1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- In Constitutional Petitions 467 to 472 of 1997, petitioners have separately made following prayers:-- "It is, therefore, prayed on behalf of the petitioner as follows:-
(i) That this Honourable Court may be pleased to declare that the notification, dated 11-11-1997, as having been issued in abuse of authority and such of no legal effect.
(ii) that this Honourable Court may be pleased to declare that by virtue of notification, dated 19-4- 1995, read with notification, dated 2-8-1995, the petitioner have acquired a vested right and any unilateral arbitrary change in the same is without lawful authority and has to be struck down.
(iii) that the levy and or imposition of 5% surcharge on the Octroi is also without lawful authority as the same is to be paid by the respondent No,3 and cannot be recovered from the petitioner.
(iv) any other relief that this Honourable Court may deem fit and proper under the circumstance of the case."
2. ' Because, as common question of law and facts is involved in all the petitions, therefore, we have proposed to dispose them of jointly, by this judgment.
3. ' Precisely the facts of the case are that petitioners have got their Factories/Textile Mills, situated within Hub Industrial Area. For the purpose of spinning of cotton yarns, they have to bring cotton bales, from different parts of the country to their respective Textile Mills. It is the grievance of petitioners that initially vide notification, dated. 19th April, 1995, issued by the Government of Balochistan, they use to pay octroi at the rate of Rs,11 per bale, instead of 1% of the value of goods.
4. Subsequent thereto, on the representation of Textile Owners, the Government of Balochistan, agreed to charge octroi, per bale, at the rate of Rs,11 instead of 1% of the value of cotton with effect from 1st July, 1997, for a period of five years. It is the case of petitioners that Messrs Bela Builders (Pvt.) Limited, obtained the contract of collection of octroi, for a period of one year, commencing from 1st July, 1997 to 30th June, 1998, at the total bid of rupees thirteen Crore, payable in ten instalments. Later on, respondent No,1, vide Notification under consideration, dated 11th November, 1997, withdrew the earlier Notification, dated 19th April, 1995. And directed that Town Committee, Hub, shall charge octroi on cotton bales, at the rate of 1.5% of the cost. It would be appropriate to reproduce hereinbelow the said Notification for conscience:-- "NOTIFICATION ' No,5-197/82(BLGD)AO-IV.-- In partial modification of this Department Notification No,5- 52/84/BLGD/AO-IV/393-425, dated 19th April, 1995, the Government of Balochistan in the Local Government Rural Development and Agrovilles Department is pleased to withdraw its abovesaid Notification and direct that Town Committee, Hub shall charge octroi on cotton bales at the rate of 1.5% of the cost instead of Rs,11 (Rupees eleven) per cotton bale with immediate effect."
5. ' Against the above Notification, representations were made by petitioners throughout All Pakistan Textile Mills Association, agitating that twelve hundred per cent. Increase in octroi of raw cotton at Hub vide above Notification, is highly illegal and unwarranted, therefore, this Notification be suspended/withdrawn and old rate of octroi of Rs,11 per bale be restored. It is also the grievance of petitioners that in pursuance of section 11 of the Balochistan Finance Act, 1996, 5% surcharge was levied on the contract amount, payable by all the Octroi Contractors of Local Councils of Balochistan, but surprisingly, on 8th September, 1997, the respondent No,1, issued a letter addressing to all the Administrators, District Councils, Town Committees, Union Councils, Municipal Committees, wherein they were asked to ensure that Octroi/Zilla Tax Contractors are collecting 5% surcharge from octroi/Zilla Taxpayers and such amount be collected and remitted to the Department, every month. It would be appropriate to reproduce hereinbelow, subsections (1) and
(2) of section 11 of Balochistan Finance Act, 1996, as well as the letter issued by respondent No,1, for ready reference:-- "11. (1) There shall be levied a surcharge on Octroi Contract at the rate of 5% of the Contract amount to be paid by all the Octroi Contractors of the Local Councils in Balochistan.
(2) The tax shall be paid by the Contractor in the manner to be prescribed by the Government."
6. ' No,1-185/92(BLGB)AO-IV GOVERNMENT OF BALOCHISTAN LOCAL GOVERNMENT RURAL DEVELOPMENT AND AGROVILLES DEPARTMENT. (LOCAL COUNCILS WING).
