Z. A. CHANNA , J.--This constitutional petition is directed against the levy, demand and recovery of octroi from the petitioner in respect of the goods imported by it, on the basis of a notification of the Provincial Govern--ment of 21-3-1973, as amended by the notification o17-5-1973.
2. The circumstances which have led to the filing of this petition are that in virtue of the powers delegated to the Deputy Commissioner, Sukkur, under letter No. 1(4)11/7!, dated 18-10.1972, the Deputy Commissioner issued a public notice under section 9 of the Sind People's Local Government Ordinance, 1972, on 29-11-1972, stating that it was proposed to include certain survey numbers, including the survey numbers on which the petitioner's tastory is located, within the limits of the Shikarpur Municipality, and inviting objections to the said proposal. Copies of this notice were inter alla sent to the Secretary, Local Government, Karachi, to the Mukhtiar kar, Shitar--pur, for wide publicity and to the Administrator, Shikarpur Municipality for similar publicity. It appears that no objections were received to the said proposal nor any person expressed a desire to be heard in person in respect of the said proposal and accordingly by Notification No. 1(48)-1.1/72, dated 21-3- 1973, the Government of Sind included certain survey numbers within the Shikarpur Municipal limits.
This otification was published in the Sind Government Gazette of March 29, 1973. However, the notification did not Include the survey numbers on which the factory of the petitioner Is located.
Subsequently, this notification was amended by a notification, dated 7-5-1973, and published in the Sind Government Gazette of May 17, 1973, whereby Survey Nos. 368 to 446 of Deb Raiswab, Tsluka Shikarpur, on which the factory of the petitioner is located, were included within the Shikarpur Municipal limits. In view of this notification a Demand Notice for payment of octroi on the goods imported by the petitioner for its factory was served by the Shikarpur Municipal Committee on the petitioner. The petitioner by this petition has sought to impugn the validity of this demand notice and the Government notifications of 21-3-1973 and 7- 5-1973, on which the demand notice is based.
3. We have heard Mr. Noor Mohammad, the learned counsel for the petitioner, and Mr. Usman Ghani, learned Additional Advocate. General, who appeared for the respondents.' The first contention of the learned counsel for the petitioner was that the amending notification of 7-5-1973, which is headed as 'corrigendum', amounts to a fresh act of stension. Inas--much as It make to bring within the limits of the Shikarpur Municipality areas which were not included therein under the earlier notification of 21-3-1973, and consequently the procedure parescribed in section 9 of the Sind People's Losal Government Ordinance, 1972, hereinafter referred to as the Ordinance, should have been repeated. In order to appreciate the argument of the learned counsel we may reproduce the said section, which runs as follows "9. E=tensfan, alteration or curtailment of counsel limits..-Government may, after inviting objections and bearing those who wish to be heard and after consulting the People's Municipality or People's Town Committee, as the case may be, extent, curtail or alter the limits thereof or declare that a particular urban area shall, from a date to be specified cease to be a Municipality or a town or part thereof or convert a town into a Municipality or vice versa."
4. The precise contention of the learned counsel for the petitioner was that before issuing the amending Notification of 7-5-1:973, the Government should have again invited objections, heard those who desired to be heard and consulted the Shikarpur Municipality. We drew the attention of the learned counsel to the Public Notice issued by the Deputy Commissioner, Sukkur, on 29-1I-1972, that is before the issuance of the first notification, which specifically states that Survey Nos. 368 to 446 were also proposed to be included within the limits of Shikarpur Municipality. This notice, as already mentioned, was directed to be given wide publicity both by the ,t Mukhtiar kar, Sbikarpur as well as the Administrator of the Shitarpur Municipality, but no objections were received from any person. I1 is thus clear that the requirements of section 9 as to inviting of objections and giving opportunity of bearing to the objectors were complied with before the amending n )tification of 7- 5-1973, was issued, even in respect of S. No'. 38 to 446. In view of this position and the public notice referred to above, Mr. Noor Mohammad did not further press this point.
