1988 PLP 1457 (CLC)

Riaz Ahmed for Respondents. Date of hearing: 21st April, 1987. SAEED‑UZ‑ZAMAN SIDDIQUI, J.‑‑The petitioners, who are the land owners and Khatedars of Deh Dago Sandi, Taluka Matli, District Badin, have challenged the decision of District Zakat Committee made under Rule 5 of the Sind Ushr (Assessment and Collection) Rules, 1983, fixing the low average yield per acre and low average farm gate prices of different crops of Taluka Matli for Kharif season for the year 1984‑

85. They have also challenged the demand and recovery proceedings initiated by respondent No.2 against them for recovery of 'Ushr' on the basis of above fixations made by the District Committee. Learned counsel for the petitioners contends that the demand for recovery of 'Ushr' made by respondent No.2 on the basis of assessment fixed by respondent No.l is contrary to tt a provisions of Zakat and Ushr Ordinance, 1980, and Sind Ushr (Assessment and Collection) Rules, 1983. (For the sake of convenience we will hereinafter refer the above Ordinance and the Rules as 'the Ordinance' and 'the Rules' only respectively). It is urged by the learned counsel that under section 6 of the Ordinance the only authority competent to assess the 'Ushr' payable by the petitioners is the Local Committee of tf a area and as such the assessment made by the District Committee under Rule 5 of the Rules is not relevant. It is accordingly contended that the demand for recovery of 'Ushr' made by respondent No.2 on the basis of the assessment of respondent No.l is wholly without jurisdiction. In order to appreciate the contention of the learned counsel for the petitioners, it is necessary to examine here in some detail the relevant part of section 6 of the Ordinance as well as the rules relevant in this regard. Relevant part of section 6 of the Ordinance relied by the learned counsel for the petitioners reads as under:‑ "

6. Mode of assessment and collection of Ushr.‑‑ (1) A Local Committee shall be supplied by the revenue department, and such other department or official agency or any other person as may be determined by the Chief Administrator, in respect of a land‑owner, grantee, allottee, lessee, lease‑holder or land‑holder in the locality, in the prescribed form and manner, with the record containing such information for a crop season as may be required for the purposes of this Ordinance. An assessee may compute his Ushr liability on self‑assessment basis and communicate the same to the Local Committee in such form and manner as ay be prescribed and, while so computing his Ushr liability, shall be entitled to reduce, to allow for possible over‑estimation in assessment one‑third of the Ushr due in the case of produce from land irrigated by tube‑well and one‑fourth of the Ushr due in other cases. (3)If the Local Committee finds that an assessee's self‑assessment of his Ushr liability is acceptable, it shall notify it to the assessee as the Ushr demand of that assessee. (4) Where an assessee fails to communicate to the Local Committee his self‑assessment of Ushr liability under subsection (1), or a Local Committee does not find the self‑assessment of the Ushr liability by an assessee acceptable under subsection (3), the Local Committee shall subject to such guidelines and instructions as may be given by the Provincial Council or, if so authorised by the Provincial Council, by the District Committee, after taking into consideration the information furnished to it under subsection (1) and any other information that it may deem relevant, adopting such procedure as it may deem fit, and allowing the reduction provided for in subsection (2), make in the prescribed form and manner,, its own assessment of Ushr realizable on compulsory basis under this Ordinance and notify the demand to the assessee." (5) (6) A careful examination of the above provisions of the Ordinance will show that while the responsibility for individual assessment of 'Ushr' payable by an assessee is the responsibility of the Local Committee, such assessment is to be made on the basis of information received from the authorities mentioned in subsection (1) of section 6 of the Ordinance by the Local Committee and after giving due allowance for the eventualities mentioned in subsection (2) of section 6 ibid. It is also clearly provided in subsection (4) of section 6 ibid that the above assessment of 'Ushr' in individual cases by the Local Committee will be subject to guidelines and instructions of Provincial Council or of the District Committee if so authorised by the Provincial Council. Section 26 of the Ordinance has authorised the Central Council to frame rules for the purposes of carrying out the purposes of the Act. In exercise of its rule making powers the Central Council for the Province of Sind has framed and enforced Sind Ushr (Assessment and Collection) Rules, 1983, which amongst others provide for determination