7. Dated Quetta, the 8th September, 1997.
(1) The Administrator, Municipal Corporation, Quetta.
(2) The Administrator, District Councils.... (all.)
(3) The Administrator, Municipal Committees ... (all).
(4) The Administrator, Town Committees ... (all).
(5) The Administrator, Union Councils ... (all).
8. ' Subject COLLECTION OF 5% SURCHARGE.
9. ' It may be assured that Octroi/Zilla Tax Contractors are collecting 5% surcharge from Octroi/Zilla Tax-payer and such amount be collected and remitted to this Department every month."
10. ' Messrs Zahid Alvi and Akhtar Ali Mehmood, Advocates, appeared on behalf of petitioners, whereas Malik Sikandar Khan, learned Advocate-General, represented the Government of Balochistan. Mr. Farooq Rashid, Advocate, appeared for Town Committee, Hub and Mr. K.N. Kohli, Advocate, gave appearance on behalf of Messrs Bela Builders, the Contractor.
11. ' On behalf of petitioners, it has been contended by Mr. Akhtar Ali Mehmood, learned counsel, that the Notification is illegal, as it has been issued in violation to Balochistan Local Councils (Imposition of Taxes) Rules, 1981. The Notification has not been issued in public interest, as it provides huge benefits to the respondent No,3, who has obtained the contract to collect the Octroi. Petitioners had acquired a vested right, because under the repealed Notification, dated 15th April, 1994 read with subsequent Notification, dated 2nd August, 1995, exemption from payment of tax was allowed to the Textile Owners, for a period of five years, however, subject to payment of only Rs,11 per cotton of bale. The recovery of 5% surcharge from petitioners/customers is being made in contravention to the provisions of section 11 of the Balochistan Finance Act, 1996, as in fact such surcharge is to be recovered from the Contractor, on the contract amount.
12. ' On the other hand, learned Advocate-General, argued that adherence to Balochistan Local Councils (Imposition of Taxes) Rules, 1981, was not necessary, as Government after increasing the rate of octroi from Rs,11 per bale to 1.5% of the cost of cotton bale, has also got increased contract- amount from respondent No,3, to the extent of Rs,1,25,03,366, therefore, according to him, no illegality has been committed by the Government.
13. ' Learned counsel for Town Committee, adopted the arguments advanced by learned Advocate- General, with addition, that petition has not been filed by competent persons of the limited companies as this fact is indicative from the perusal of affidavits, annexed with the petition, which have been signed by the Personal Officer, therefore, he pleaded, for the dismissal of petition, on this ground alone. It may also be noted that learned counsel candidly conceded that before the issuance of impugned Notification, Competent Authorities, did not adhere to the relevant Rules.
14. ' Mr. K.N. Kohli, learned counsel also adopted arguments, put forth, by learned counsel for respondents Nos.1 and 2. He also added that instant petitions are not maintainable, because petitioners have got alternate remedy. He also urged that under section 70 of the Balochistan Local Government Ordinance, 1980, the Government itself is empowered to levy tax, for which, directions can be issued to the concerned Local Council, therefore, the impugned Notification, is a direction to the Town Committee, Hub, for levying octroi at the rate of 1.5% instead of Rs,11 per bale, as such, petitioners cannot express any grievance against the Notification. He also pointed out that the Contractor has not made any gain, as on account of the Notification, he has already enhanced Rs,1,25,03.336 towards the contractual amount of Octroi, therefore, it is not justified to contend the petitioners that for the purpose of extending illegal benefits to the Contractor, the impugned Notification was issued. Learned counsel also pointed out that in this behalf an Addendum to the original Contract Agreement, has also been executed between the parties.
15. ' It would be appropriate to first of all attend to the objection, concerning non-maintainability of petitions, put forth by Mr. Farooq Rashid, Advocate. There is no cavil with the legal position that a suit (petition) on behalf of the Company, would not be competent, unless the person signing the same, has not been authorized by the Resolution passed by the Company's Board of Directors, in their meeting, as held in the judgment cited by learned counsel reported in Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550, but it is also to be borne in mind that such technical objection, ought to have been raised at the initial stage of proceedings, as it has been held in the case of Messrs Dawood Yamaha Ltd. v.
