1971 PLP 237 (SCMR)

SAJJAD AHMAD, J.‑This appeal, by special leave, arises out of the judgment and order of a Division Bench of the High Court (Lahore), dismissing in limine a writ petition filed by the appellant‑company to challenge the validity of a tax levied on it by the local District Council, Rawalpindi, on the quarrying, extraction and removal of stone at the rate of 00.50 Paisas per 100 cft., and, similarly, on the quarrying, extraction and removal of stone aggregate (bajri) at the rate of Re. 1.00 per 100 cft. The levy aforesaid by the District Council was sanctioned by the Governor of West Pakistan by a notification dated the 29th of November 1968, issued by him in the exercise of his powers under clause (1) of Article 60 of the Basic Democracies Order of 1959, and sub‑rule (2) of rule 7 of the West Pakistan Local Councils (Imposition of Taxes) Rules, 1961. The appel lant‑company was granted a mining lease by the Directorate of Mineral Development, Government of West Pakistan, over an area of about 195.45 acres near Wah Railway Station, in the District of Rawalpindi, for quarrying and extraction of lime stone, for which it was paying the rents and royalties due to the Government, under the Pakistan Mining Concession Rules. The appellant's contentions in the High Court were that the local Council had no authority to levy the impugned tax since it was a Central subject belonging to the Mineral Deve lopment Directorate under the Government of Pakistan, and, secondly, that as it was already paying rents and royalties to the Government, the levy of the impugned tax amounted to double taxation. The learned Judges of the Division Bench in the High Court have repelled both these contentions, holding that the imposition of the impugned tax fell within the sphere of the Provincial Government, and that even if the rents and royalties, which are being paid by the appellant, be termed as taxes, no legal prohibition was shown to stand in the way of double taxation. Before us, the learned counsel for the appellant has raised another argument, namely, that the tax could not be imposed by the executive authorities in the absence of law, authorising such a levy. It was submitted that the source of power of District Council to levy tax, with the sanction of the Govern ment, as provided by clause (1) of Article 60 of the Basic Democracies Order, is limited only to those taxes, which are mentioned in Fifth Schedule to that order, and that item 28 thereof, which alone is relevant for purposes of the tax in question, merely makes a provision for "any other tax which the Government is empowered to levy by law". It is pointed out that the West Pakistan Regulation of Mines and Mineral Development Act of 1958, which empowered the Provincial Government to impose such a tax, was repealed by Ordinance XXV of 1969, by the Governor of West Pakistan on the 16th of October 1969, with effect from the 21st of No vember 1969. It is argued that since no other law has been enacted to provide a cover for the impugned levy, the same is illegal. The learned Advocate‑General has brought to our notice that the existing law, which holds the field on this subject, is Act No. XXI V of 1948, namely, Regulation of Mines and Oil‑pins fields and Mineral Development (Government Control) Act of 1948, as adopted by President's Order No. 1 of 1964. Sub‑section (4) of section 2 of this Act lays down as follows :‑ "

3. It is hereby declared to be expedient in the public interest that the appropriate Government shall have power to make rules to provide for all or any of the following matters, namely :‑

4. The determination of the rates at which and the conditions subject to which, royalties, rents and taxes shall be paid by licenses, lessees and grantees of mining conces sions." Appropriate Government, as used in this provision, has been defined in section 6 of the Act to mean :‑

"In relation to mines of nuclear substances, oilfields and gas fields and development of such substances, mineral oil and gas, the Central Government, and, in relation to the other mines and mineral development, the Provincial Government." The Provincial Government is thus the appropriate Government to authorise imposition of the tax in question. Since the Act of 1948, mentioned above, as adopted by the President's Order No. 1 of 1964, was already in the field, the continuance of the West Pakistan Regulation of Mines and Mineral Deve lopment Act of 1958, on the same subject, being a superfluity, was repealed, As a valid law is in existence to provide a cover for the impugned tax, the notification issued by the Governor in this behalf, and the levy of the tax by the District Council in pursuance thereto, cannot be assailed as illegal and without lawful authority. The appeal fails, and is dismissed. As the existing law was traced not without a research by both sides during the hearing of this appeal, we leave the parties to bear their own costs. Appeal dismissed.