P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑--On an application made by the Secretary, Municipal Committee, Chishtian, in the District of Bahawalnagar, Mr. Muhammad Nawaz Ali, Magistrate 1st Class, with powers under section 30 of the Code of Criminal Procedure at Chistian, passed an order on the 26th of October 1956, that warrant for realisation of Rs. 1,045, alleged to be due as tax from Manzoor Ahmad and Muhammad Hussain, be issued and the case should come up for further proceedings on the 8th of November 1956. This order was passed under section 89 of the Bahawalpur Municipal Act, 1943, which reads as follows:‑ 89.‑--"(1) Any arrears of any tax, water rate, lease money, rent, fee or any other money claimable by a committee under this Act may be recovered on application to a Magistrate having jurisdiction within the limits of munici pality, or in any other place where the person from whom the money is claimable may for the time being be resident, by the distress and sale of any movable property within the limits of his jurisdiction belonging to such person. The costs of such proceedings shall be recoverable from the defaulter in the same manner ac the said arrears‑ (2) An application made under subsection (1) shall be in writing and shall be signed by the Secretary of the com mittee, but it shall not be necessary to present it in person." Against the order of the Magistrate dated the 26th of October 1956, Manzoor Ahmad and Muhammad Hussain put in a petition for revision in the Court of the Sessions Judge, Bahawalpur, and on the 12th of March 1957, Mr. Ghulam Muhammad Dahar, who was then the Sessions Judge of Bahawalpur, made a recommendation that the order of the Magistrate should be vacated. On the matter coming up before me at a preliminary hearing on the 16th of April 1957, 1 directed the issue of notice to Manzoor Ahmad and Muhammad Hussain petitioners, the Municipal Committee, Chishtian, respondent and the State. A notice was issued to the State because the point involved was of some importance and it appeared to me that the concession in favour of the petitioners made by Malik Muhammad Din, Advocate, who appeared before the learned Sessions Judge for the Municipal Committee, Chishtian, was misconceived. When the matter came up before me on the 23rd of May 1957, the petitioners appeared in person, the Municipal Committee, Chishtian, the respondent, was represented by Malik Muhammad Din, Advocate, who had represented the com mittee before the learned Sessions Judge, while the State was represented by Mr. M. Anwar, Assistant Advocate‑General, West Pakistan. The learned Sessions Judge recommended the withdrawal of the order of Magistrate on the ground that the order of the Magistrate under section 89 of the Bahawalpur Municipal Act, 1943 had ceased to have validity. In making this recommendation the learned Sessions Judge relied on the Punjab Municipal Act (West Pakistan Second Amend ment) Ordinance, 1956), (West Pakistan Ordinance XXX of 1956), the relevant part of section 3 of which reads as follows:‑ 3. "(1) The Bahawalpur Municipal Act, 1943 (hereinafter called the said Act), is hereby repealed. (2) Notwithstanding the repeal of the said Act. (a) . (b) All appointments, rules, regulations, bye‑laws and orders made, notifications, and notices issued, taxes, tolls, rates and fees imposed or assessed, contracts entered into and suits instituted under the said Act shall be continued, and so far as may be, be deemed to have been made, issued, imposed or assessed, entered into and instituted under the Punjab Municipal Act, 1911, as amended by this Ordinance." From the order of the learned Sessions Judge it appears that it was contended before him by Mr. Abdur Razzaq, Pleader, who appeared for the petitioners before him, that the effect of clause (b) of subsection (2) of section 3 of the Punjab Municipal Act (West Pakistan Second Amendment) Ordinance, 1956 (West Pakistan Ordinance XXX of 1956) was to save only the suits which were pending on the date when the Ordinance was promulgated, and consequently the order of the Magistrate in the present case ceased to have validity on the 18th of December 1956, when the above Ordinance was promulgated by the Governor of West Pakistan. It further appears from the order of the learned Sessions Judge that the above‑mentioned argument of Mr. Abdur Razzaq was conceded to be correct by Malik Muhammad Din, Advocate, who appeared for the Municipal Committee, and was accepted by learned Sessions Judge. Mr. M. Anwar, Assistant Advocate‑General, contended before me that the recommendation should not be accepted; because it was based on a misunderstanding of the legal position and Malik Muhammad Din, Advocate, who had supported the petitioners in the Court of the learned Sessions Judge, adopted before me the arguments of Mr. M. Anwar. The only thing urged by the petitioners before me was that before issuing the warrant the Magistrate had not given them an opportunity to show that the levy of the tax, for which the Municipal Committee, Chishtian, had a warrant issued against them, was unjustified. In view of the arguments addressed before me, it appears necessary to examine the legal position of the warrant issued by the learned Magistrate, and I proceed to do so. The Bahawalpur State, which was a separate entity under the suzerainty of a Ruler, the Amir of Bahawalpur; became a part of Pakistan on the 14th of October 1955, when the Province of West Pakistan, popularly' known as "One Unit", came into being as a result of the enactment of the Establishment of West Pakistan Act, 1955. Section 10 of the Establishment of West Pakistan Act, 1955, made provisions with regard to the laws that were to apply to the different areas of the newly‑created Province of West