16. Government of Balochistan and 3 others PLD 1986 Quetta 148. In the cited judgment, identical objection was raised at the time of arguments. His Lordships Mr. Justice Ajmal Mian, Actg. C.J. Of this Court, as then he was, while dictating judgment on behalf of Division Bench, held that "we are also inclined to take the view that there is a vast difference between a suit and a Constitutional petition, inasmuch as, the provisions of the Code of Civil Procedure are strictly applicable to a suit, whereas, they are not strictly applicable to Constitutional petitions, though some of the provisions thereof are pressed into service to regulate the conduct of the petitions in the absence of any rule on a particular topic framed by the High Court for regulating the Constitutional petitions. We are also inclined to hold that the Court will be reluctant to non-suit a petitioner on a technical ground, but would prefer to adjudicate upon the dispute on merits". In instant Constitutional petitions, respondent No,2, made appearance through Advocate on 24th November, 1997, 25th November, 1997, 16th December, 1997, 24th December, 1997 and 3rd March, 1998, but no such objection was ever raised. However, the -maintainability of the petition was objected to for the first time, when counter-affidavit was presented on 11th March, 1998, already when case was fixed for 12th March, 1998, on this date, after hearing the arguments, the judgment was reserved. Thus, we are not inclined to entertain the objection, which is accordingly overruled.
17. ' Before coming towards the merits of case, it would be just, if relevant provisions of Balochistan Local Government Ordinance, 1980 are identified with an endeavour to find out the authorities, who are competent to levy taxes, including the octroi. In this behalf section 61 of the Ordinance, can be referred, which deals with the Budgets, which is to be prepared by the Local Council, in a prescribed manner, before commencement of each financial year, giving therein the statement of its estimated receipts and expenditure for the year. When we talk of estimated receipts, naturally it indicates the source of income, which undoubtedly, include recovery of octroi as well. Section 68(1) speaks, about the taxes, which are to be levied by a Local Council, subject to the provisions of any other law made, and if directed by the Government, shall levy all or any of the taxes enumerated in the second schedule, provided that all taxes, rates, toll or fees levies, charged collected or realized, by a Union Council, Town Committee or Tehsil Council, shall be subject to the approval by the District Council concerned and the taxes, rates, fees and tolls levied by District Council, Municipal Corporation or Municipal Committee, shall be subject to the approval by the Divisional Co- ordination Committee concerned. Subsection (2) of this section, confers power upon the Government to give effect to any Notification retrospectively. As for as its subsection (3) is concerned, it is not relevant, therefore, its contents are not being mentioned. Section 69 provides, that all taxes levied by a Local Council, shall be notified and shall unless otherwise directed by the Government, be subject to previous publication, whereas its subsection (2) provides that where tax is levies or modified, the Local Council shall specify the date for the enforcement thereof, and such tax or the modification shall come into force on such date.
18. ' A careful perusal of these sections will suggest that in all these provisions, powers have been conferred upon Local Councils, for levying the taxes and for the purpose of effective enforcement of these provisions. Section 75 read with section 150 of the Ordinance, confers jurisdiction upon the Government to frame Rules, for the purpose of imposing, assessing, compounding, administering and regulating taxes and other charges by a Local Council, in such manner, as may be prescribed.
19. These Rules shall also provide, among other matters, for the obligation of the tax-payers and the duties and powers of the officials and other agencies, responsible for the assessment and collection of taxes. It is to be noted at this juncture that in exercise of such powers the Government of Balochistan, vide Notification, dated 22nd April, 1981, framed the Balochistan Local Councils (Imposition of Taxes) Rules, 1981. These Rules provides a scheme relating to invitation of Taxation Proposals by a Local Council, for the imposition or suspension of tax or an increase or reduction in the rate of tax. These Rules also speaks about publication of Preliminary Taxation Proposals, hearing of objections and suggestions to the Preliminary Taxation Proposals, the method for the consideration of proposals and ultimate issuance of Notification in a meeting of District Council or Divisional Co-ordination Committee, as the case may be and if the Taxation Proposals are approved the same shall be notified in the official Gazette, by the Chairman of Divisional Co- ordination Committee or of the District Council, as the case may be, in the form appended with the Rules and approval by such competent Authority shall come into force on and from such date, as may be specified in the Notification and a copy of the Notification shall be forwarded to the Government. Strict adherence to the above discussed Rules, is called for, when the Taxation Proposals, have been floated by the Local Councils.