of 'Low Average Yield' per acre' and Low Average Farm Gate Prices of crops in an 'Ushr' circle. The District Committee of an area under Rule 5 of the Rules is authorised to determine the average yield per acre and average farm gate prices of each crop, keeping it on the low side, which are known as 'Low Average Yield' and 'Low Average Farm Gate Prices' of such crops respectively. The determination of above 'Low Average Yield' and 'Low Average Farm Gate Prices' of each crop by the District Committee is to be made in consultation with the Deputy Commissioner concerned, and the District Committee in that process may also make visual inspection or make use of knowledge or information of its members, results of crop cutting experiments, information furnished by or collected from the Agriculture, Revenue or Irrigation Department or any other official or non‑official agency, market prices of crops collected from any official or non‑official agency and any other information or manner which may be considered fair and appropriate by the District Committee. Rule 6 of 'the Rules' provides that after the average mentioned in subsection (1) of section 5 ibid is determined by the District Committees, it shall communicate the same to Local Committee through Assistant Commissioner concerned. Rule 7 provides for filing of self‑assessment of an assessee with the Local Committee while Rule 8 provides for collection of data and information by the Local Committee for the purposes of making a fair assessment of 'Ushr'. Rules 9 to 12 of the Rules refer to various forms to be maintained by the Local Committees for assessment and entry of demand of 'Ushr'. Rule 9 of the Rules provides that within one month of the receipt of low average yield and low average farm gate prices from the District Committee, the Local Committee shall prepare for each locality a statement in the register in Form Ushr III incorporating various information collected by it from different sources. These particulars collected by the Local Committee are to be shown in columns 3 and 4 of the register against the relevant crops and year on the page earmarked for each assessee. After that, the Local Committee shall indicate in column 5 of the register the assessment of 'Ushr' approved by it either on the basis of self‑assessment of the assessee approved by the Local Committee or on the basis of the information collected, which is shown in columns 3 and 4 of the register. The Local Committee shall also state briefly its reason in the case the assessment is made on the basis of the information collected by it. This whole exercise is to be completed by the Local Committee within two months after the valuation date. Rule 11 provides that, on the 'Ushr' assessment date, the Local Committee shall publicise in the locality through a notice or announcement in the mosques in the locality, through beat of drum or through such other means as it may deem fit, that the assessment of 'Ushr' has been approved by the Local Committee and that it may be seen in the office of the Local Zakat Committee. After following the above procedure, the Local Committee under Rule 12 is required to prepare, if necessary, with the assistance of the Local Revenue Official, the register in Form Ushr IV. In columns 1 to 3 of the said register, the 'Ushr' demand statement is to be shown separately for each local revenue official if 'Ushr' is decided to be collected through Local Revenue Officials and for each agent if it is decided to be collecte.l through agents and those demand statements will then be distributed either to the Local Revenue Officials or to the agents within ten days after the 'Ushr' assessment is made, as the case may be. The Local Committee is also required to affix one copy of the 'Ushr' demand statement at a prominent place in the locality and keep a copy of the same for its record. Rule 13 of the rules provides for the manner of collection of 'Ushr' so assessed by the Local Committee through local Revenue Officials or agents to‑be appointed by the District Committee on a reference by the concerned Local Committee. From the examination of the above stated rules, it is quite clear that the low average yield and low average farm gate prices determined by the District Committee and communicated to the Local Committee are to serve as a guideline for the Local Committee while making assessment of the 'Ushr' in individual cases. In the light of the above stated legal position, we will now examine the contention of the learned counsel for the petitioner that the decision of the District Committee, Annexure '8' to the petition, is without lawful authority. We have carefully gone through the English translation of Annexure 'B' filed alongwith the petition, and we find that the decision of the District Committee contained in the above annexure relates to the fixation of low average produce and low average farm gate prices of different crops cultivated in Taluka Matli, District Badin, during Kharif season for the year 1984‑

