1. ' IFTIKHAR MUHAMMAD CHAUDHARY, C.J.---By this order we intend to dispose of C.P. Nos.434 of 1998, 448 of 1998 and 474 of 1998 as identical questions for consideration are involved in all of them.
2. Precisely stating facts relevant for disposal of instant petition are that the Board of Investment Pakistan introduced incentives for the newly created special industrial zones to attract investment for industrial activities and to promote balanced development through setting up 12 special industrial zones in different parts of Pakistan and offered good number of concessions including exemption in payment of customs duties and sales tax on plant machinery and material etc. Out of these incentives one of the facility was "exemption of octroi and export taxes of Local Government for ten years". In pursuance of the scheme the Government of Pakistan set up a special industrial zone 'SIZ' at Winder and Quetta. Petitioner M/s. Sadiq Sons Tin Plates Limited taking the advantage of incentives introduced by Board of Revenue started construction of factory for production of Tin Plates on Plot No,5 at Winder Industrial Zone. After completing formalities the petitioner commenced the construction of factory and approached to the Government of Pakistan Board of Investment for facility of exemption on payment of octroi from the Government of Balochistan Local Government. Perhaps initially this facility was not extended, therefore, a Constitutional Petition No,263 of 1998 was filed before this Court claiming the relief amongst others that declaration be made that Government of Balochistan, Rural Development and Agrovilles Department is under legal obligation to grant exemption from payment of octroi/export tax as contemplated in Special Industrial Zone scheme. This petition was dismissed as withdrawn as petitioner wanted to approach the Federal as well as Provincial Government by way of filing representations for granting exemption on octroi duty and export tax instead of seeking relief by way of filing Constitutional petition. It appears that petitioners thereafter, approached to Government of Balochsitan and got issued notification No,50259/97 (BLGB)AO-IV, dated Quetta the 12th November, 1998. For the sake of convenience the notification is reproduced hereinbelow:-- "In exercise of powers conferred by section 70 of the Balochistan Local Government Ordinance, 1980 (II of 1980) read with rule 136 of the West Pakistan Municipal Committee Octroi Rules, 1964, the Government of Balochistan is pleased to exempt plants, Machinery and raw material of Siddiq Sons Tin Plates Industries Limited to be set up in SIZ Winder Balochistan Province from the payment of octroi duty and Zila Tax for a period of ten years with effect from the date of opening of letter of credit."
3. In pursuance of above notification exemption from payment of octroi duty and Zilla tax was allowed to petitioner for a period of 10 years. It so happened that despite of issuance of above notification Town Committee Winder through its Administrator and the Octroi Contractor respondents Nos.2 and 3 insisted upon petitioner for making payment of octroi, therefore, C.P.
4. No,434 of 1998 was filed seeking directions to respondents Nos.2 and 3 not to demand octroi from it as it has been exempted by the Government of Balochistan. The petition was admitted to regular hearing on 17-11-1998 and on Civil Miscellaneous Application No,1827 of 1998 interim order allowing the petitioner to import material to SIZ Winder was allowed without payment of octroi in view of exemption notification subject to furnishing undertaking alongwith details of bills of entry for the purpose of payment of octroi with the Additional Registrar of this Court.
5. ' After the admission of this petition Contractor for collection octroi M/s Sheikh Traders instituted a Constitutional Petition No,448 of 1998 challenging the notification, dated 12-11-1998 (reproduced hereinabove). This petition was also admitted on 2-12-1998 and was ordered to be fixed alongwith C.P. No,434 of 1998. At this stage it is important to note that before admission of this petition Government of Balochistan, Rural Development and Agrovilles Department vide notification, dated 1-12-1998, withdrew earlier notification, dated 12-11-1998 as per orders of Chief Minister Balochsitan.
