1992 PLP 654 (MLD)

SALAHUDDIN MIRZA, J.‑‑‑This judgment shall also dispose of the following petitions in which the facts and principles of law involved are the same: (1) C.P. No.405/91: Indus Jute Mills Ltd. v. Government of Sindh and 2 others. (2) C.P. No.412/91: M/s. Central Cotton Mills Ltd. v. Additional Chief Secretary and 2 others. (3) C.P. No.438/91: M/s. Kotri Textile Mills Ltd. v. Additional Chief Secretary and 3 others. (4) C.P. No.442/91: M/s. Azmat Textile Mills Ltd. v. Additional Chief Secretary and 3 others.

2. All the petitioners, except the petitioner in C.P. No.405/91, are textile mills located at Dhabeji District Thatta and having their head‑offices at Karachi whereas the petitioner in C.P. No.405/91 is a Jute mill, also having its head office at Karachi but the location of its mill premises has been kept concealed, `as a guarded secret' so to say, and is not disclosed in the petition but we presume that the Indus Jute Mills is also located either at Dhabeji or at any rate within the territorial limits of Union Council Dabeji. Union Council Dabeji (respondent No.3) was so far recovering octori in accordance with the Octroi Schedule of 1988 on the basis of weight age. However, now respondent No.3 has revised the tariff rate from about 2000 % (two thousand per cent.) to 20,000 per cent (twenty thousand per cent.) by changing the basis of recovery from that of weight age to that of percentage (certain paisas per rupee) which was notified in the Sindh Government Gazette of April 9th, 1990. The new rates were effective from 1st July 1990.

3. The following table shows the extent of enhancement of octroi duty: ‑‑‑ 1988 New Schedule effective Schedule from 1‑7‑1990 Cotton Lint 65 paisa 2 paisa per rupee per 40 K.G. Polyster 26 paisa per 2 paisa per rupee 40 K.G. Jute products 28 paisa per 2 paisa per rupee 40 K.G. According to the petitioners the increase is to the tune of from two thousand per cent. to twenty thousand per cent and it is cleverly camouflaged by changing the mode of charging from weight age basis to that of percentage basis.

4. Octroi contractors M/s. Abdullah & Co., were not originally impleaded in these petitions (except in Petition No.405/91 wherein they were originally impleaded as respondent No.3) and they later moved applications under Order I, Rule 10, C.P.C. which were granted by consent and they were impleaded as respondent No.4.

5. The grievance of the petitioners is that respondent No.3 Union Council advertised the proposed change in obscure newspapers with the result that they missed the news and came to know about the enhancement when the new schedule of rates was published in the Gazette of 9th April 1990. The further grievance of the petitioners is that the increase is so exhorbitant that it would lead to the closure of the mills and was also inconsistent with the provisions of `Sindh Union Councils (Imposition of Taxes) Rules, 1979. The petitioners therefore filed appeal under section 108 of Sindh Local Government Ordinance, 1979 before Additional Chief Secretary, Local Government Department, who was pleased to accept the same vide order, dated 30‑5‑1990 and set aside the new tariff as notified in the Gazette of 9th April, 1990. However, the Additional Chief Secretary vide order, dated 31‑3‑1991 Annexure `A' (the annexure numbers are given from C.P. No.403/91) accepted the review petition of respondent No.3 Union Council which was permitted to "charge octroi on percentage basis on item numbers (11), (100), (103), (105), (143) and (184)". On the basis of this order dated 31‑3‑1991 passed by the Additional Chief Secretary, Local Government Department, respondent No.3 Union Council sent letter No.UCD/125, dated 1‑4‑1991 to the petitioners intimating them of the success of their review application and also intimating them that octroi duty would be charged in accordance with the tariff published in the Gazette of 9th April, 1990. Now the grievance of the petitioners is that this review order, dated 31‑3‑1991 is not only bad on merits, it is also bad because it was passed without any notice to them and without affording them any opportunity of being heard. The petitioners therefore seek the following reliefs: ‑‑‑ (a) To declare the impugned order dated 31‑3‑1991 (Annexure `A') passed by respondent No.l, as illegal, without any lawful authority, void ab initio, and as having been passed in violation of section 108 of Sindh Local Government Ordinance, 1979, and to set aside the same. (b) To declare the impugned letter No.UCD/125 of 1991, dated 1‑4‑1991 (Annexure‑B/1) and Notification dated 9‑4‑1990 (Annexure `B/2') as illegal, void ab initio and without any lawful authority; and to set aside the same. (c) To declare the order, dated 30‑5‑1990 (Annexure `C'), passed by respondent No.l as genuine, legal, still holding the field and operative. (d) To set aside the impugned order, dated 31‑3‑1991 (Annexure A), Letter dated 1‑4‑1991 (Annexure `B/1') and Notification dated 9‑4‑1991 (Annexure `B/2') and to quash the same. (e) Any other relief which this hon'ble Court may deem fir and suitable in the interest of justice.

