1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought the following relief:--
(a) Issue writ restraining the respondents Nos.1 and 2 not to charge 20% commission from the petitioner on the sale of fish.
(b) Declare that the respondent No,1 has no lawful authority to recover 20% commission on sale of fish from the petitioner.
(c) Declare that the act of respondent No,1 by which he is recovering 20% commission on sale of fish from the petitioner is null, void, ab initio and unwarranted in the eyes of law.
(d) To direct the respondent No,1 to return the recovered amount by settling the account.
2. ' The relevant facts as contained in the memo. Of petition are that petitioner is a fish vendor at Fish Market, Kumber, District Larkana. The respondent No,1 has started recovering 20% commission on the sale of fish from petitioner and for the recovery thereof is using coercive methods. It is averred that the petitioner and other fish vendors approached respondent No,1 requesting to show any notification or order from competent authority empowering the recovery of 20% commission of sale of fish but the respondent No,1 refused to show any notification empowering the recovery of said amount. The respondent No,2 also turned deaf-ear. According to petitioner, no such commission is being charged within the territory of other Municipal Committees, Town Committees, Municipal Corporations, and Fish Sellers are paying rent only for_space reserved to the fish sellers by the local authorities. It is stated that the Larkana Municipal Corporation is charging Rs,300 per month from the fish sellers for running their business in the Fish Market.
3. ' The respondent No,1 has filed written comments contending that the petitioner is selling fish after paying prescribed fee to the Fish Contractor Municipal Committee, Kamber as per Bye-laws of the Municipal Committee. It is further explained that the Municipal Committee, Kamber under the bye- laws framed under District Management Act, 1901, is putting the Fish Market to auction, since its very existence on certain terms and conditions for each financial year and nobody has raised objection to the recovery of said tax, from the inspection till today. The Municipal Committee was charging 12 paisas (old) per rupee on the auction/purchase price of fish and with the introduction of Aashari System', the Municipal Committee has started charging 0.20 paisas per rupee through contractor in case of auction or Departmental collection in case of non-auction to the contractor. According to respondent No,1 it is fetching a handsontie amount from this source of income as its revenue, for running its business smoothly. It is averred that respondent No,1 is making recovery lawfully in accordance with law from the fish importers/sellers within limits of Municipal Committee, Kamber.
4. The respondent No,1 has taken plea that it is acting, as per law introduced in the year 1901 and has noting to do with the affairs of other Councils as every local council has its own bye-laws duly approved by the competent authority.
5. ' The respondent No,1 has further produced copy of Notification dated 27-6-1981 issued by Municipal Committee, Kamber which reads as follows:-- "Notification Dated 27-6-1981 ' No, MCK/G. Br/-690 of 1981.---In exercise of the powers vested under section 60(1) of Sindh Local Government Ordinance No,X1I of 1979 as delegated to the Council by the Government of Sindh, Local Government and Rural Development Department vide Notification No,OSD/ELECT/LG/DP- 27/79, dated 3rd June, 1980 read with Item 3, Part II of Schedule V of the said Ordinance in suppression of all previous Notifications issued in this behalf of all from time to time and in pursuance of Rules 6 and 7 of the Sindh Local Councils (Imposition of Taxes) Rules, 1979 the Municipal Committee, Kamber is pleased to regularize the imposition of Fish Market Dalali fee at the rate of 0.20 per rupee with effect from 1st July, 1981.
6. (Sd.)
7. (ALI HASSAN KHAN HAKRO), CHAIRMAN, MUNICIPAL COMMITTEE, KAMBER."
8. ' The respondent No,1 has further produced photo copy of an agreement dated 16-8-1962 executed between a Contactor of Fish Market and Chairman, Municipal Committee, Kamber to the effect that the contractor shall recover 12 paisas per rupee on the sale of fish and if the contractor feels any difficulty in recovery of the said amount the Municipal Committee shall provide all possible assistance and the contractor shall give licence to the persons residing in the town and outsider desirous of selling fish in the market. This petition came for Katcha Peshi on 8-3-2000 and the status quo was directed to be maintained. The status quo was however, vacated on 28-4-2000 with the direction that any amount recovered by the respondents from the firshermen shall be deposited with the Additional Registrar of this Court at Larkana till final adjudication of the petition.
9. The Additional Registrar was directed to invest/deposit the amount in some profitable scheme.
10. ' On 18-8-2000 the learned counsel for the petitioner was confronted with the question whether the imposition of 12 paisas (old) and 20 paisas (new) as commission imposed by respondent, Municipal Committee, Kamber, is in accordance with the bye-laws. The learned counsel for the respondent sought time to produce bye-laws duly approved by the competent authority. The time was allowed. On 23-5-2001 the learned counsel for respondent No,1 was directed to place before this Court the entire record relating to the imposition of Fish Market Dalali Fee levied under Notification, dated 27-6-1981 including documents relating to the compliance of the various sections and rules for imposition of tax or fee under the Sindh Local Government Ordinance, 1979 and rules made thereunder.