20. ' Mr. Akhtar Ali Mehmood, learned counsel, argued that non-compliance of the above Rules, shall render the Notification, illegal, as it has been held in Arsalla Khan v. Bashir Ahmad Balour and 3 others PLD 1976 SC 581, Burshan (Pakistan) Ltd. v. Cantonment Executive Officer, Cantonment Board of Korangi, Karachi PLD 1983 Kar. 517, Syed Ali Hussain Shah v. Town Committee and others 1989 MLD 1982, Rauf Trading Company Limited v. Faisalabad Municipal Corporation through Mayor and another 1990 CLC 1732, Glaxo Laboratories (Pakistan) Ltd. v. Union Council Dulu Khurd through Chairman and 4 others 1991 CLC 354, Raja Muhammad Ramzan and 47 others v. Zila Council Attock and another PLD 1992 Lah. 324, McCarthy and Stone (Developments) Ltd. v. London Borough of Richmond Upon Thames (1991) 3 WLR 941, (House of Lords) reported in 1994 SCMR 1393. Relevant paras from the last cited judgment, are reproduced hereinbelow:-- "My Lords, I come back to section 111(1), the relevant provision. The council admits that it cannot without express authority charge for a 'duty function', but it still has to say that the ability to charge for pre-application advice is based on the 'power to do anything' which is ' incidental' (I deliberately choose the most neutral qualification)' to, the discharge of any (of the councils') functions'. To charge for performing a function (subject always to Wednesbury consideration (Associated Provincial Picture House Ltd. v. Wednesbury Corporation (1948) 1 KB 223, which do not arise here) must always be incidental to the provisions of the service provided. Therefore, the council's interpretation of section 111(1) would allow it to charge for the performance of every function, both obligatory and discretionary, which provided a service (and, even without section 87(1), there would be nothing unreasonable or irrational incharging a proper fee for determining a planning application. Such a construction of the subsection cannot possibly be justified, and I say this before even considering the point that, in the absence of express statutory authority, the power to charge can only be implied, in the words of Atkin, L.J. In Attorney-General v. Wilts United Diaries Ltd. 27 TLR 884, 886, ' as necessarily arising from the words of Statute.
21. ' There is yet a further point, to which, I have already adverted. As the Court of appeals have said (1990) 2 WLR 1294, 1302-1303, the power to give pre-application advice is neither a duty nor a discretionary express power, but is a subsidiary power arising by virtue of section 111(1) (which is codified the common law), because it is calculated to facilitate or is conducive or incidental to, the discharge of one of the council's functions. To charge for the exercise of that power is, at best, incidental to the incidental and not incidental to the discharge of the functions."
22. There is consensus of opinion in the cited judgments, as well as it is well-known principle of law that before imposing tax upon a payer, he must be given adequate opportunity, so that he may support or oppose the Taxation Proposal. Therefore, whatever is suggested or proposed, that is required to be considered, under the relevant Rules by the competent Body, but in the instant case, we would accept this principle, provided we succeed in persuading ourselves, that the tax vide Notification under consideration, was imposed by the Union Council. Admittedly no document has been placed on record, either by the Advocate-General or Mr. Farooq Rashid, Advocate, to suggest that the impugned Notification was issued by the Town Committee, Hub, wherein the rate of octroi on cotton was increased. Inasmuch as, the Advocate of respondent No,2, candidly conceded that before issuance of Notification, various provisions of the Rules of 1981, were not adhered to.
23. Therefore, we feel no hesitation in holding that this Notification was not issued by the Town Committee, Hub, as such, adherence to the relevant Rules to the extent, whatever, has been discussed above, was not mandatory.
