' This petition, under Article 199 of the Constitution of Pakistan (1973) by Haji Talib Hussain and 42 others, seeks to assail the validity of Item No,1 in Notification No,182/MCL, dated 9-5-1996. Vide aforesaid challenged Notification, the petitioners, as goldsmiths. Were made liable to charge in the sum of Rs,500 each as licence fee.
2. It is contended that the Administrator Municipal Committee, Lala Musa had not followed the conditionality's embodied in Rule 9 of Punjab Local Council (Taxation) Rules, 1980 (hereinafter referred to as 'Taxation Rules'); that after the sanction of the taxation proposals, these were not published in the official Gazette. Reliance was placed on the rule laid down in Rauf Trading Co. Ltd. v. F.M. Corporation (1990 CLC 1732) and Glaxo Laboratories (Pak.) Ltd. v. Union Council (1991 CLC 354) and K.M.C., Karachi v. M/s. S.N.H. Industries (1997 SCM R 1228).
3. The learned counsel, for the Municipal Committee, however, supported the impugned notification on two grounds firstly, that the aforesaid notification was subject to incident of appeal and revision under Rules 15 and 16 of Taxation Rules and so the petitioners had no' right to file this petition without availing of the statutory remedies available to them. Secondly, that the Municipal Committee had sent a public information notice to the Director Public Relations, Punjab on 27-3- 1996; that it had paid Rs,5,000 as advance publication fee; that public information notice was displayed on the notice board on the same date and was published in daily 'Khabrain'. On the basis of above facts, it was submitted that the petitioners had full knowledge of the levy and had been paying the impugned tax without any protest or demur. They, therefore, according to the learned counsel were precluded to raise these questions in this petition. The learned Law Officer, who appeared on behalf of the A.-G. On Court's call, also supported the line of reasonings advanced by the learned counsel for the Municipal Committee. Reference was made to Muhammad Siddique v.
Market Committee, Tandilanwala (1983 SCM R 785) and Market Committee, Khudian v. Town Committee, Khudian (1992 SCM R 1403).
4. I have heard the learned counsel for parties, perused the record and attended to their rival contentions with care. It is common ground between the parties that assailed notification was signed/issued by the Administrator on 9-5-1996 but was published in official Gazette on 10-3-1997.
The question, which arises for consideration, is as to whether Municipal Committee was entitled to recover professional tax from the petitioners for the period in-between 9-5-1996 to 10-3-1997.
Admittedly, the questioned notification, sent by Administrator, Municipal Committee had not been published in official Gazette in that period. As regards, the power of Administrator, Municipal Committee to levy the impugned tax, it is undisputed that he had such authority under section 137 read with section 138 of Punjab Local Government Ordinance, 1979. It is also not in quarrel that impugned tax had to be levied within the terms and mechanism prescribed by Taxation Rules, 1980. A study of the pertinent Rules is essential. Rules No's three (3) to nine (9) in-built mechanism for levying he taxes/charges/duties. Rule 3 is first in this scheme. It enacts that Chairman, Local Council, while framing annual budget or revised budget, shall take stock of its financial position and will draw taxation proposals if he comes to conclusion that its financial position is such that taxation structure is to be modified. He is required to incorporate his proposals separately in the appendix to budget. Sub-rule 3 (ibid) requires that his proposals shall be put in black and white in form of Draft Taxation Notification/with clear indication of class of persons or categories of property proposed to be taxed and the rate at which the tax/duty/charge is to be levied. Rule 4 guarantees the right of taxpayers to be heard. It enables the inhabitants/taxpayers to file their objections/ suggestions to draft taxation notification. Under these rules, Chairman is to issue public notice with regard to his taxation proposal/asking the affectees to file their objections/proposals/suggestions within a period of 30 days from the publication of draft taxation notification. Rule 5 mandates that all objections and suggestions, so received, shall be entered into a register and the concerned Chairman shall appoint a sub-committee to hear such objections or suggestions. The Committee, so constituted, thereafter, shall hear the taxpayers and submit a report to Chairman/now Administrator. Of course, the Chairman/Administrator has power to accept the findings/proposals of Committee and modify its findings or he may reject the finding of the Committee with note of his disagreement. As a result of the above exercise, the Chairman shall submit the taxation proposals to the Local Council which might accept the taxation proposals or reject them with a majority vote. The moment, these proposals are passed, they are matured into what is described as sanctioned taxes and are recoverable from taxpayers subject to its publication in official Gazette. Rule 9 enumerates the acts to be performed by the Chairman after passing of taxation proposals by the Local Council. It says that the moment taxation proposals are sanctioned, the Chairman shall send the copy of tax notification for publication in official Gazette and endorse a copy thereof to Deputy Commissioner and Commissioner concerned and Government. Part (B) of this rule mandates the Chairman to publish this notification in form of the public notice. Then comes subsection (2) of section 9. It says that taxation proposals sanctioned by Local Council shall come into force on and from such date as may be specified in the notification.