11. ' Today we have heard the petitioner in person and Mr. Abdul Khalique Bhutto, learned counsel for respondent No,
1. Mr. Abdul Khalique Bhutto has not produced any record to show that before issuing Notification dated 27-6-1981 purported to be in pursuance of Rules 6 and 7 of the Sindh Local Councils (Imposition of Taxes) Rules, 1979, compliance was made of the mandatory requirements contained in Rules 3, 4, 5, 6 and 7. The above Rules read as follows:-- "3. A council may at any time review its financial position if in its opinion any change in the tax structure is called for it shall formulate or cause to be formulated a taxation proposal: ' Provided that no taxation proposal shall be formulated in respect of a tax before the expiry of six months since its imposition, reduction, suspension or abolition.
4. (1) Every taxation proposal prepared under rule 3 shall be published alongwith a notice in daily newspapers for inviting objections and suggestions thereon within fifteen days of publication of the taxation proposal.
(2) The notice under sub-rule (1)--(i) may specify---
(a) the main feature of the taxation proposal;
(b) the class of persons or description of property or both affected thereby;
(c) the amount or rate of tax to be imposed and the previous amount or rate; if any;
(d) additional income likely to be raised by the imposition of the tax or the increase in the tax and the purpose for which this additional income is proposed to be spent;
(e) the loss of income likely to be caused by the abolition or suspension of the tax or reduction in the rate of the tax and the manner in which this shortfall in income is proposed to be made up;
(f) justification of the taxation proposal; and
(g) any other particulars considered necessary for the information of the public;
(ii) shall accompany a taxation programme specifying-
(a) the date, which shall not be earlier than fifteen days from the publication of the notice, by which objections or suggestions may be made by the inhabitants;
(b) the date or dates fixed for the hearing of objections and suggestions received under this rule;
(c) the date by which the final taxation proposal shall be sent to Government for sanction.
5. ---(1) All objections and suggestions received under rule 4, shall be entered in a register maintained for the purpose.
(2) The Finance Committee of the Council shall hear and examine the objections and suggestions under the Chairmanship of Mayor or Chairman of the Council, as the case may be.
(3) On the date or dates fixed for the hearing of objections and suggestions, the Committee shall hear the same in public and shall afford all possible facilities to the persons making them to present their case.
(4) The Committee shall as early as possible after close of the hearing of objections and suggestions, draw up and furnish detailed report to the Council.
(5) The report under sub-rule (4) shall specify---
(a) the salient features of the taxation proposal;
(b) the number and nature of objections and suggestions received within the specified period;
(c) the manner in which the objections and suggestions were heard;
(d) the findings of the Committee in respect of each objection and suggestion heard by it;
(e) the recommendations of the Sub-Committee with regard to the taxation proposal indicating whether the recommendations are, as nearly as possible, in accordance with the model tax schedule, if any, framed by Government under section 6; and
(f) financial implications involved in such recommendations.
12. 6.--- (1) The Mayor or Chairman, as the case may be, shall present the report to the special meeting of the Council convened for consideration of the taxation proposal.
(2) the Council shall consider the report and for the reasons incorporated in its resolution-
(a) approve it with or without modifications; or
(b) drop the taxation proposal;
(c) if the Council approves the taxation proposal, with or without modifications, it shall be submitted to Government alongwith a copy each of the report of the Committee and the resolution approving it.
13. 7.--- Where Government has sanctioned the taxation proposal the order of Government shall be notified in the Official Gazette and such order shall come into force on and from such date as may be specified in the Notification."
14. ' Mr. Abdul Khalique Bhutto has contended that commission fee is not a new tax levied under the Sindh Local Council (Imposition of Taxes) Rules, 1979, but it is an old tax which was levied in pursuance of the Bye-Laws made under section 48 read with sections 139, 140, 141 and 142 of District Municipal Act, 1901. Mr. Bhutto has produced the Bye-Laws according to which no place within Kamber Municipal District was to be used for the sale of meat or fish intended for human food without licence issued by the Managing Committee of Municipality. Only such vendors were allowed to sell fish in the Markets who have previously paid for and obtained permission to use the business place and the charges for the use of Public Markets and other place shall be as laid down in Schedule 'A' annexed to the Bye-Laws (Bye-Law No,4). It is provided in Bye-Law No,5 that "The Chief Officer shall after collecting fees at the rate specified Schedule A, grant annual licences in the form of Schedule B, valid for the official year, to persons desirous of selling commodities in the Municipal Public Market." It is further provided that, "the persons desirous of occupying stalls or sitting at daily rates permits shall, on payment of fees at the rates specified in Schedule A, be issued such permits by persons authorized in this behalf by the Chief Officer". According to Schedule 'A' annexed to the above Bye-laws the licence fee for each stall in Fish Market under Bye- Laws 4 and 5 was prescribed at Rs,120 annually at Rs,10 monthly.