24. ' Now the next limb of our effort commence, to find out that if the tax rate vide impugned Notification was not modified by the Town Committee, then how the Government was empowered to issue this Notification. To attend this question, we will make reference to subsection (1) of section 70 of the Ordinance of 1980, which confers power upon the Government to direct a Local Council to levy any tax, to increase or reduce any such tax or the assessment thereof, to such extent, as may be specified or to remit, suspend or abolish the levy of such tax, to recover a tax from any date, even with retrospective effect. Its subsection (2) lays down that if directions under subsection (1) are not complied with, within the specified time, if any, Government may make an order giving effect to the directions. This provision is to be read alongwith Rule 8 of the Balochistan Local Council (Imposition of Taxes) Rules, 1981, according to which, where any direction is issued by the Government under section 70 of the Ordinance, the Council shall convene a special meeting to implement the direction and report compliance to the Government. It is worth to mention here that respondent No,2, alongwith counter-affidavit, had annexed a letter, dated 13th October, 1997, addressed by the Administrator, Town Committee, Hub, to respondent No,1, the Secretary Local Government, with reference to latter's letter, dated llth October, 1997, under subjection "Octroi Contract, Hub for the year, 1997". Para. 2 of this letter is reproduced hereinbelow:-- "There are (6) six textile industries in Hub Industrial Area which are fully functional at present. These six units collectively import about 105000 bales of raw cotton of different kind from various parts of the country, every year. The import value of these 105000 bales of cotton at an average price of Rs,10,000 per bale approximately comes to Rs,1,050 million. These units are presently paying Rs,11,55,000 per year only at fixed rate of Rs,11 per bale. If the import of raw cotton is charged with octroi at the rate of 1.50% on its value, the Town Committee, Hub will receive Rs,15.75 million per year as octroi, only from import of raw cotton. It means that we will be able to generate an additional income of Rs,14.595 million per year from Textile Industries of Hub, if the subject exemption given to them is withdrawn. A detailed statement to this regard is enclosed as Annexure ' A' ."
25. ' A careful consideration of the above reproduced para, suggest that before withdrawal of the exemption of octroi on cotton bales, the respondent No,1, conducted probe; to ascertain that if the exemption is withdrawn, how much extra amount will be earned by the Town Committee and on receipt of comments, issued the Notification under consideration, because, as for as, convening of meeting in terms of Rule 8 of the Balochistan Local Councils (Imposition of Taxes) Rules, 1981, is concerned. That was not possible, because in the Province of Balochistan, the Local Councils, have been dissolved for the last more than one year. The Administrator, who was acting on behalf of the council, gave reply to the letter, referred to hereinabove. Thus, there is no fear in holding that Notification under consideration was issued by the Government, in exercise of powers under section 70(2) of the Balochistan Local Government Ordinance, 1980 read with Rule 8 of the Balochistan Local Councils (Imposition of Taxes) Rules, 1981. At this juncture, it is equally important to take note of the fact that after increase in the rate of octroi on cotton bales, the respondent No,3, also increased/enhanced the bid of his contract for collection of octroi, to the tune of Rs,1,25,03,366 and in this behalf an agreement was also executed between the respondent No,1 and the Contractor (respondent No,3) on 24th November, 1997. It is also to be borne in mind that once the order has been passed by a Functionary, in exercise of powers, conferred upon it by a particular C provision of law, the Courts are required to explore all possibilities, to save such acts, deeds, orders etc. Instead of destroying them, for the technical reasons.
26. ' We are mindful of the fact that prior to the issuance of Notification under consideration, Textile Owners, were paying only Rs,11 per bale vide Notification, dated 19th April, 1995 and in pursuance of this very Notification, another Notification, dated 2nd August, 1995, was got issued by them, wherein they obtained order from respondent No,1, that the octroi will be charged on cotton, at the rate of Rs,11 per bale, instead of 1% of the value of goods and such exemption will be applicable for a period of five years. Although this Notification now has been repealed and is not under challenge, but still on its perusal, one can infer that in order to provide a highly illegal benefit to the consumers, exemption from octroi was allowed for a period of five years, whereas comparing to that situation, now the respondent No,1, in exercise of powers under section 70(2) of the Balochistan Local Government Ordinance, 1980 read with Rule 8 of the Balochistan Local Councils (Imposition of Taxes) Rules, 1981, Notification, dated 1 1 th November, 1997, has been issued, whereby the rate of octroi on cotton bales has been increased to 1/5% of the cost, instead of Rs,11 per cotton bale and due to this exercise, respondent No,2 (Town Committee, Hub) had increased its income, under the Head of Recovery of Octroi, to the tune of Rs,1,25,03,366, which of course would be spent in public interest, as it has been mentioned by the Administrator, in his letter, relevant para. Wherefrom has been reproduced hereinabove. Thus, under these circumstances, indeed, even if a case is made out, for the issuance of writ, such relief can be withheld in the larger interest of public, for whose benefit, respondent No,2, is functioning. In this behalf if any Authority is needed, reference can be made to Federation of Pakistan v. Haji M. Saifullah Khan PLD 1989 SC 166.