6. In view' of above development Petitioners M/s Sadiq Sons instituted C.P. No,474 of 1998 claiming following relief:-- "It is accordingly respectfully prayed that it may be declared:--
(i) That the Notification No,5-259/97 (BLGB)AO-IV, dated 1st December, 1998 is illegally, mala fide, politically motivated, arbitrary, and issued in colorable exercise of authority, as such of no legal effect;
(ii) That the respondent No,1 is under obligation to exempt the petitioner from the payment of octroi/zilla tax as contemplated under Special Industrial Zone Scheme, therefore, the Government of Balochistan be directed to restore Notification No,5-259/97 (BLGB)AO-IV, dated 12-11-1998;
(iii) That the respondents Nos.3 and 4 may be directed not to charge any octroi from the petitioner and they may be directed to allow the petitioner to transport the consignments;
(iv) That pending disposal of the petition the respondents may be restrained from demanding, charging or assessing goods of the petitioner for octroi and the petitioners may be allowed to import the same to their factory premises;
(v) And other relief as may be deemed fit and appropriate in the circumstances of the case may also be granted alongwith costs of the petition."
7. ' Mr. H. Shakil Ahmed, Advocate appeared in C.Ps. Nos.434 and 474 of 1998 filed by M/s Sadiq & Sons Tin Plates Limited; whereas Mr. K.N. Kohli, Advocate appeared in C.P. No,448 of 1998. Malik Sikanadar Khan learned Advocate-General represented to Local Government of Balochistan of Balochistan Rural Development and Agrovilles Departments in all the petitions; whereas Mr. M. Salahuddin, Advocate appeared for the Twon Committee Winder.
8. Learned counsel contended that under the Government of Balochsitan (Rules of Business) the Chief Minister is not competent to withdraw the notification, dated 12th November, 1998 issued by the concerned Department by observing procedure laid down under section 70 read with section 139 (5) of the Balochistan Local Government Ordinance, 1980 (hereinafter referred to as the Ordinance, 1980), therefore, the action of Chief Minister in issuing notification, dated 1-12-1998 is contrary to Rules of Business of the Government of Balochistan. Thus, on declaring so earlier notification, dated 12-11-1998 may be restored. On merits he contended that under section 70 of the Ordinance, 1980 in absence of functional local councils, Provincial Government is empowered to direct the Local Council to remit, suspend or abolish the levy of any such tax. According to him the word "remit" is interchangeable with the word "exempt", therefore, notification, dated 12-11-1998 was issued lawfully and it has been withdrawn by the Local Government Department under direction of the Chief Minister under misconception.
9. ' Mr. K.N. Kohli learned counsel for M/s. Sheikh Traders Contractors to collect octroi argued that under Rules, 38, and 39(5) of Government of Balochistan (Rules of Business) Chief Minister remains over all incharge of the affairs of the Government, therefore, he can withdraw at any moment the notification or order even if passed by the concurrence department with concurrence of the concerned Minister, therefore, the notification, dated 1-12-1998 has been rightly issued by the Local Government Department as per directions of the Chief Minister Government of Balochistan. He further argued that under section 70 of the Ordinance, 1980 the Provincial Government independently has no authority to remit or abolish the levy of a tax, but it can only issue directions to the Local Council and such direction have to be issued judiciously.
10. ' Mr. M. Salahuddin Mengal learned council adopted the arguments put forth by Mr. K.N. Kohli, Advocate.
11. Malik Sikandar Khan learned Advocate-General controverted to the stand taken by learned counsel for M/s Sadiq & Sons Tin Plates Limited that Chief Minister is not empowered to rescind or withdraw any order/notification issued by the concerned department as according to him the Chief Minister remains the overall incharge of the Governmental affairs for the Department, therefore, in the instant case notification, dated 1-12-1998 has been issued with lawful authority and jurisdiction by the Secretary Local Government Department. However, he did not agree with Mr. K.N.
12. Kohli, Advocate for the Contractor to collect octroi that no exemption can be allowed by the Government in recovering the tax. As per his contention section 70 of the Ordinance, 1980 fully empowers to Government to remit, abolish, levy any kind of tax, therefore, according to him in this behalf powers of the Government cannot be restricted.