15. ' Mr. Abdul Khalique, is not able to show from the above Bye-laws that the Municipal Committee, Kamber was empowered at any time to charge/impose any Fish Market Dalali Fee at the rate of Rs,0.20 per rupee (Or paisas 12 per rupee (old rates)). When Mr. Abdul Khalique Bhutto was confronted with this situation he placed reliance on the agreement executed between the Contractor of Fish Market and Chairman, Municipal Committee, Kamber on 16-8-1962 under which the contractor was authorised by the Chairman, Municipal Committee, Kamber to recover 12 paisas as tax (Mahsool) per rupee from the fish vendors. Mr. Abdul Khalique Bhutto was pointed out that an agreement between Contractor of Fish Market and the then Chairman, Municipal Committee, Kamber does not have the force of law. The learned counsel for the respondent merely reiterated that it is an old tax but was not able to show that an agreement between Contractor of Fish Market and Chairman, Municipal Committee, Kamber executed in the year 1962 shall have the force of law and shall have the effect of empowering the Municipal Committee, Kamber to recover such tax from the fish vendors.
16. We have very carefully considered the material brought on record and the contentions raised before us. On the basis of record produced before us we are of the considered opinion that the respondent No,1 is empowered to issue licence to the fish/meat/vegetable vendors and other shop/stall holders on charging licence fee, on annually, monthly or daily basis but is not empowered to impose and recover Fish Market Dalali Fee at the rate of 0.20 paisas per rupee or at any rate on the sale of fish by the vendors in the fish market situated within the Municipal Limits of Municipal Committee, Kamber.
17. ' It appears that the learned counsel for the respondent No,1 realised the legal infirmity in the imposition of impugned tax and therefore, he has been changing pleas from time to time. In the written comments filed on 7-4-2000 a plea was taken that it is an old tax/fee levied under the Municipal Committee, Kamber Bye-laws framed under District Management Act, 1901.
18. Subsequently when a plea was taken by the petitioner in his rejoinder to the effect that no fee, tax and charges --can be recovered other than specified in Schedule V of Sindh Local Government Ordinance, 1979, a copy of Notification dated 27-6-1981 (supra) was produced on 22-11-2000. Again realising that before issuing Notification dated 27-6-1981 under Rules 6 and 7 of the Sindh Local Councils (Imposition of Taxes) Rules, 1979, no compliance has been made of the provisions contained in Rules 3, 4 and 5, refuge was sought in the agreement dated 18-6-1962 executed between the Contractor of Fish Market and the then Chairman, Municipal Committee, Kamber.
19. A perusal of section 60 of the Sindh Local Government Ordinance, 1979 shows that the respondent No,1 may levy in the prescribed manner all or any of the taxes, rates, tolls and fees mentioned in Schedule V of the said Ordinance. A perusal of Schedule V in pursuance of section 60 of Sindh Local Government Ordinance, 1979, further shows that the respondent No,1 may levy in the prescribed manner all or any of the taxes, rates, tolls and fees mentioned in Schedule V to said Ordinance. A further perusal of Schedule V shows that the respondent No,1 is empowered to levy fee for issuance of licences/sanactions/permits granted and to levy for market and any other tax which Government is empowered to levy by law. Under section 120 of the Sindh Local Government Ordinance, 1979, everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding commenced, person appointed or authorized, jurisdiction or power conferred, licence, certificate or permit granted, rules or bye-laws made and order issued under any of the provisions 'of the repealed enactment shall, if not inconsistent with the provisions of this Ordinance, shall continue in force and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced, appointed, authorised, conferred, granted, made or issued under the Sindh Local Government Ordinance, 1979. Thus if the impugned tax/fee would have been in consonance with the provisions of Schedule V to the Sindh Local Government Ordinance, 1979 there could be some force in the contention of Mr. Abdul Khalique Bhutto, learned counsel for respondent No,1 that the impugned Fish Market Dalali Fee is an old tax and may be allowed to continue. However, since the impugned Fish Market Dalali Fee cannot be levied under section 60 of the Local Government Ordinance, 1979 read with Schedule V thereof, therefore, it cannot be allowed to continue, in addition to the reason that Mr. Abdul Khalique Bhutto has failed to show that such imposition fee had sanction of law at any time even prior to the promulgation of Sindh Local Government Ordinance, 1979.
20. ' For the foregoing reasons it is declared that the respondent No,1 has no lawful authority to recover 20% Fish Market Dalali Fee/commission on sale of fish from the petitioner or any other fish vendor and such act or any order in this behalf made by the respondent No,1 through its employees or any other person directly or indirectly is null, void ab initio and not warranted in law. The respondent No,1 is restrained from recovering any such commission/fee from the petitioner or any other person. If any amount has been deposited with the Additional Registrar as directed vide order, dated 28-4-2000 it shall be returned forthwith to the petitioner.
21. ' The petition is allowed as above with no order as to costs.
22. ' After hearing the petitioner and the learned counsel for respondent No,1, the petition was allowed by short order in the Court and these are the detailed reasons in support thereof.