27. As for as the objection of petitioners; namely, that they have acquired a vested right, because they entered into contracts for export of cotton yarns, with the foreigners, at the market rate, believing that the cost of production will be low, as exemption on the octroi has been granted and by issuing the impugned Notification they have been deprived of their rights, is concerned, we are not inclined to agree with the petitioners because firstly the Notification has been issued by the respondent No,1, in exercise of its powers under section 70(2) of Balochistan Local Government Ordinance, 1980 read with Rule 8 of the Balochistan Local Councils (Imposition of Taxes) Rules, 1981, and against exercise of such statutory powers, no estoppal can be pleaded, as it has been held in Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another PLD 1995 SC 66.
28. Secondly the respondent No,1, had lawful jurisdiction, to withdraw the earlier Notification, in pursuance whereof, exemption was given to the Textile Owners, in respect of non-payment of octroi on cotton bales. In forming this view, we are supported by the judgments reported in The Province of East Pakistan v. Al-Haj Moulvi Muhammad Yaseen Qureshi and another PLD 1964 SC 438 and Abdur Rashid v. Central Board of Revenue and others PLD 1965 (W.P.) Pesh.
29. 249.
30. ' Mr. Farooq Rashid, learned counsel, stated that all the petitioners have opened L.Cs. After the promulgation of impugned Notification, therefore, it is definite that they have concluded their contracts, in accordance with the total exemption which they were likely to incur, on the production of cotton yarns, including the charters of octroi.
31. ' We see sufficient force in the argument of learned counsel because alongwith Constitutional Petition No,467 of 1997, copies of six contracts, dated 18th November, 1997, have been annexed, whereas the Notification was issued on 11th November, 1997. Even if we presume that the contracts were entered into by the petitioners before the issuance of Notification under consideration, still against a legal provision, Doctrine of Promissory Estoppal cannot be enforced, as it has been held in Such Power Plan PLD 1998 Quetta P.21.
32. ' Adverting to the second limb of relief, claimed by petitioners in respect of recovery of surcharge, at the rate of 5% from petitioners, it requires no deep consideration, because on reading section 11(1) of the Balochistan Finance Act, 1996, in its plain and ordinary meaning there is no difficulty in understanding that the surcharge is to be recovered at the rate of 5% of the contract amount, which is to be paid by all the octroi contractors of the Local Councils, in Balochistan. This provision of law does not envisage that the amount of surcharge will be recovered by the Octroi Contractor from the consumers and then he will pay the same to the Government. As for as its subsection (2) is concerned, it further clarifies that the tax shall be paid by the Contractor, in the manner to be prescribed by the Government. On reading both the provisions in confection to each other, no other construction can be placed, upon them, except that the surcharge is to be paid by the Contractor, therefore, respondent No,1, had no lawful authority to issue such directions to the Administrators, vide letter, dated 8th September, 1997, to ensure that this amount is collected from the tax-payers and then is to be remitted to the Local Government Department, every month. The letter has been issued without legal sanction, as such, it is declared, as of no legal consequences.
33. Resultantly it is held that petitioners cannot be called upon to pay 5% surcharge.
34. Thus, for the foregoing reasons, instant Constitution petitions, are I partially allowed, declaring that the Notification, dated 11th November, 1997, has been issued by the respondent No,1, with lawful authority and jurisdiction. As for as demand of respondent No,1, for the recovery of 5% surcharge from petitioners, vide letter of the Government of Balochistan, dated 8th September, 1997, is concerned, it has been issued without lawful authority and jurisdiction, as well as in violation to section 11(1) of the Balochistan Finance Act, 1996, thus, is of no legal effect.
35. ' In the circumstances, parties are left to bear their own costs.