13. ' We have heard the parties' counsel at length and have also carefully examined relevant provisions of law. In our opinion in given circumstances of the case the foremost question for examination is whether notification, dated 1-12-1998 impugned in C.P. No,474 of 1998 has validly been issued by the Secretary Local Government Department in terms of Order of the Chief Minister.
14. The affairs of the Federal and Provincial Governments are regularised firstly by the Constitution and then the laws promulgated from time to time. In democratic system of Government to provide fullest partictpation to all components of the Balochistan Government (Rules of Business) are framed under the Constitution. With reference to the affairs of the Provincial Government Article 139 of the Constitution of Islamic Republic of Pakistan are relevant. In persuance of this Article, in 1976 the Rules of Business for the Government of Balochistan were framed. In these rules, Rule 5 and 39 are relevant. As far as former is concerned it deals with general procedure for disposal of business; whereas the later provides schedule of the cases which are to be submitted for approval of the Chief Minister mentioned in Schedule-VIII Part-A. As per sub-rule (3) of Rule 39 the Chief Minister is competent to seek reference as may be specified generally or called for specially by the Chief Minister and such cases shall be submitted to him for approval or information as directed by him.
15. This provision confers vast jurisdiction upon the Chief Minister to give approval in respect of any matter which even if is not covered by Scheudle-VIII Part-A. This provision if is read alongwith Rule 38(1) it would be abundantly clear that Chief Minister remains over all incharge of all departments of the Government because according to this rule the Chief Minster is empowered to allocate to a Minister one or more departments or part of a department, but the Chief Minister shall have power to pass order in any case concerning any department without consulting the Minister of that department. Thus, considering both the provisions with reference to each other it can conveniently be said that being the Head of Provincial Government the Chief Minister may not wait that any case is submitted to him or reference of the same is made to him, but he can at his own call upon any case from any department and may pass order even without consulting the Minister of that department.
16. ' Mr. K.N. Kohli learned counsel contended that Rule 38 of the Balochistan Government (Rules of Business) 1976 is corresponding to Rule-A (A-1) of the Sindh Government (Rules of Business) which also provides that the Chief Minister may allocate to a Minister one or more departments or part of a department, but the Chief Minister shall have power to pass orders in any case concerning any department without consulting the Minister of that department. Learned counsel in this context cited judgment in the case of "Aftab Ali v. The State and 2 others" (PLD 1978 Kar. 807). Facts of the reported case are that Mr. Katpar who was then Acting Chief Minister of Sindh, visited the open Jail Badeen alongwith Inspector-General Prisons and released the few prisoners from Jail specifically directing release of one prisoner namely Bashir who was found to be totally blind. In addition to specifically mentioning the release of few prisoners the Acting Chief Minister also made observation that those who complete 14 years including remissions granted to them today, shall also have likewise benefit, therefore, in pursuance of good number of prisoners werc released from the custody. Copy of the order of Acting Chief Minister was forwarded by the Inspector-General Prisons to the Government of Sindh which took the position that the said order was apparently forged as the Acting Chief Minister had denied passing such order and further even if the orders of release had been passed by the Acting Chief Minister, they could not be implemented without approval of the Governor and authentication of the orders by Officers of the Home Department.
17. Accordingly Government got registered cases under section 202/109, P.P.C. And section 5 of the Prevention of Corruption Act, 1947 against the Inspector-General Prisons and then Superintendent and Deputy Superintendent of the open Jail Badeen and ordered re-arrest of the prisoners who had been released. Thus, the prisoners who were released were rearrested and one of them namely, Aftab Ali challenged the order of the Government before the High Court. Honourable Division Bench of Sindh High Court examined the powers of the Chief Minister under Rule 6(1) of the Sindh Government (Rules of Business) and held that even if there was another Minister Incharge of Prisons the Chief Minister was competent to pass order for the release of prisoners. Consequently the petitions were allowed and petitioners were directed to set at liberty unless they are required in any other cage. It may be noted that this judgment was assailed by the Government of Sindh before Honourable Supreme Court but appeals so filed were rejected vide judgment reported in 1979 SCMR 17, holding that the order for the release of respondents passed by Mr. Katpar as Acting Chief Minister Sindh under section 401, Cr.P.C. Was unexceptionable and its recall by the petitioner Government wholly not tenable Both the judgments are fully applicable in the instant case as well.
