P L D 2011 Supreme Court 347 (PLP)

ASIF SAEED KHAN KHOSA, J.

The necessary facts giving rise to the present appeals by leave of the Court are that the respondents are doing business of cotton ginning, etc. at different places in the Province of Sindh and their business activities are controlled by the West Pakistan Cotton Control Ordinance, 1966 and the Rules made thereunder known as the West Pakistan Cotton Control Rules, 1966. The respondents were paying the necessary fee under the Rules (Commonly known as the cotton fee) at the rate of Rs.6 per 100 kilograms up to the cotton season 1997-98 but all of a sudden they received notices of demand from the Director Excise and Taxation, Sukkur Division, Sukkur showing some amount as arrears of cotton fee for the last seven years/season up to 1997-98. The said arrears were claimed by the department as difference of amount calculated on the basis of a Notification statedly issued by the Government of Sindh, Agriculture and Livestock Department, Karachi on 17-2-1991 whereby the cotton fee was enhanced from Rs.6/- to Rs.10/- per 100 kilograms. The respondents challenged the said notices of demand before the High Court of Sindh through different Constitution Petitions which were allowed by a learned Division Bench of the High Court of Sindh, Karachi through a consolidated judgment dated 2-11-2000 and detailed reasons for the said judgment were released on 11-11-2000. It was observed in the said consolidated judgment as follows: "It is an admitted position that the petitioners were paying the fee at the rates fixed by the respondents upto 1989. The notification was issued in 1991 but was not gazetted. It is a settled law that simple issuance of notification which was not gazetted was always declared to be without lawful authority and nobody can claim any benefit from it. Even if the argument of learned Add. A.G. was to be accepted be has not been able to satisfy us as to why there was total silence for more than seven years. If indeed that amount was increased then it would have been demanded when the goods were going through the check post. There is nothing on record to show that after the notification a demand was made which was not paid or met. It is also not denied that the petitioners have been paying at the old rates up to date." As a result of the observations reproduced above it was held by the learned Division Bench of the High Court of Sindh, Karachi as under;

"Accordingly we accept these petitions and declare the demand dated 2-10-1998 as without lawful authority as it is based on a notification dated 17-2-1991 which was not gazetted when the demand was made." The said consolidated judgment rendered by the learned Division Bench of the High Court of Sindh, Karachi has been assailed by the appellants before this Court through the present appeals after leave to appeal had been granted by this Court in that regard on 4-12-2001.

2. Mr. Muhammad Kasim Mir Jat, Advocate Supreme Court appearing for the appellants on behalf of the learned Advocate-General, Sindh has placed a copy of Notification No.8(202)SO(EXT)/91 which was published in the Sindh Government Gazette on November 30, 1999 manifesting that the cotton fee had been increased by the Government of Sindh, Agriculture & Livestock Department, Karachi from Rs.6 to Rs.10 per 1000 kilograms with effect from 17-2-1991. He has, however, conceded that for good seven years or so after such increase in the cotton fee no demand had been made from the respondents to pay the increased fee and also that although the above mentioned Notification had been issued on 17-2-1991 yet the same had been published in the Sindh Government Gazette for the first time on 30-11-1999. He has also remained unable to deny that the appellants have no proof available with them to establish that the respondents had become aware of the increase the cotton fee before publication of the afore referred Notification in the Sindh Government Gazette or through any other mode. It is also not disputed by him that the law does not recognize any retrospective enforceability of a fiscal measure. The case of Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 throws sufficient light on the legal position that issuance of a Notification is not of any significance or legal importance till it is published in an official Gazette. According to section 2(41) of the General Clauses Act, 1956 a `Notification' means a Notification published under proper authority in an official Gazette. In this view of the matter before its publication in the official Gazette the Notification relevant to the present appeals could not even be lawfully termed as a Notification. In these peculiar circumstances of this case we' have not been able to take any legitimate exception to the declaration made by the learned Division Bench of the High Court of Sindh, Karachi that notices of demand issued against the respondents on 2-10-1998 were without lawful authority and of no legal effect. These appeals are, therefore, dismissed with no order as to costs. M.A.K./G-3/S Appeals dismissed.