6. Mr. AA. Muhammadally, Additional Advocate‑General Sindh who was appearing for official respondents Nos. 1 and 2, sought adjournments on 14‑5‑1991, 20‑5‑1991, 27‑5‑1991 and 12‑6‑1991 for seeking instructions from respondents Nos.l and 2 did not eventually gave up as in spite of his repeated urgent telephonic and written requests, respondents Nos.l and 2 did not care to instruct their counsel. He was, however, present on 17‑6‑1991 and 18‑6‑1991 when the petitions were heard.

7. Union Council Dhabeji (respondent No.3 in all these petitions except Petition No.405/91 where it is respondent No.2) alone has filed counter affidavit of its Secretary Abdul Haque Vistro. In this counter affidavit application of District Councils (Export Tax) Rules, 1976 or of Octroi Rules, 1964 on respondent No.3 was denied and it was averred that the revision of octori tariff per Gazette of 9‑4‑1990 was in accordance with the provisions of Sindh Councils (Imposition of Taxes) Rules, 1979 and only these Rules were applicable in the present case. It was further stated that the District Council had considered the revision of tariff in its meeting of 25th January 1990 when a sub‑committee was formed to further consider the matter and requisite notice under rule 4(1) was published in newspapers but none from the petitioners or from the public attended the meeting of the sub‑committee held on 19‑3‑1990 to consider the revision of tariff when the sub‑committee prepared ii. report in favour of the proposed change and sub‑committee's report was approved by the District Council in its meeting of 26th March 1990 on the basis of which Notification was isused in Gazette of 9‑4‑1990. It is also stated that the petitions also suffered from laches.

8. Learned counsel of the parties have been heard.

9. The first point urged by learned counsel of the petitioners is that there is no review power with the Additional Chief Secretary or with the Government under the Local Government Ordinance. He took us through the entire Local Government Ordinance, 1979 wherein. no power of review was provided. Learned Additional Advocate‑General Sindh conceded that the Additional Chief Secretary had no, power of review and that the impugned order, dated 31‑3‑1991 Annexure `A', and the order of the District Council No.UCD/125, dated 1‑4‑1991 Annexure `B/1' which is based on Annexure `A', are both illegal and cannot be sustained. Learned counsel of District Council (respondent No.3) also tacitly conceded to this position but argued that there was no provision of appeal, either, under which All‑Pakistan Textile Mills Association could file appeal before the Government against the enhancement of octroi duty as notified in the Gazette of Government of Sindh, dated 9th April, 1990 (Annexure `B/2') and, therefore, the Order of Additional Chief Secretary dated 30‑5‑1990 (Annexure `C') was an order without jurisdiction and, therefore, nullity in the eyes of law because Government was not an Appellate power under section 108 of the Ordinance read with rule 3 of Sindh Councils (Appeal) Rules, 1982. Both these provisions of law are reproduced below: ‑‑ "

108. Any person aggrieved by an order passed under this Ordinance or the rules or by‑laws may appeal to such authority, in such manner and within such period as may be prescribed, and the order passed in appeal shall be final. 3(1) Government may appoint one or more Tribunals and if more than one Tribunal is appointed Government shall determine the local limits within which each such Tribunal shall exercise jurisdiction. (2) A Tribunal shall consist of a person who is or has been a District Judge." Learned counsel of respondent No.3 was of the view that instead of approaching the Additional Chief Secretary, M/s. All‑Pakistan Textile Mills Association should rather have approached Appellate Tribunal.

