1976L135 (PLP)

By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973) the petitioners have challenged the impugned notification issued by the Commissioner, Sargodha Division on 14th July 1975 (published in the Punjab Gazette dated 13th August 1975), by which fee on the sale of cattle has been enhanced from Rs. 4 to Rs.

5. The petitioners are the lessees of Mandis at different places mentioned in Annexure 'A' of the writ petition, for a certain period.

2. The Scheme for levy of taxes is mentioned in Articles 60 to 66 of the Basic Democracies Order, 1959. Article 61 prescribes the manner in which these taxes have to be imposed. West Pakistan Local Councils (Imposition of Taxes) Rules, were framed in 1961, rule 3 of which deals with preliminary taxation proposals while rule 4 provides publication thereof. A public notice has to be issued and all objections and suggestions received from the inhabitants in pursuance thereof have to be entered in a register maintained for the purpose. By virtue of rule 7 the Commissioner or the Government, as the case may be. sanctions the proposal with or without modifications. The Basic Democracies Order has been repealed by Punjab Local Government Act, 1975. Section 235 of the new Act. which is the saving clause, provides that all orders made, proceedings taken and acts done by any authority or by any person which were made, taken or done, or purported to have been made, taken or done in exercise of the powers derived under any law or the repealed enactments, notifications, rules, orders or bye laws made thereunder shall be deemed to have been validly made, taken or done.

3. Learned counsel for respondent No. 1 has frankly conceded that h is unable to show from the file that the provisions of the rules mentioned above have been complied with for the publication of notice, which he has placed on record ac Annexure C‑3, issued by the Administrator on June 1975. Had the provisions of the Rules been complied with for the imposition of the tax there would have been no chance left for the petitioners to challenge the increase in the fee, but unfortunately that is the position.

4. Lastly learned counsel for respondent No. 1 referred to the notifica tion issued by the Commissioner, Sargodha Division, dated 27th May 19727 (Annexure C‑2) who confirmed the amendment, made by the District Council, Jhang in its Regulation regarding control and management of Cattle Fairs, under Article 92(2) of the said Order. Unfortunately section 235 of the Punjab Local Government Act, 1975 has not given any cover to the regulations framed by the District Council. This was the last argument of learned counsel for respondent No. 1 on which he could bank upon for the imposition of tax.

5. In view of the discussion above the notification issued by the Com missioner is not an exercise of lawful authority and has to be struck down. The writ petition is accepted. The petitioners shall also be entitled to costs Petition accepted.