5. The next submission of the learned counsel for the petitioner was that as it is clearly mentioned in the notification of 21-3-1973, the delegation to the Deputy Commissioner was by a letter whereas the delegation could only be made by means of a notification published in the official Gazette, as provided by section 93 of the said Ordinance. It is not disputed by the respondents that in the instant case any delegation in respect of the exercise of powers under section 9 of the said Ordinance w made by a notification published in the offcial Gazette, and have conceded that it was by means of a letter. However, both the notifications of 21-3-1973 and 7-5-1913, were issued not by the Deputy Commissioner but by the Government itself which has power under section 9 to issue the same What the Deputy Commissioner only did was to issue a public notice inviting objections to the proposal to Viand the limits of the Shikarpu Municipality to certain areas. In doing so, the Deputy Commissioner would be deemed to have acted as an agent of the Government. We do not think that it was a mandatory requirement of the law that the Government itself should issue the notice for inviting objections. It could ask the Commissioner or Deputy Commissioner or any other officer or authority subordinate to it to perform this preliminary function. Even if we were t assume for argument sake that section 9 con'emplated tae Inviting and the hearing of objections by the Government and not by any subordinate authority, the requirement would be considered directory and not mandatory, since it has not been shown that any p~ejudice has been caused to the petitioner or any other person thereby, nor is there any express or eve implied provision in the statute, that in default of following these requirements the proceedings shall become invalid. Reliance for this view is placed on the observations of their I ordships of the Supreme Court in Ntaa Muhammadl Khan v, Mian Ajral Ragib (1) where the test for determining ~ whether a provision in a statute is directory or mandatory is laid down as follows :- "As a general rule however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. ,To put it differently, If the Act is mandatory disobedierce entails serious legal consNuences amounting to the invalidity of the act done in disobedience to the provIsion."
6. It was next contended by the learned counsel for the petitioner that the extension of the limits of the Shikarpur Municipality by two notifica--tions of the Government, being for the limited purposes of octroi only, war not valid and was not envisaged by section 9 or any other provision of the said Act. His argument was that in effect the Government had extended the octroi limits of Sbikarpur Municipality and authorised imposition of octroi by it in non-Munizipal areas, which rs not permitted by statute. In support of his contention, the learned counsel relied upon the decisions In Municipal Committee, Multan v. Burmah Shell (2) and Pakistan Tobacco Company v. Karachi Municipal Corporation (3). In the Lahore case, the Burmah Shell bad challenged the notice of demand issued by the Municipal Committee, Lya'lpur, claiming c droll charges on the import in the Mur ic;p.I .Area of furnace oil. It was held that since the sale c f oil had taken place at the office of the company, which was not situated within the limits ef the Municipal Committee concerned, such goods were neither used nor consumed within the area of the Municipal Committee and hence they cannot be subject to o .Trot tax.
7. In Pakistan Tobacco Company's case, the validity of the terminal tax imposed by the Karachi Municipal Corporation on goods Imported into and used in the factory of the Pakistan Tobacco Company was challenged on the grounds that the factory of the company was situated outside the territorial limits of the Karachi Municipal Corporation. It was found that during the pendency of the proceedings in the High Court, the Municipal,t limits of the Karachi Municipal Corporati -n were erttcnded so as to incorporate the Sind Industrial Trading hatate, where the factories of Pakistan Tobacco Company Ltd. Were situated. It was held that the terminal tax levied by the Karachi Municipal Corporation before the date of such extension was invalid, but from the date of such notification. The position radically charged, and the Sind Industrial Tracing Estate having become an area wi,hin the Municipal limits, the Karachi Municipal Corporation became fully empowered to impose a tax on the import of goods for consumption, us: or sale within the Muni, ipality as also to levy a tax on the export of goods from the Municipality.
8. The learned Additional Advocate-General, on the other hand, placed reliance on section 3 of the said Ordinance and conOended that the Provincial Government was fully, competent to extend only some and not all the provisions of the said OrdinaEce to a Municipality or part of a Municipality. His precise argument was that the Government had full
(1) PLD 1974 SC 134(2) PLD 1976 Lab. 726
(3) PLD 1967 SC 241 powers not only to except an area from any of the provisions of the said Ordinance but further, while including en area within a Municipality or a Local Council, as defined in the said Ordinarce, to afecify which provisions of the said Ordinance alone would be applicable to that area. His argument in otter words was that the Government, while including an area within any Municipal limits, could pick out one or more provisions of the said Ordinance and apply only thcse provisicns to the said Erea and not the remaining provisions of the said Ordinance relating to Municipal Committees. 1n order to appreciate tie contention of the learned Additional Advocate-General, it would be appropriate to set down fn extenso the provisions of section 3. The said section reads as follows :- "3. Power to except Local Areas from proidsions unsuited thereto.-(1)
Should the circumstances of any area in which this Ordinance has been brought into force be such that, in the opinion of Government, any of the provisions of the Ordinance are unsuited thereto.