10. Before proceeding further, we would first resolve the question as to whether the Additional Chief Secretary, or the Government of Sindh, had any power to review an order passed by it or them. Learned counsel of respondents Nos.3 and 4 did not assert that such power of review was available under the Local Government Ordinance, 1979 and tacitly agreed with learned counsel of the petitioners that the Ordinance conferred no such powers over the Additional Chief Secretary but still argued that he could review the order because the order dated 30‑5‑1990 earlier passed, which was sought to be reviewed, was also passed without authority and was therefore, illegal and therefore could be reviewed. We have not the slightest hesitation in rejecting this argument outright. A wrong and illegal action cannot be remedied by another wrong and illegal action. Besides, there is a plethora of reported judgments to the effect that power of review cannot be assumed by such implications and it must be clearly conferred by law. One of the judgments on the point is Hussain Bux v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1 which lays down that right of review is a substantive right and is not a mere matter of procedure and it is not available unless it is specifically provided by the statute and conferred by law. Law on this point is so well settled that there is no need to refer to the string of other judgments on the point. We are therefore of the view that, notwithstanding the alleged illegality and jurisdictional defect in the order, dated 30‑5‑1990 (Annexure `C') passed by Additional Chief Secretary (to which we shall shortly revert), the impugned order, dated 31‑3‑1991(Annexure `A') passed by Additional Chief Secretary is illegal, bad in law, without jurisdiction and therefore liable to be set aside. As held in the case of Nawab Rounaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236, action of an authority, which acts beyond the sphere allotted to it by law, is a nullity and the superior Courts should refuse to perpetuate something patently unjust and unlawful.

11. Even if it were to be conceded for the sake of argument that the Additional Chief Secretary had power to review the order of his predecessor, we are of the view that the impugned order, dated 31‑3‑1991 is still bad in law and liable to be set aside because it is an unspeaking and arbitrary order, gives no reasons as to why the order, dated 30‑5‑1990 was being reviewed and what infirmity and illegality was discovered in that order and, more than anything else, it was passed at the back of the petitioners and without any notice to them. And on the point of notice, we were referred to the judgment in the case of Mst. Abida Begun! v. Government of Pakistan in which it is held that an order passed in exercise of suo motu revisional jurisdiction is void and illegal and liable to be set aside if passed without notice 'to an interested party which is adversely affected by such order. The relevant part of the order passed in review consists of just this one single sentence of four words "Review petition is allowed". For the sake of clarity the entire order is reproduced below: ‑‑‑ "Mr. Murad Brohi, Chairman Union Council, Dhabeji present and heard. He argued that orders passed by the ACS LD No.R/40/90, dated 30‑5‑1990 may be reviewed in the light of the resolution No.3, dated 26‑6‑1990 passed by the Council of Union Dhabeji. Review petition is allowed. Union Council Dhabcji can charge octroi on percentage basis on Item Nos. (11), (100), (103), (105), (143), (184)., In this regard we may refer with profit to the case of Syed Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore 1978 SCMR 367 in which their Lordships observed that a judgment cannot be reviewed merely because a different view could have been taken and that a review can lie only when the alleged error is so evident that it can be established without elaborate arguments. Here in this case, the order passed in review does not even refer to I any error in the order reviewed. It is a patently arbitrary order. Thus, even if the power of review were available to the Additional Chief Secretary‑‑and we have already held that he had no such power‑‑the impugned order can still not be sustained and must be set aside.