85. The above decision of the District Committee, in our view, is fully authorised under Rule 5 of the Rules and, as such, no exception could be taken to its validity. However, the learned counsel for the petitioners has made a further grievance in this petition that the recovery proceedings started by respondent No.2 on the basis of the fixation of low average yield and low average farm gate prices of the different crops is wholly without jurisdiction. This contention of the learned counsel appears to be correct. We have already pointed out while examining the relevant rules applicable for the assessment of 'Ushr' by the Local Committee that after receipt of the decision of the District Committee fixing the low average yield and low average farm gate prices of different crops, the Local Committee has to proceed to determine the 'Ushr' payable by individual on the basis of various information, which may be collected by it under Rules 7 and 8 after the receipt of the decision of the District Committee fixing the low average yield and low average farm gate prices. It is also clear from the examination of the relevant rules that, after the assessment has been made by the Local Committee and its entry in the relevant register, it is only then that its recovery is to be effected either through the revenue authorities or through the agents to be appointed by the District Committee on the reference of the Local Committee. It is not disputed by the learned counsel for the respondent that, in the present case, the Local Committee concerned has not yet assessed the 'Ushr' payable by the petitioners in accordance with the rules. In fact, it is an admitted position that the Local Committee was not even aware of the decision of the District Committee with regard to the fixation of low average yield and low average farm gate prices of different crops until the petitioner filed an application before the Local Committee concerned complaining of fixation of low average yield, at a higher level by the District Committee. It is only after such a complaint was made by the petitioner to the Local Committee that it met on 24‑2‑1985, but instead of adopting the decision of the District Committee fixing. the low average yield and low average farm gate prices of the different crops as basis for assessing the individual 'Ushr' payable by the petitioner, it held that the fixation of low average yield and low average farm gate prices by the District Committee was not legal and binding on them. It is precisely for this reason that the Local Committee has not so far carried out the assessment of 'Ushr' payable by the petitioner. We may, however, state here that the decision of the Local Committee that the fixation of low average yield and low average farm gate prices by the District Committee is not legal is wholly without jurisdiction, as the Local Committee cannot sit over such a decision arrived at by the District Committee under Rule 5 of the Rules. In fact, we have alreadx pointed out that under Rules 9 to 12, the Local Committee while fixing the assessment of 'Ushr' payable by each assessee, is bound to take into consideration the decision regarding fixation of low average yield and low average farm gate prices of different crops made by District Committee. From the abov discussion, it is quite clear that the demand and recovery proceedings of the 'Ushr' initiated by respondent No.2 is wholly without jurisdiction, as admittedly no assessment of 'Ushr' has been made by the Local Committee so far as required under section 6(4) of the Ordinance. `We accordingly partly allow this petition and declare the action of respondent No.2 in demanding and threatening the recovery of 'Ushr' from the petitioner as without lawful authority and without legal effect. The Local Committee of the area may proceed in accordance with the law on the basis of the decision of the District Committee fixing the low average yield and low average farm gate prices of the crop, to assess the 'Ushr' payable by the petitioners individually for the year 1984‑85 (Kharif crop). After we dictated the above judgment, Mr. Muhammad Ashraf Leghari, learned counsel for the petitioners, made a statement before us that the petitioners have already deposited a sum of Rs.5,000 in Court, while applying for stay of the recovery of 'Ushr' against them. This amount will be available for adjustment against the 'Ushr' which may be determined by the Local Committee as payable by the petitioners. It is further clarified that if after the assessment of the individual 'Ushr' payable by the petitioners, it is found that the amount deposited by them in this Court was in excess of that demand, the same may be refunded to the petitioners. There will be no order as to costs H.B.T./A‑314/K Order accordingly.