MAULVI ANWARUL HAQ, J.-- The petitioner and respondent No. 2 stand constituted and established under the provisions of the Punjab Local Government Ordinance, 2001. The grievance being made out in this writ petition is that whereas in terms of Section 54(on) of the said Ordinance, it is the petitioner who is entitled to organize and consequently -to recover the fee on the Cattle Market or fair as also to recover the fee on the transfer of immovable property vide item No. 2 of Part II of Second Schedule to the said Ordinance, 2001, the respondent No. 2 illegally collected the fee for the Cattle Markets from 14.8.2001 to 31.12.2001 while the fee on transfer of immovable property was so collected by respondent No. 2 from 14.8.2001 till 30.11.2001. The matter was agitated before the competent officers and authorities, all of whom, including the DCO, Chakwal as also the Provincial Government issued orders that the amount be refunded to the petitioner but the same has not been done.
2. Malik Kabir Ahmad learned counsel for the petitioner argues that so far as the tax on transfer of immovable property is concerned under the erstwhile Punjab Local Government Ordinance, 1979 as also under the said ' Ordinance of 2001 the petitioner (Tehsil Municipal Administration, Talagang) is empowered to levy and recover the same while regarding the fee on cattle Mandis Section 54(on) was added vide Ordinance XVIII of 2001 w.e..f. 25.8.2001 authorizing the petitioner to levy and collect the said fee.
Admittedly, the respondent No. 2 had been levying and recovering the said fees from the period 14.8.2001 to 30.11.2001 and from 25.8.2001 to 31.12.2001 respectively and despite orders passed by the competent authorities under the said Ordinance, 2001, the respondent No. 2 has no refunded the amounts recovered. Learned A.A.-G., on the other hand, argues that so far as the matte of levy of fee on Cattle Mandis is concerned, it is true that Section 54(on) was added w.e.f. 25.8.2001 but there was no corresponding amendment in the 2nd Schedule according to which, in fact, it is the Union Government who is authorized to levy and recover the said tax. Mr. Muhammad Amir Butt learned counsel for respondents Nos. 2 and 3 argues that in terms of the provisions of Chapter XV111 of the Punjab Local Government Ordinance, 2001 particularly Section 187 thereof, the respondent No. 2 was fully authorized to levy and recover the said fee/tax upto 30.6.2001 whereas the necessary arrangements were made by 30.11.2001 and 31.12.2001 respectively.
According to the learned counsel in view of the said provision, the orders passed by the Provincial Government and the other officers are without lawful authority inasmuch as the respondent No. 2 was directed to make the refund. Malik Muhammad Kabir rejoins to draw the attention of the Court to an amendment in the Second Schedule vide Ordinance XXVI of 2001 w.e.f. 13.10.2001 authorizing the petitioner to levy and recover the fee/tax on the Cattle Mandis.
3. I have gone through the file of this writ petition in the light of the above-noted contentions of the learned counsel for the parties and the learned A.A.G. Now so far as the matte of organizing Fair and Cattle Markets is concerned, Section 54(on) was enacted vide Punjab Ordinance XVIII of 2001 empowering the petitioner-Administration to organize the Cattle Fairs and Cattle Markets.
However, at the same time corresponding amendment was not made in the Second Schedule with reference to Sections 39(b), 54(1), 67(i) and 88(b) of the Punjab Local Government Ordinance, 2001.
This amendment was brought about vide Punjab Ordinance XXVI of 2001 whereby Item No. 2 of Part-Ill of Second Schedule of the said Ordinance was deleted and the same item was included in Part-II of the said Second Schedule. The effect of the said amendment is that the petitioner has been authorized to impose and collect fee on sale of animals in the Cattle Markets. It is an admitted position that the respondent No. 2 had been imposing and receiving the said fee from 14.10.2001 to 31.10.2001. Now coming to the contention of Mr. Muhammad Amir Butt, Advocate, Chapter XVIII of the said Punjab Local Government Ordinance, 2001, provides, inter alia, for the succession, administrative and financial transitions. Now under Section 180 the properties, assets and liabilities of the existing Local Councils are to be succeeded by the Local Government established under the said Ordinance. According to clause (b), the District Government is to, succeed the District Council while according to clause (c) the Tehsil Municipal Administration is to succeed the Municipal Corporations, Municipal Committees and Town Committees, as the case may be. Section 185(1) reads as follows:- "
185. Financial transition.-- (1) All taxes, .Cess, fees, rates, rents, tolls and charges which were being charged, levied and collected by any office of the Government, development authority, water and sanitation agency, board or solid waste management body or any Local Council, shall continue to be charged, levied and collected under this Ordinance by the successor Local Governments and every person liable to pay-such taxes, cesses, fees, rates, rents, tolls and charges and accumulated arrears and receivables shall continue to make payment thereof until revised, withdrawn or varied under this Ordinance.
Section 187 is to the following effect:- "187. Transitional timeframe.-- Alt actions required for giving effect to the provisions of this Ordinance and transition to the Local Government systems set up thereunder shall .Be completed by the 30th day of June, 2002."
Mr. Muhammad Amir Butt relies on the said provisions in support of his contention noted above that the respondent No. 2 was authorized to keep on levying and receiving the said taxes upto 30.6.2002. However, upon a plain reading of the said Section 185(1), Section 187 alongwith Section 180 of the said Ordinance, 2001, the said contention of the learned counsel has no force. The reason being that the order of succession has already been prescribed and the said financial transition provided in Section 185(1) is subject to revision, withdrawal or variance under the said Ordinance.
As noted by me above, so far as the matter of collection of fee -on the transfer of immovable property is concerned, even under the erstwhile Punjab Local Government Ordinance, 1979, it was the petitioner's predecessor who was authorized to levy and recover the said tax while in the matter of the fee on the sale of ..The cattle, there is an apparent revision and variance made under the very Ordinance, 2001, authorizing the petitioner to organize the Cattle Mandis and then to charge fee on the sale of cattle in the Mandis.
4. Learned A.A.G. And Mr. Muhammad Amir Butt then contended that so far as the matter of collection of tax on transfer of immovable property is concerned, the contract was granted by the respondent No. 2 for the relevant period ri respect of the entire Zila and it cannot be settled in the course of present proceedings as to what amount is due to the petitioner. At the same time, they draw my attention to the mechanism provided in the said Ordinance itself for resolution of such like dispute. The relevant provision is Section 140(4)(c). Under the said provision of law, a Zila Mushavirat Committee comprising of the Zila Nazim, Naib Zila Nazim and all Tehsil Nazims and Town Nazims in the District is to be constituted which is to meet at least once in every three months or as and when requisitioned by the Zila Nazim or on the request of any two members of the said Committee to perform the functions stated in sub-section (4) of Section 140 which, inter alia, cover resolution of intra-District disputes.
5. For all that has been discussed above, this writ petition is allowed in the following manner:-
(i) The respondent No. 2 to pay to the petitioner the amount of fee on the sale of Cattle in the Mandis within the jurisdiction of the petitioner for the period 14.10.2001 to 31.12.2001.
(ii) It is declared that the petitioner is entitled to recover tax on uausfei of immovable property from 14.8.2001 to 30.11.2001 and that the respondent No. 2 has acted without lawful authority in levying and collecting the said tax during the said period.
The Zila Nazim to immediately convene the meeting of the Zila Mushawirat Committee wherein the exact amount due to the petitioner on account of tax on the transfer of immovable property within its jurisdiction from 14.8.2001 to 30.11.2001 shall be determined and upon said determination be paid to the petitioner by the respondent No. 2.
(iv) The above directions to be complied within height weeks of this judgment.
No orders as to costs.