1992 PLP 1176 (CLC)

Ch. Sultan Mansoor for Respondent No.1. Nemo for Respondents Nos. 2 and

3. Date of hearing: 23rd February, 1992. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the levy and collection of export tax on lime stone and stone brought from Rawalpindi District to its factory in Abbotabad District and that the act of the respondents be declared without lawful authority and ineffective.

2. The learned counsel for the petitioner has raised the following contentions:‑‑ (i) that respondent No.2 which has imposed the export tax for all Zila Councils in the Punjab including respondent No.1 vide Notification No. SOV. 5.26/89 dated 24‑4‑1990 has no authority under sections 137, 138 and 139 of the Punjab Local Government Ordinance, 1979 to levy the tax; (ii) that no tax can be levied on the petitioners in view of Article 165 of the Constitution of Islamic Republic of Pakistan, 1973; (iii) that the procedure prescribed by the Punjab Local Council (Taxation) Rules, 1980 for levying the tax has not been followed as neither any objections were invited nor any sub‑committee constituted for the purpose of disposal of the said objections.

3. Mr. Sultan Mansoor, Advocate appearing on behalf of the Zila Council states that originally the tax was levied by the Government vide Notification dated 24‑4‑1990 but later on, a direction was received from the Government vide its Memorandum dated 13‑11‑1990 to impose tax which now stands levied by the Zila Council under Notification dated 1‑10‑1990. He admits that the procedure prescribed by the Punjab Local Council (Taxation) Rules, 1980 was not followed but according to him it was not necessary to do so as the Government of Punjab had waived the previous publication of notification on imposition of the tax under section 138 of the Punjab Local Council Ordinance, 1979.

4. It emerges from the above that it is common ground between the parties that the procedure prescribed for levying taxes by the Punjab Local Council (Taxation) Rules, 1980, has not been followed in the present case. Section 137 of the Punjab Local Government Ordinance, 1979, provides that a Zila Council subject to the provisions of any other law, may and, if directed by' Government, shall levy all or any of the taxes specified in the Second Schedule. Section 144 states that all taxes and other charges levied by local council shall be imposed, assessed, leased, compounded administered and regulated in such manner as may be provided by rules. It is in the exercise of the powers conferred by this provision read with section 167 that the Punjab Local Council (Taxation) Rules, 1980, have been framed. There is nothing in the statute or the rules empowering the Provincial Government to waive compliance of the procedure prescribed by the said Rules. In Glaxo Laboratories (Pakistan) Limited v. Union Council Dulu Khurd (1991 C L C 354) and Rauf Trading Company Limited v. Faisalabad Municipal Corporation through Mayor and another (19`90 CLC 1732), it was held by this Court that the provisions of the Punjab Local Council (Taxation) Rules, 1980, are mandatory and any non‑compliance thereof would render the levy of tax to be void.

5. Under rule 4 of the Punjab Local Council (Taxation) Rules, 1980, a local council is required to publish the preliminary taxation proposals and a public notice thereof has to be issued specifying inter alia the main features of the taxation proposal; the class of persons or description of property or both affected thereby; and the amount or rate of tax to be imposed, increased, reduced or modified. Alongwith the public notice, the taxation programme inviting objections to the proposals within 30 days and also prescribing a date of hearing for the objections, has to be notified. The Local Council is required to appoint a sub‑ 1113 committee for hearing of the objections wlicreafter the report is to be submitted to the local council. Rule 5 prescribes the manner in which the objections are to be heard and the procedure to be followed. Rule 6 requires the Chairman to consider report of the sub‑committee which is to be placed before a special meeting of the Local Council convened for the purposes of consideration of the report. It is only thereafter that the taxation proposal is considered to have been sanctioned if the majority of the members approve the same. These provisions are designed towards obviating any possibility of. unjustified taxation, which are for public good and their'] importance cannot be whittled down or belittled.

6. Reliance of the learned counsel for the respondent on subsection (1) of section 138 is misplaced. This subsection merely authorises the Provincial Government to waive the previous publication of the taxes levied by the Local Council which otherwise must be notified. This provision however does not concern itself with the manner in which the tax is to be levied, imposed or assessed which subject is dealt with by the Punjab Local Council (Taxation) Rules, 1980, framed under section 144 of the Ordinance. In view of what has been said above, this petition is allowed. No order as to costs. AA./M‑246/L Petition allowed.