18. ' Mr. H. Shakil Ahmed learned counsel for the petitioner also cited judgment in the case of M/s New National Mining Corporation v. Government of Balochistan and 2 others (PLD 1977 Quetta 15) and argued that the Chief Minister is not empowered to directly issue the stay or cancel a prospecting licence under the Balochistan Mining Concession Rules, 1970, therefore, similarly he cannot pass order cancelling notification, dated 12-11-1998 in pursuance whereof exemption to pay octroi was allowed to petitioner. We afraid this judgment is not applicable becuase admittedly under the Balochistan Mining Concession Rules, 1970 the Chief Minister does not figure any where. Moreover in the reported case his powers were not examined under Rule. 38(1), read with Rules. 39(3) of Balochistan Government (Rules of Business). He also relied on the case of Gul Naras Khan v..The Governor N.-W.F.P. (PLD 1981 Pesh. 87). In this judgment a Division Bench examined whether the Governor of the Province is the controlling authority of the West Pakistan (Board of Intermediate & Secondary Education Peshawar) Ordinance IX of 1961 and held that the Governor of the Province is the Controlling Authority and has over all superintendence in respect of the Board. The Board shall be considered to be subject to the control of the provincial Government and it was held that the Governor by himself under the Constitution cannot perform any functions of the Province though the Executive Authority of the Province has to be exercised in his name, the person exercising the Executive Authority 'or the Chief Minister and Provincial Minister who act through him. It was further held that appointment of the Governor of the Province as "Controlling Authority" under Ordinance 19 of 1961 is not in his capacity as the Executive Head of the Province, but he acts as persona designata having no connection whatsoever with the Provincial Government. In our opinion this judgment for the reasons noted hereinbefore is also not helpful to the learned counsel.
19. ' Mr. H. Shakil Ahmed, Advocate, also referred to another case law reported in PLD 1991 Quetta 63, "Inyataullah and others v. Principal Balochistan Agricultrual College and others". In this citation petition challenged orders passed by Principal Balochistan Agricultural College cancelling their admissions which were granted to them on the applications directly submitted to the Chief Minister Balochistan and other Ministers who without referring their matters to the Selection Committee ordered the respondents, to admit them in the college. However, subsequently on the pointation of the Principal that admissions so granted are against the established procedure, were cancelled and in this context in the judgment in which one of us was party (Mr. Justice Iftikhar Muhammad Chaudhary) held that the Chief Minister or a Minister is not empowered to grant admissions to the candidates ignoring prospectus and by passing the Selection Committee which was only competent authority to select a candidate for admission.
20. ' It may be noted that in the professional educational institutions the prospectus having status of statutory documents regulates the admissions of students in pursuance of a procedure laid down therein, therefore, such procedure ought to have been followed and by passing the same, no admission can be allowed. As far as the proposition discussed in the judgment is concerned there is no cavil with it, but with reference to the question involved in the case in hand this judgment as well has not advanced to the case of M/s Sadiq & Sons Tin Plates Limited.
21. As it has been observed, in the instant case, the question concerning the powers of the Chief Minister under Balochistan Government (Rules of Business), 1976 is being dealt with. Thus, on having considered carefully the provisions of Rule 38 (1) and Rule 39(3) of the Balochistan Government (Rules of Business), 1976 in the light of judgment reported in PLD 1978 Kar. 807 and 1979 SCMR 17, we are inclined to hold that Notification No,50259/97 (BLGB) AO-IV, dated 1-12-1998 has been issued with lawful authority in pursuance whereof earlier Notification No,50259/97 (BLGB)AO-IV-18317-37, dated 12-11-1998 was withdrawn.