12. The next question which arises is as to whether the Additional Chief Secretary had power to entertain appeal perferred by M/s. All‑Pakistan Textile Mills Association and the order, dated 30‑5‑1990 (Annexure `C') does or does not suffer from jurisdictional defect and if it does so suffer, whether it is void and illegal and of no effect.

13. As we have noted above, Mr. Muhammad Sharif, learned counsel of District Council respondent No.3, is of the view that Government is not an Appellate Authority under section 108 of the Local Government Ordinance, 1979 and that the Appellate power is the Appellate Tribunal established under Rule 3 of Appeal Rules, 1982. Learned counsel is sadly mistaken in holding this view for the simple reason that Chairman District Council Dhabeji has passed no order which could be appealed against before the Appellate Tribunal. It is the District' Council which has enhanced the octroi duty and changed the mode of its levy and learned counsel of respondent No.3 could not show that even in such a case appeal lay to the Appellate Tribunal.

14. On the other hand, learned counsel of the petitioners on the strength of the powers conferred upon the Government under sections 53 and 62 of the Ordinance, argued that the Additional Chief Secretary had the powers to entertain appeal of M/s. All‑Pakistan Textile Mills Association and pass the order dated 30‑5‑1990. For better appreciation of these provisions of law, they are quoted below: ‑‑ "53.‑‑(1) Government shall exercise general supervision and control over the councils to ensure that their activities conform to the purposes and provisions of this Ordinance. , (2) Government may, at any time, call for any paper, document, register or record from any council to see that the activities of the council are. in conformity with the provisions of this Ordinance, and may make ally order it deems necessary to bring it in such conformity. (3) If, in the opinion of Government, anything done or intended to be done by or on behalf of a council is not in conformity with the law, Government may by order‑‑ (a) quash the proceedings; (b) suspend the execution of any resolution passed or order made by the council; (c) prohibit the doing of anything proposed to be done; and (d) require the council to take such action as may be specified (4) Where an order under subsection (2) or subsection (3) is made by Government; the council concerned may, within thirty days of the receipt of the order, represent against it in the prescribed manner, and the order made on such representation shall be final. 62.‑‑(1) Government may direct any council‑‑‑ (a) to levy any tax, rate, toll or fee which the council is competent to levy under this Ordinance; (b) to increase or reduce any rate, tax, toll or fee to such extent as may be specified; and (c) to suspend or abolish the levy of any tax, rate, toll or fee. (2) If the direction is issued under subsection (1), the Chief Executive of .the Council shall, notwithstanding anything contained in this Ordinance, give effect to it by issuing a notification in terms of the direction not later than the date, if any, specified by Government in this behalf. Section 53 refers to the Supervisory Powers of the Government and empowers it to call for any record from any council and take whatever remedial steps it deems necessary, as detailed in clauses (a), (b), (c) and (d) of section 53(3) and under section 62 the Government is empowered to direct a Council with regard to levy of taxes. Clause (b) of section 62(1) specifically empowers it to order a council to increase or reduce any rate, tax, toll or fee to any extent it deems fit or proper. We are satisfied that Secretary‑in‑change of Local Government Department (be he Secretary or Additional Chief Secretary) is competent to exercise these powers on behalf of the Government and, therefore, order dated 30‑5‑1990 Annexure `C' is a valid order and does not suffer from any jurisdictional defect.

