1980 PLP 263 (SCMR)

DORAB PATEL, J.‑The Union Council Balochabad of Mirpurkhas Taluka District Tharparkar, issued a notice on 20‑8‑1979 under rule 4 of the West Pakistan Local Councils (Imposition of Taxes) Rules, 1961, (hereinafter called the said Rules), for the levy of an Octroi tax. A sub‑Committee of the Union Council was formed to hear objections and make suggestions on the proposed Octroi duty and the sub‑Committee unanimously approved of the proposed levy of Octroi duty. Therefore, the local Deputy Commissioner approved of the revised budget which contained the proposed Octroi duty. Finally, on 18‑10‑1979, he issued a notification under the said Rules imposing Octroi tax on the respondent which is a sugar mill. The respondent filed a writ petition in the Sind High Court in which it challenged the petitioner's authority to levy Octroi duty. The writ petition was opposed by the petitioner before us and for the purpose of this petition it is sufficient to state that the respondent pressed the writ petition on grounds which did not find favour with the learned Judges of the High Court, who had heard this writ petition. However, the learned Judges of the High Court allowed the writ petition on the ground that the Octroi sought to be levied by the respondent was hit by subsection (1) of section 60 of the Sind Local Government Ordinance, 1979 (hereinafter called the said Ordinance). Now, as the writ was allowed on a ground not taken by the respondent, who had filed the writ petition, the petitioner filed a review application which was argued in person by the Administrator of the petitioner. This review petition was dismissed, because the mere fact that the writ had been allowed on a ground not sought by the person, who had filed a writ petition did not amount to a n error within the meaning of Order XLVII, rule 1 of the Civil Procedure Code. Therefore, the petitioner filed a petition for leave in this Court. both against the judgment of the High Court allowing the respondent's writ petition and the order of the High Court dismissing its review application. The petitioner was not able to engage counsel for the purpose of pressing its petition, therefore, its Administrator appeared in person before us to argue the petition. The conduct of the Administrator in this taking up the matter on behalf of his Union Council is commendable, but as he was a layman, we gave notice to the Advocate‑General of Sind to assist us on the question whether the learned Judges of the High Court were justified in allowing the respondent's writ petition. The learned Advocate‑General appeared before us and as he supported the view taken by the learned Judges in the judgment under appeal, we would set out here the relevant part of section 60 of the said Ordinance :‑ "(1) Subject to subsection (2) a council may, with the previous sanction of Government .levy, in the prescribed manner, all or any of the taxes, rates, tolls and fees mentioned in Sched. V." There is no ambiguity about this provision and the only question was whether the learned Judges of the High Court were right in holding that the Octroi tax had been levied without the Government's consent. And the learned Advocate‑General stated that the levy of the Octroi was illegal, because this consent had not been obtained. We, therefore, see no error in the judgment under appeal and as we, indicated there was no ground for a review, because the fact that the judgment was pronounced on a point not argued before the learned Judges did not amount to an error apparent on the record within the meaning of Order XLVII, rule 1 of the Civil Procedure Code. However, Mr. Ibrahim Khan, submitted that the levy of Octroi was lawful, because the proposal for the levy of Octroi was included in the budget which had been approved by the Deputy Commissioner. We do not doubt Mr. Ibrahim Khan's statement that the budget had been approved as claimed by him but the question was whether the Deputy Commissioner's approval could validate the levy of a tax which fell under section 60 of the said Ordinance. And, on the plain language of the section, it is clear that the Deputy Commissioner was not the authority competent to sanction an tax proposed by a Union Council. Mr. Ibrahim Khan then referred us to the rules framed under Basi Democracies Order and to the Sind People's Local Government Ordinance a of 1972 and further submitted that the Deputy Commissioner was the delegatee of the Commissioner and therefore on a proper construction of the relevant rules the petitioner was competent to levy Octroi. And, when we referred him to section 60 of the said Ordinance, he submitted that the rules framed under the earlier statutes including the Basic Democracies Order have been saved first by section 4 of the Sind Peoples Local Government Ordinance, 1972 and then by section 120 of the said Ordinance. These sections no doubt contain saving provisions about the rules framed under the repealed statutes. But, these sections expressly prescribe that rules made under any of the provisions o: the repealed enactment would be saved only if they were not inconsistent with the repealing Ordinance. Now, the Basic Democracies Order was repealed by the Sind Peoples Local Government Ordinance, 1972 and this Ordinance in turn was repealed by the said Ordinance. And, as section 60 of the said Ordinance contains an express provision that tax proposals by a Union Council can only be levied "with the previous sanction of Government", it is clear that the rues on which Mr. Ibrahim Khan relies, are no longer in force, because they are inconsistent with the express provisions of section

60. We, therefore, agree with the view taken in the judgment under appeal and this petition is dismissed. Petition dismissed.