Here comes the anomaly. The difficulty arises when there is delay in publication of notification in official Gazette and date of its signing by Administrator, obviously, in this eventuality, date of commencement given (if specified) in notification is at variance with the date of its publication. It is true that in Siddique's case (supra) (1983 SCM R 785) it was held that condition of previous publication in official Gazette was confined to bye-laws only and not to Rules or any notification issued thereunder. The same question appeared before Supreme Court in M.C.K., Karachi v. M/s. SNH Industries (Pvt.) Ltd. 1997 SCM R 1228). In this case M/s. S.N.H. Industries (Pvt.) Ltd. Was importer of parts and components of Televisions in completely knocked down condition for business of assembling and manufacturing T.V. Sets. Vide a notification, dated 11-7-1982, parts and components in T.V. Sets, so imported, were assessed at .75% of value under Serial No,85 of Octroi Schedule published in the Gazette of Sindh Government. Vide a notification published in Government Gazette on 17-9-1992, Municipal Corporation, Karachi/Metropolitan Corporation, Karachi increased duty under Serial No,85 from .75% to 1.15% and duty under Serial No,92 was increased from 3% to 4.50% ad valorem. This notification was issued on 5th August, 1992 on 10-5- 1993. The Municipal Commissioner issued a notification bearing No,550/GEN/OC. In the said notification, after Serial No,85, a new Serial No,85(a) was added with the description/name of articles in Octroi Schedule 'A' as "TV, VCR, Cassettes, and parts thereof" and the octroi rate was shown as 4.5% ad valorem. This notification was not published in the Gazette and was purported to have been issued under the directions of Government of Sindh communicated to the petitioner under letter, dated 31-3-1993. The dispute arose between the parties was with regard to period between 10-5-1993 (when the notification was issued) and 4-11-1993 (when the Notification was gazetted). The petitioner filed a writ petition which was dismissed by the High Court in following terms:--- "It may, however, be pointed out that since admittedly the notification was published to the official Gazette on 4-11-1993, it could not take effect prior to its publication. As has been provided by section 2(4) of the West Pakistan Clauses Act 'Notification' shall mean a notification published under proper authority in the official Gazette. Therefore, if such tax has been charged from the petitioners before the publication of the notification in the official Gazette, the same would be liable to be refunded to them. However, after publication of the said notification in the official Gazette, the respondents would be within their right to charge octroi tax according to the amended schedule."
' Feeling aggrieved, K.M.C., Karachi filed Civil Petition for Leave to Appeal No,280-K of 1995 which was dismissed in limine on 30-11-1996. Dealing with the above question his Lordship Mr. Justice Saleem Akhtar, the Hon'ble Judge of Supreme Court (as he then was)
"The terms 'notification' and 'notified' convey completely different meaning. The 'notification', as discussed above is issued by publication under a proper authority in the official Gazette. While the term 'notify' means to give notice, proclaim or publish in any recognized manner. Ballentine's Law Dictionary defines it as: "Notified: Having been given notice. In legal proceedings and in respect to public matters, the word is generally if not universally used as importing a notice given by some person whose duty it was to give it, in some manner prescribed, and to some person entitled to receive it.
' According to the Shorter Oxford English Dictionary, 'notify' means:- 'to take note of, observe, to make, publish, proclaim; to announce, to indicate, denote, to give notice to; to inform.'
' From the literal meaning of the term 'notify' and the meaning as understood in legal proceedings and public matters, it means to convey information in a manner which ensures that the person sought to be notified shall receive it. The method of conveyance of information, order or notice may be by post, publication, public proclamation or announcement, direct service on the address effected personally on him by the person issuing it or his authorised representative, or any other recognized or customary mode of service. In view of this discussion, the judgment relied upon is completely distinguishable.
' The learned Judge went on to distinguish the rule laid down in Muhammad Siddique v. The Market Committee, Tandlianwala (1983 SCM R 785): "In this judgment, the notification challenged related to an amendment in the rules which was to be notified and not required to be published in an official Gazette. This judgment, _therefore, does not advance the case of the petitioner."
' The learned Judge went to say: "Learned counsel for the petitioner has produced a copy of the notification published in the Government of Sindh Gazette, dated 17-9-1992 which was sought to be amended by the direction of the Chief Executive which though notified was not gazetted. It, therefore, seems clear that all directions/orders/decisions made by Chief Executive are published in official Gazette. The publication is made in order to notify the public about the octroi rate and to provide an authentic document for their use. If the rate fixed has been notified in the official Gazette, will it be proper that any amendment made therein should not be notified in the same manner by publication in the official Gazette and should be done by issuing notice or pasting it on the notice board. Such procedure cannot, unless specifically provided by a statute, be adopted by amending a notification which had been published in the official Gazette."
5. From the foregoing, it is, thus, clear that publication of a sanctioned tax notification proposals in the official Gazette is a condition precedent for its enforcement. The process initiated under Rule 3 of Taxation Rule, 1980 so finally matures by means of a publication in notification in official Gazette under rule ibid. Applying the above rule to the facts and circumstances of the case in hand, it is quite clear that tax proposals were sanctioned on 1-7-1996; that the notification was sent to concerned Department for publication in official Gazette on the same day, yet these were published in official Gazette on 10-3-1997. This being the position, the Committee was not entitled to recover impugned professional tax from the petitioners from 1-7-1996 to 10-3-1997. The petitioners are, so, entitled to refund all the professional taxes if so paid by them .During the period.
As regards the invalidity of remaining notification, it is sufficient to say that the Taxation proposals were sanctioned on 1-7-1996 and that notification had been published in official Gazette on 10-3- 1997. There is no cavil with the authority of the Administrator to levy the impugned taxes. This being the position no exception can be taken to invalidity of the notification except what has been paid above. I have, therefore, no hesitation in saying that no objection can be taken to the questioned notification except what has been held above. As regards, the question of alternative relief, it is sufficient to reiterate that this Court can come to the rescue of the affected party if the impugned order/notification action is without jurisdiction or in excess of jurisdiction or in violation of expressed provision. As a result of the above discussion, this petition partly succeeds in the above terms. The recovery of the impugned tax from petitioners for period in-between 1-7-1996 to 10-3-1997 is declared to be without lawful authority and petitioners are held entitled to its refund if it has been deposited. There shall be no order as to costs.
6. While parting with this case, it is to be observed that this case was heard in preliminary hearing at length and the arguments were heard in detail from both sides. So, this case was decided with the consent of the parties as Pacca case.