15. Learned counsel of respondent No.3 made a reference to Article 139 of the Constitution of the country and to the Rules of Business and to the judgments reported as PLD 1960 Karachi 690 (Persumal v. Government of Pakistan) and 1986 CLC 54, (Muhammad Siddiq v. Hawabai) and argued that a Secretary to the Government could not act in the name of Government. Article 139 of the Constitution provides that all executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor and in our view any reference to Article 139 in the present context is uncalled for where an action is being taken, on the administrative side under the Local Government Ordinance. In PLD 196() Karachi 690 it was held that an order which is void ab initio cannot be quashed anymore than it can be upheld, because a thing which has never existed is not capable of destruction. In the second judgment 1986 CLC 54 it is held that High Court could not, under its Constitutional jurisdiction, come to the rescue of a person seeking High Court's stamp on or approval of an order or action which was patently unjust, being without jurisdiction and licence void ab initio. These judgments do not reflect on the question as to whether a Secretary can act for the Government or. not. Perhaps learned counsel of respondent No.3 wanted to make the point that the order, dated 30‑5‑1990 (Annexure, `C') being without jurisdiction and, therefore, illegal did not require to be set aside through review and, therefore, jurisdictional defect in review order Annexure `A' is immaterial because even if Annexure `A' is ignored, Annexure `C' is still void and illegal. We concede to this legal position but since we have already held that the Additional Chief Secretary was competent to pass the order, dated 30‑5‑1991 Annexure `C', these judgments are of no avail to respondent No.3.

16. It was next contended by learned counsel of respondent No.3 that even if it is conceded that Government had powers under 'section 53 read with section 62 of the Ordinance, then the council could make representation under section 53(4) and the impugned order must be deemed to have been passed under section 53(4) of the Ordinance. In our view this is a fallacious argument. A council may approach the Government under section 53(4) only when the Government takes action without notice to the council but here order dated 30‑5‑1990 (Annexure `C') was passed after respondent No.3 had filed comments giving its view‑point on the subject and after hearing its Chairman Mr. Muhammad Murad Brohi and, therefore, there was no further occasion for respondent No.3 to make any representation under section 53(4). Moreover, such representation could be filed with the Government within 30 days but here there is no indication that the representation (or review petition, as it is called in the impugned order) was preferred within 30 days of the order, dated 30‑5‑1990, notwithstanding the fact that Resolution No.3 was passed by respondent No.3 on 25‑6‑1990. As such, such representation being time‑barred, it could not be entertained by the Government. Besides, a representation under section 53(4) is incompetent against an order passed under section 62 of the Ordinance. This contention is, therefore, rejected as baseless.

17. Learned counsel of respondent No.3 had also argued that Municipal Committee Octori Rules, 1964 were no more applicable and point at issue was governed by the Sindh Councils (Imposition of Taxes) Rules, 1979. He could not, however, show how these latter Rules of 1979 were applicable and under which provision of these rules the impugned order of 31st March, 1991 could be sustained. He referred to Rule 7 but it was shown to the Court by learned counsel of the petitioners that this Rule 7 was held to be redundant by this Court in the judgment reported as PLD 1988 Karachi 38 at page

43. Eventually, learned counsel of respondent No.3 withdrew this objection.

18. Lastly we may refer to the objection raised by respondent No.3 in para.12 of its counter‑affidavit that the petitions suffer from laches. We find that the order in review was passed on 31‑3‑1991, the District Council had issued letter on 1‑4‑1991 intimating the appellants of the decision in review and these petitions were filed on various dates between 4‑4‑1991 and 10‑4‑1991. There is thus no merit in the objection raised on the ground of laches.

19. Learned counsel of respondent No.4 pointed out, first of all, that in C:P. No.405 of 1991 notification of 9‑4‑1990 is not challenged. Firstly, if it is challenged in the rest of the petitions it makes no difference if it is not challenged in C.P. No.405 of 1991. Secondly, it is factually incorrect to say that notification of 9‑4‑1990 is not challenged in C.P. No.405 of 1991. A perusal of C.P. No.405/91 rather shows that the only thing which is challenged by the petitioners in C.P. No.405 of 1991 is the notification of 9‑4‑1990. Para. 7 of memo. of petition states that the petitioners having come to know of the notification of 9‑4‑1990 filed an appeal against it on which order dated 31‑5‑1990 was passed whereby the said appeal was dismissed as having become infructuous (as the matter had already been decided to the satisfaction of the petitioners vide order, dated 30‑5‑1990 passed on the appeal filed by M/s. All Pakistan Textile Mills Associations). The petitioners support this order of 30‑5‑1990 and impugn the order, dated 31‑3‑1991 whereby the order, dated 30‑5‑1990 was set aside by way of review. This clearly means that the petitioners challenge the notification of 9‑4‑1990. The contention of learned counsel of respondent No.4 is repelled as being factually incorrect.

