Ibis order disposes of the following two writ petitions :---
(1) W. P. No. 1113/75 Rehmat Ullah and 19 others v. Province of Punjab and 2 others.
(2) W. P. No. 1346/75 Nur Hussain and 38 others v. Province of Punjab and 2 others.
2. The Commissioner, Lahore Division, by order which was to be notified in the Gazette, directed under rule 7 of West Pakistan Municipal Committee Imposition of Taxes Rules, 1960 and under sections 33 and 34 of the Municipal Administration Ordinance, that the slaughter fee leviable in the cases of sheep and goat shall be at Re. 1 per bead and for cow and buffalo at Rs. 5 per head. This order of the Commissioner was sought to be implemented by realising enhanced fee. The fee earlier leviable was .25 paisas for goat or sheep and Re. 1.25 in case of cow and buffalo. The first objection was filed by the butchers of goat and sheep in May challenging this levy. The next was filed by the butchers of cow and buffalo in June 1975, challenging the enhanced levy which was sought to be given effect to forthwith. The record of the Municipal Committee was obtained and the case was examined in its entirety.
3. The facts appearing from the record show that a decision was taken by the Municipal Committee, Sheikhupura, on 2-8-1969 to enhance the slaughter fee from .25 paisas in respect of goat arid sheep to Re. 1 per head arid from Re. 1.25 to .Tie. 5 per head in respect of cow and buffalo.
A notice issued on 8-8-1968 inviting objections by 9-9-1968 and the date of their hearing before a Sub-Committee was fixed as 12 9-1968 at 9 a.m. The Committee was to submit its report by 24- 91968. In response to the public notice objections were received and dealt with by the Sub- Committee which ultimately decided to recommend the enhancement of the fee to 50 paisas for goat and sheep and Re. 2.50 for cattle. The Municipality adopted this recommendation and submitted the proposal to the Collector of the District. The proposal came to be accepted with modification by the Commissioner exercising the delegated powers of the Government under the Imposition of Taxes Rules, 1960 and he levied a fee of rupee one per head in respect of sheep and goat and rupees five in respect of cow and buffalo.
4. The contentions of the petitioners are that before the enhanced rate was notified and published in the Gazette which took place on 29-8-1975 i.e. After the Institutions of the petitions, no recovery at the enhanced rate could be made. Secondly, it is stated, that the levy had to be by means of a bye-law a; this item was included in Schedule V and was one of those on which bye-laws could be framed. It is taken to be a case where no bye-laws exist and consequently the levy itself is bad.
Thirdly, it has been contended that the procedure prescribed under the Imposition of Taxes Rules, 1960 has not been observed because the unanimous recommendation of the Sub- Committee as well as of the Municipal Committee has been modified without giving any reasons and without stating so. Besides, the proposals drawn up in 1960 would be deemed to have been waived or exhausted by 1975 and could not be revived with a view to give effect to this proposal which was initiated in 1968.
5. It is correct and the rule 7(2) itself provides that "the taxation proposals sanctioned under sub- rule (1) shall be notified in the official Gazette and shall come into force on and with effect from such date subsequent to the issue of the notification as may be specified in the notification." The Commissioner sanctioned the levy on 25-3-1975 and so informed the local bodies as well as the authorities responsible for the printing of it in the Gazette. However, the fact remains that the Gazette containing this notification came to be published on August 29, 1975. The order of the Commissioner itself contained a condition which was that "it will come into force from the date of publication of this notification." In view of this reservation in the notification itself and the law referred to, the notification could not be given effect to nor could the petitioners be made liable to pay at the enhanced rate before August 29, 1975. If any recovery at that rate has been made it is without lawful authority and of no legal effect and the petitioners are justified in claiming either refund or adjustment of it in future.
6. As regards the other grounds, it appears that it is not correct to state that the Municipal Committee has failed in its duty of framing bye-laws. In the Punjab Gazette of November 26, 1926, there appears the bye-law made by the Notified Area Committee of Sheikhupura which prescribes the fee by its clause No. (i91 and provides that "every person using the slaughter-house shall pay fees at the following rate for each animal slaughtered." It was one anna and six pies per head for sheep, goats, lambs and kids find eight annas per bead for oxen, cows, buffaloes and calves. It cannot, therefore, be said that the bye-laws are not there. It cannot also be argued that where the bye-laws make a provision, recourse cannot be taken to the Imposition of Taxes Rules, 1960 for altering the rate prescribed in the bye-laws. Actually, the procedure prescribed under the Imposition of Taxes Rules, 1960, is more onerous and if it has been complied with such an objection cannot be sustained.
7. No doubt, the proposal was initiated in 1968 but there is nothing on the record to suggest that a decision had been arrived at differently from the present one at any stage of the examination of the cases by the departmental authorities. As a matter of fact, the departmental authorities supervising the work of the Municipal Committee had always been inclined to accept the proposal which was put to the public and not the one which had found the approval of the Committee or the Municipal Body itself. In such a background it cannot be urged with any success that the proposal initiated in 1968 had exhausted itself and that the procedure then adopted cannot be availed of for notifying the additional levy.
7-A. The Commissioner in these cases was exercising the powers possessed , by the Government.
There is no reservation in rule 7 that "the Government in modifying the proposals received shall also record reasons for modification" Therefore, the reasons were not a necessary part of the order of enhancement. The power was possessed and has been exercised in the manner in which it was required to be exercised.
8. In view of what has been held, these two petitions are allowed to the extent that they are challenging the levy of the slaughter fees at the enhanced rates previous to the publication of the notification in the Gazette on 29-8-1975. As regards their claim for the subsequent period, there is no merit and the petitions are dismissed with respect to it. In view of partial success, the panics are left to bear their own costs.