1982 PLP 74 (SCMR)

Date of hearing: 9th August, 1981. SHAFI‑UR‑REHMAN, J. The petitioners who are the owners of power looms in Gujranwala District seek leave to appeal against the judgment of the Lahore High Court dated 12‑5‑1979 whereby under constitutional petition against the imposition of licence fee on power looms and hand looms by the Commissioner, Lahore Division, was dismissed with costs.

2. By a notification appearing in the Punjab Gazette Extraordinary July, 1975, the Commissioner, Lahore Division in exercise of powers possessed by him under rule 7 of the Municipal Committee (Imposition of Taxes) Rules, 1960, enhanced and imposed licence fee, inter alia, on power looms and handlooms. The legal ground taken up by the learned counsel and vehemently pressed before us was that Punjab Local Government Act, 1975, hereinafter referred to as the Act was enforced throughout the Province on the 3rd of April, 1975, and sections 138 and 139 thereof the Local Council had the exclusive authority to impose such taxes and licence fee. The Commissioner who was the controlling authority under the Municipal Administration Ordinance was removed from the scene, was possessed of no power and could not deal with the matter at all after the repeal of the Municipal Administration Ordinance, 1960, and the rules invoked by him were repugnant to and in derogation of the taxing powers contained in sections 138 and 139 of the Act.

3. The learned Judge in the High Court took note of this submission and dealt with it by reference to section 235(2) of the Act which finds a place in Chapter XXV dealing with transitional provisions.

4. The learned counsel for the petitioners has contended that the intention of the Act was manifestly to establish representative institutions and to abolish the official intermediaries wherever existing. It was with that express purpose that the intermediary controlling authority was done away with and in its place either the Government was conferred plenary powers in affairs concerning Local Government or the Local Councils themselves. In this background the provisions of the Municipal Administration Ordinance or the Municipal Committee (Imposition of Taxes) Rules, 1960, could not be of avail to the Commissioner for imposing such tax. The learned counsel has however drawn support for this argument from the view taken by the Commissioner himself, who had in certain other such cases declined to exercise his authority and instead directed that the Local Council should itself exercise its authority under sections 138.and 139 of the Act.

5. The Chapter XXV of the Act under the Heading `Transitional Provisions' contains four sections. By, section 234, interim authorities and interim maintenance of institutions is provided, but for our purposes the important section is 235 which is reproduced hereunder. "Validation of certain orders, proceedings and Acts, and continuance of functions of certain authorities and officers.‑(1) 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 there under shall be deemed to have been validly made, taken or done. (2) Notwithstanding anything contained in this Act, all authorities and all Officers who immediately before the enforcement of this Act were exercising functions of Local Councils under the repealed enact ments or any other law shall continue to exercise their respective functions till the Local Council are constituted under this Act, provided Government may withdraw all or any of the functions from such authorities or Officers as it may deem necessary."

6. It is admitted as a fact that Local Councils were not constituted at the relevant time under this Act in Gujranwala nor had the Provincial Government withdrawn any of the functions from such authorities or Officers. The Local Council having not been constituted under the Act, sections 138 and 139 relied upon by the learned counsel for the petitioners did no come into play at all. The situation on' the ground on the relevant date was one fully provided for and envisaged in subsection (2) of section

235. If the Commissioner was possessed of the powers to impose/enhance such a tax under the Municipal Administration Ordinance read with Municipal Committee (Imposition of Taxes) Rules, 1960, that power remained unaffected till such time as any of the two reservations made in subsection (2) of section 235, came into play. It is not the case of the petitioner that the Commissioner could not have issued such a notification under the Municipal Administration Ordinance read with rules referred to above.

7. We find no merit in the petition and refuse leave to appeal. Petition dismissed.