20. Learned counsel of respondent No.4 repeated the argument that review order was in respect of an illegal order and therefore a valid order and that appeal only lay to Appellate Tribunal constituted under Rule 3 of Appeal Rules, 1982 and therefore no appeal lay before the Government under section 53 of the Ordinance. We have already discussed these contentions in the earlier part of this judgment and need not again refer to them now. 21: Under the circumstances of the case it is not necessary for us to go into the merits of the order passed by Additional Chief Secretary on 30‑5‑1990 (Annexure `C'). It is a valid and lawful order and does not suffer from any jurisdictional defect and holds the field. Even so, we have gone through it and we are of the view that it is a well‑reasoned and rational order which was passed after notice to all concerned parties and which allows a very reasonable enhancement of octroi rates and very rightly sets aside the new mode of charging on percentage basis and brings back weight age basis. Even if this order were illegal or defective; we would have refrained from setting it aside under the Constitutional jurisdiction of this Court.

22. Summing up the above discussion we would hold as under; (a) The Government or the Additional Chief Secretary Local Government Department have no power of review under the Sindh Local Government Ordinance, 1979. (b) Even if it were to be assumed that the earlier order, dated 30‑5‑1990 was passed by the Additional Chief Secretary in excess of jurisdiction and was therefore illegal, even then the new Additional Chief Secretary, Local Government Department, could not assume the powers of review and set it aside. (c) Even if it were to be assumed that Government had power of review, it could not, in violation of all the norms of equity and justice, proceed to review the order, dated 30‑5‑1990 without notice to the petitioners and without giving them adequate opportunity of being heard and without giving any reason therefor. (d) The Additional Chief Secretary, acting on behalf of the Government had wide powers under sections 53 and 62 of the Ordinance and the order, dated 30‑5‑1990 was valid and in accordance with law. The Additional Chief Secretary had become functus officio after passing it and it could not be set aside by him. (e) No appeal lay before Appellate Tribunal, Local Councils, against the enhancement of octroi rate by the District Council.

23. Learned counsel of respondent No.3 argued that at the most the case nay be remanded to Additional Chief Secretary Local Government 3epartment to decide the matter afresh after allowing the petitioners an opportunity to appear and present their case before him. In our view there is justification for such an action because the Additional Chief Secretary has no jurisdiction to entertain review petition and also because the Additional Chief Secretary had heard all the concerned parties, including the petitioners and respondent No.3, before passing the order, dated 30‑5‑1990 which is, as we gave already observed earlier, a very well‑reasoned order and which has now Become final. We would, therefore, reject this suggestion.

24. We would, therefore, accept this Constitutional petition, declare the under, dated 31‑3‑1991 passed under review (Annexure `A') and the letter of he District Council, dated 1‑4‑1991 (Annexure `B‑1') as void and illegal and further declare the order of Additional Chief Secretary dated 30‑5‑1990 Annexure `C') as valid, legal, final and still holding the field. District Council K 3habeji respondent No.3 is directed to charge octroi in accordance with the enhancement allowed vide order, dated 30‑5‑1990 Annexure `C' and direct its agents/contractors accordingly. Since respondent No.3, through its contractor respondent No.4, had commenced charging at the rates notified in the Gazette of 9th April, 1990 with effect from 1‑4‑1991, respondent No.3 is directed to refund within one month of this order the excess amount recovered by it. Respondent No.3 shall also bear the costs of the petitions. A.A./A‑1107/K Petition accepted.