22. ' Mr. H. Shakil Ahmed learned counsel argued that even if this Court comes to the conclusion that notification, dated 1-12-1998 was issued with lawful authority still this Court in exercise of Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is competent to examine whether petitioner M/s Sadiq & Sons Tin Plates Limited, who have established the industry in special industrial Zone at Winder District Lasbela established by Government of Pakistan, Board of Investment is entitled for exemption from payment of octroi and Government of Balochistan be directed to issue fresh notification in this behalf under section 70 of the Balochistan Local Government Ordinance, 1980.
23. ' Mr. K.N. Kohli learned counsel for contractor to collect octroi opposed the request and stated that such like relief claimed by the petitioner in C.P. No,263 of 1998 was denied to him vide order, dated 16-9-1998, therefore, in view of the earlier findings of this Court relief so claimed by the petitioner cannot be granted.
24. ' Malik Sikandar Khan learned Advocate-General Balochistan also endorsed to the contention of respondent's counsel. It may be noted that in the C.P. No,263 of 1998 petitioner had sought relief to the effect that Government of Balochistan Local Government, Rural Development & Agrovilles Department is under legal obligation to grant exemption to the petitioner from payment of octroi/export tax as contemplated in special industrial zones scheme. This petition was dismissed by taking following observations:-- "We enquired from learned counsel Mr. H. Shakil Ahmed as to whether in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, this Court is empowered to writ against the Government of Balochistan directing to exempt levy of octroi tax on the goods of petitioner in the area of Town Committee Winder. Learned counsel stated that the petitioners installed industries in special industrial zone Winder in pursuance of incentives scheme offered by the Government of Pakistan, Board of Investment Islamabad wherein besides exempting taxes and customs duties etc., the exemption of octroi and export taxes of Local Government Department for ten years was also allowed. But the Provincial Government is not ready to grant exemption on payment of octroi tax. However, learned counsel conceded that in the incentive scheme flouted by the Government for special industrial zone and agreements executed thereafter, between the industrialists and Government of Pakistan, Board of Investment, therein the Secretary Local Government Department was neither party nor signatory to any of those documents. Learned counsel stated that in such view of the matter, the petitioners desire to approach the Federal as well as Provincial Governments by way of filing representations for granting exemption of octroi duty and export tax instead of seeking relief through instant Constitutional petitions. In this behalf he also gave in writing that he be allowed to withdraw the petitions, to this extent, with further request that observations may be made that if such representations are filed, the Government will dispose of the same expeditiously."
25. ' It seems that after above observations representation by petitioner was made to Government of Balochistan through Secretary Local Government Rural Development & Agro villes Department and that representation was accepted vide notification, dated 12-11-1998 and to enforce this notification a C'.P. No,434 of 1998 was filed by petitioners M/s Sadiq & Sons Tin Plates Limited and during pendency of f petition the notification was withdrawn by the Chief Minister Government of Balochistan by issuing fresh notification, dated 1-12-1998 and the last mentioned notification was challenged by petitioner M/s Sadiq & Sons Tin Plates Limited in C.P. No,474 of 1998 on the ground that Chief Minister has no powers to withdraw earlier notification and as it has been held that the Chief Minister is empowered to withdraw the notification in exercise of the powers conferred upon him under Rule 38(1) read with Rule 39(3) of the Balochistan Government (Rules of Business), 1976, therefore, the same position emerges which was prevailing prior to filing of C.P. No,263 of 1998.
26. ' Thus it is not necessary to examine whether the Government of Balochistan is competent to give exemption in payment of the octroi to the petitioner Company in view of the Commitment made with it by the Federal Government in terms of incentives scheme flouted for special industrial zone Winder because above findings still hold the field. However, the petitioners can again, if desired by them, make representation to the Government for considering their request to allow exemption from making payment of the octroi.
27. As a consequence of above discussion C.P. Nos. 434 and 448 of 1998 are dismissed as having become infructuous; whereas C.P. No,474 of 1998 filed by M/s. Sadiq & Sons Tin Plates Limited, is dismissed on merits with cost.