex. 'B' unless so otherwise intended, which intention apparently is not found in the last notification.
In the present case, as discussed above; the notification Annex. 'B', dated 27-2-1971, substituted the amendment in direction (2) of the notification dated 19-I-1971, Annex. 'A', which was cancelled by the notification dated 18-6-1975. The notification Annex. 'B' was by way of amendment to the first notification and after its enforcement it became part and parcel of the first one. According to law its annulment would not affect the amended notification Annex. 'A', as the amendment introduced has become part and parcel thereof. If the argument of the learned counsel for the respondent, that the notification Annex. 'B' was a sort of corrigendum to the first notification, is accepted to be correct then all the more by cancelling the second notification, Annex. 'B' the corrigendum having become part of the first notification would be still operative until the first notification is withdrawn. The above discussion, therefore, disposes of the contentions raised at (a) to (d).
11. It has also been argued that since the amendment as contained in the notification Annex. 'B' has been made in good faith by respondent No. 1, therefore, the order passed in this behalf does not give any cause of action to the petitoners.
12. I am afraid, this contention his no force in the circumstances of the case. The main question to be seen is as to whether the notification dated 18-6-1975 would adversely affect the amended notification Annex. 'A', dated 19-1-1971, after the amendment as introduced vide notification Annex.
'B' became its part and parcel. The act on the part of the respondents in considering the amendment introduced vide notification Annex. 'B' having become annulled is obviously without jurisdiction and, therefore, the same cannot be treated to have been made in good faith. Since the amendment as introduced by the notification Annex. 'B' has not ceased to exist on account of the enforcement of the notification Annex. 'B', therefore, any action on the part of the respondents in violation thereof gives cause of action to the petitioners.
13. It is further submitted by the learned counsel for the respondents that since the notification Annex. 'B', though by way of corrigendum, is temporary in nature, therefore, section 5 of the West Pakistan General Clauses Act, 1956 will not be applicable to the facts of the case. It is further contended that even otherwise West Pakistan General Clauses Act will not be applicable in the case of notification as does not amount to enactment.
14. I am afraid, the contentions raised above have no substance. The notification Annex. 'B' was not for a specific period. The first notification was issued on 19-1-1971 whereas the second one (Annex. - -B') on 27-2-1971). It remained operative for a long time when it was cancelled on 18.6-1975, after a lapse of more than for years, vide Annex. 'D'. In this view of the matter the said notification cannot be called to be temporary one. The principle as laid down in section 5 of the West Pakistan General Clauses Act, 1956 is as follows :- "Where any West Pakistan Act repeals any enactment by which the text of any enactment was amended by the omission, insertion or substitution of any matter, then unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."
Even if it is accepted for argument's sake only that the definition of 'enactment' as given in section 2(23) of the General Clauses Act does not cover notification, there is no doubt in my mind that the principle as laid down in section 5 will be applicable even in the case of a notification. It cannot be denied that the amendment as introduced by notification Annex. 'B' admittedly became part and parcel of the notification Annex. 'A' and by the withdrawal of the notification Annex, 'B' the said amendment would not become inoperative until the initial notification Annex. 'A' is withdrawn or cancelled.
15. The above discussion would show that by the issuance of the notification dated 18-6-1975, Annex. 'D', the amendment introduced on 27-2-1971 vide Annex. 'B' would not become inoperative. It is still in existence being part and parcel of the notification dated 19-1-1971, Annex. 'A', which the respondents admit to be in operation. As such the respondents cannot collect the toll tax, in the case of loaded vehicles, at the rate of Rs. 2 per trip.
16. In view of the foregoing reasons all the writ petitions are accepted in the terms stated above.
There will however, be no order as to costs.