Pakistan and subsection (1) of that section was in the following terms:‑ "(1) Except as otherwise provided in this Act, and subject to any order of the Governor‑General under section 5 of this Act and to the powers of any competent Legislature, all laws in force in West Pakistan immediately before the appointed day shah continue to apply to the areas and the persons to whom they would have applied if this Act had not been passed." In view of the provisions contained in subsection (1) of section 10 of the Establishment of West Pakistan Act, 1955, the Bahawalpur Municipal Act, 1943, which was in force in the Bahawalpur State on the 13th of October 1955; was to continue in force till amended or repealed by a competent legislative authority of West Pakistan. On the 23rd of March 1956, the Act known as the "Constitution of the Islamic Republic of Pakistan" came into force, but all laws in force in different areas of Pakistan continued in force till repealed or amended by competent Legislature because of the provisions contained in Article 224 (1) of the Constitution. On the 26th of October 1956, when the Magistrate passed his order which is impugned by the present petition, the Bahawalpur Municipal Act, 1943, which bad not been repealed or amended by any legislation by a competent authority, was in force and there can be no manner of doubt that on that date the order issued by the Magistrate was perfectly valid. The question to consider, therefore, is whether the validity of the order of the Magistrate was lost by reason of any legislation passed subsequent to that order. I might here mention that the Municipal Act (West Pakistan Second Amendment) Ordinance, 1956 (West Pakistan Ordinance XXX of 1956) was replaced on the 23rd of February 1957, by the Punjab Municipal (West Pakistan Amendment) Act, 1957 (West Pakistan Act VIII of 1957), the 5th section of which was precisely in the same terms as section 3 of West Pakistan Ordinance XXX of 1956, but this change in law does not appear to have been within the knowledge of the learned Sessions Judge when he made his recommendation on the 12th of March 1957. I might add that Ordinance XXX of 1956 had amended parts of section 1 of the Punjab Municipal Act (III of 1911) so as to make it applicable also to the districts of Bahawalnagar, Bahawalpur and Rahim yarkhan; which three districts before the establishment of the Province of West Pakistan, used to form the Bahawalpur State and the West Pakistan Act VIII of 1957 contained a provision to that effect. The Punjab Municipal Act in its 81st section contains provisions which in all material respects are similar to those contained in section 89 of the Bahawalpur Municipal Act, 1943, and it can hardly be open to question that if an application under section 81 of the Punjab Municipal Act (III of 1911), as amended by the West Pakistan Ordinance XXX of 1956,. had been made on or after the 18th of December 1956, an order, precisely in the same terms as the impugned order, could have been passed by the Magistrate under section 81 of the Punjab Municipal Act (III of 1911), and the point to consider is whether the reason given by the learned Sessions Judge for his view that the impugned order of the Magistrate in the present case became a dead letter when the West Pakistan Ordinance XXX of 1956 was promulgated, can be accepted. I have mentioned already that the reason given by the learned Session Judge for holding that the order of the Magistrate passed on the 26th of October 1956, lost all validity when the West Pakistan Ordinance XXX of 1956, was promulgated, is that clause (b) of subsection (2) of section 3 of that Ordinance saved ‑only the suits which had already been instituted. It appears to me that the attention of the learned Sessions Judge was not drawn to that part of clause (b) wherein ‑all orders made under the Bahawalpur Municipal Act, 1943, were to continue in force and were to be deemed, so far as may be, to have been made under the Punjab Municipal Act, 1911, as amended by the West Pakistan Ordinance XXX of 1956. The order of the Magistrate to which objection' has been taken by the petitioners was validly passed under section 89 of the Bahawalpur Municipal Act, 1943. The impugned order of the Magistrate which was undoubtedly valid on the 26th of October 1956, when it was passed, retained its validity, notwithstanding the repeal of the Bahawalpur Municipal Act, 1943, because clause (b) of subsection (2) of section 3 of the West Pakistan Ordinance XXX of 1956, saved its continued operation and could not be deemed to be invalid on the day when the learned Sessions Judge made his recommendation. On the 23rd of February 1957, the West Pakistan Ordinance XXX of 1956, was replaced by the West Pakistan Act VIII of 1957, which, as mentioned already contains in its 5th section provisions entirely similar to those contained in section 3 of that Ordinance, and therefore, the validity of the impugned order continued in spite of the passing of the Act. In view of what I have said above, I decline to accept the recommendation of the learned Sessions Judge and dismiss the petition, I have mentioned that the complaint of the petitioners was that the Magistrate had not given them an opportunity to show that the levy of the tax by the Municipal Committee which it wanted to realise by invoking the provisions of section 89 of the Bahawalpur Municipal Act, 1943, was not justified. That matter is not before me but if the petitioners have any objection to raise to the levy of the tax, they may, if so advised, raise it before the Magistrate who issued the warrant. It will be entirely for the Magistrate to determine whether or not the objections can be raised and if they can be whether or not they have any force. A. H. Petition dismissed.