Government may, by notIfication in the official Gazette, except that area or any part thereof from the operation of those provisions and thereupon the said provisions shall not apply to such area or part thereof until the notification is rescinded.
(2) While such exception as aforesaid remains in force Government may make rules for the regulation of the matter so excepted."
9. While we agree with the learned Additional Advocate-General that section 3 does confer powers on the Provincial Government to except any area, in which the said Ordinance bas been brought into force, from the operation of any provisions of the said Ordinance which are considered unsuited thereto by reason of the special circumstances prevailing in that area, it has at no time been the case of the respondents that th circumstances of the areas which have been included within the limits of Shikarpur Municipality are such that except the imposition of Octroi in such area, the other provisions of the said Ordinacce relating to Municipal areas ere unsuited thereto. The Public Notice issued by the Deputy Commis--sioner, regarding the proposed inclusion of such areas in the limits of Shikarpur Municipality, makes no mention of the unsuitability of such area for the application of the various provisions of the said Ordinance relating to Municipal sieas. On the contrary, the Public Notice seems to suggest that it was proposed to include the said areas in the limits of Shikarpur Municipality for all municipal purposes. The two notifications Q Including the said areas within the limits of Shikarpnr Municipality also neither refer to section 3 nor do they make any mention of the unsuitability of such areas for the application or operation of any of the provisions of the said Ordinance in the said areas. The counter-affidavits filed by the Administrator of the Shikarpur Municipality and tie Mukhtiar kar, Shikarpur, also neither refer to section 3 nor of any unsuitability of the above area for the application of any of the provisions of the said Ordinance. We a inclined to the v~ew that tha two notifications extending the limits of the Shikarpur Municipality for the purposes of Octroi only are a colourable exercise by the Government of the power which it purports to have under .Section 9 and that in effect they seek to impose or rather authorise the collection of octroi in areas which were clearly otherwise not Municipal areas at all. We do not think that it is permissible under the scheme o the said Ordinance, by the device of extending Municipal limits to non Municipal limits for the purposes of collection of octroi only, to impose octroi within the areas which otherwise are clearly non-Municipal areas.
10. It was also contended by the learned counsel for the petitioner that since be was the primary person to be affected by the extension of Municipal limits of Shikarpur, he was entitled to an individual notice and a bearing, before the a:tension was effected, and since such notice was not given to him, the provisions of section 9 have been violated and the extension is on that account also invalid. In our opinion, the argument of the learned counsel is misconceived. Section 9 requires the inviting of objections and hearing such persons as desire to heard. It thus contemplates giving of Public Notice to the residents of the areas proposed to be included or excluded from Municipal limits. Subsection (4) of section 95 of the said Ordinance provides that a notice intended for the public in general shall be deemed to have been sufficiently served if a copy thereof is affixed in such public place as may be determined by the Council concerned. In the instant case, the Public Notice inter alia was sent to the Administrator of the Municipality and the Muthtiarkar, Shikarpur, for wide publicity. Accord-D ing to the counter-affidavit of the Administrator. This notice was duly published by announcement on local broadcasting service and pasting of notices in the offices of the Deputy Commissioner and Controlling Authority, the Municipality, Shikarpur, Assistant Commissioner, Shikarpur and Mukhtiar kar, Shikarpur. There was thus suffi..Ient compliance with the requirements of subsection (4) of section 95 and we consider that the notice was sufficiently served.
11. 1n view of our finding on the point of extending the limits of the Sbtkarpur Municipality for the purposes of octroi only, we would allow this petition with costs, declare the two notifications of the Government dated 21-3-1973 and 7-5-1973, extending the limits of the Shikarpur Municipality, as without lawful authority, and further declare that the levy, demand and recovery of octroi by ---- he Shikarpur Municipality from the petitioner is invalid and without lawful authority. We would further direct the respondent No. 1 to refund all sums recovered from the petitioner at octroi on the basis of the two notifications in question.
I. MAHMUD, J.-I agree.