P L D 1969 Karachi 242 (PLP)

Khalid M. Ishaque with A. Rauf for Appellant. Tahir Hussain for Respondent. Dates of hearing: 29th, 30th November 1967 and 22nd January 1968. This second appeal is directed against the order dated 15‑2‑1966, by which Mr. G. H. Ansari, Additional District Judge, Karachi, reversed the order of Mr. Shamsul Arfin A. Qureshi, Civil Judge, Karachi in the appellant's suit No. 3078 of 1961. The material facts may be briefly stated as follows:

2. The Karachi Municipal Committee is owner of a market, known as Shahabuddin Market, which is situated near Empress Market, Saddar, Karachi. The stalls in this market are let out or given on licence by the Committee to various persons, the appellant being one of them. The stall of the appellant was given to him originally at a fee of Rs. 5, but by a resolution passed by the Municipal Commissioner on 21st July 1960, the fee was increased to Rs. 20 p. m. This increase was challenged by the appellant in the aforesaid civil suit, in which this increase was declared invalid. The judgment of the Civil Judge, however, was set aside in appeal by the lower appellate Court as stated above.

3. The decision of the learned Additional District Judge, and the increase in the amount of fee by the Municipal Com missioner's resolution dated 21st July 1960, have been questioned on several grounds. The main question which, in my opinion, should also be treated as a preliminary point, is whether the Municipal Commissioner was at all competent to pass the resolution which he did on 21st July 1960, increasing the fee of the stall from Rs. 5 to Rs. 20 p. m. In this connection, a few relevant facts may be taken notice of. Previously, the city of Karachi had a Municipal Corporation constituted under the City of Karachi Municipal Act, 1933. On the promulgation of the Martial Law in the country, the Corporation was dissolved by the order of the Deputy Chief Martial Law Administrator dated 13th October 1958: Mr. Azizullah Hassan, C. S. P., was appointed as Municipal Commissioner to carry out the functions of the Karachi Municipal Corporation. It is the agreed position between the parties that this order was made under section 280 of the City of Karachi Municipal Act, 1933, under which the appropriate Government was empowered, in case the Corporation, was dissolved, to appoint a Municipal Commissioner to perform the functions, powers and duties of the Corporation. In 1960, the President of Pakistan promulgated an Ordinance, called the Municipal Administration Ordinance, 1960 (X of 1960). Section 4(1) of this Ordinance provides that on the coming into force of the Ordinance in any area, the enactments mentioned in the First Schedule thereto shall stand repealed. One of these enactments was the City of Karachi Municipal Act, 1933. The Ordinance was promulgated on 11th April 1960 and its actual extension to the city of Karachi took place on 16th April 1960. Thus, the City of Karachi Municipal Act, 1933; under which appropriate Government had appointed the Municipal Commis sioner in 1958, stood repealed as from this date. Section 4(2) of the Ordinance provided that where an enactment stood repealed under sub section (1), any appointment, rule, regulation, or bye‑law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and the rules, be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under the said Ordinance.

4. The case of Mr. Tahir Hussain, the learned counsel for the Karachi Municipal Committee, is that the appointment of the Municipal Commissioner made in 1958 was saved by this provision and, accordingly, the Municipal Commissioner was competent to pass the resolution in question on 21st July 1960. But this contention ignores another material section of the Ordinance, viz. section 128 under which, in any area in which the provisions of the said Ordinance are enforced but a Municipal Committee is not constituted, the government may by order empower any person or persons to perform all or any of the functions of such body or bodies as had jurisdiction therein immediately before such enforcement, as may be specified in such order. Even if it be assumed that the appoint ment of the Municipal Commissioner was saved under section 4(2) of the Ordinance, it was still necessary that for the interim period the government should have made orders empower ing the Municipal Commissioner, or any other person or persons, to carry out and perform the functions, powers and duties of the Municipal Committee. On the extension of the Ordinance, to the City of Karachi, the Act of 1933, including its section 208, which conferred the power for appointment of Municipal Commissioner, stood repealed. Though actually this appointment may have been saved under , section 4(2) of the Ordinance, a further step, by way of an order under section 128, was necessary to enable the Municipal Com missioner to continue to perform the functions of the Municipal Committee under the Ordinance. Admittedly, no such order was made, and in the absence of such order the Municipal Commissioner was not competent to pass the impugned resolu tion to increase the fee of the appellant's stall.

5. The proposition that the appointment of the Municipal Commissioner is saved by section 4(2) of the Ordinance is also open to doubt. This provision is in the nature of a saving clause, but its application is subject to the condition that the appointment made or acts done etc. etc., under the repealed 1 enactment, should not be inconsistent with the provisions of the Municipal Administration Ordinance, 1960. The Municipal Commissioner was appointed in 1958 under section 280 of the City of Karachi Municipal Act, 1933. No like provision has been shown to exist in the Ordinance. Section 112 does contain provision for supersession of a Municipal Committee, and in subsection (2) thereof it is provided that on such supersession the functions of the Municipal Committee shall be performed by such person or authority as the Government may appoint in this regard. But the Government is not required, under the Ordinance, to appoint a Municipal Commissioner. It may designate or authorise any person, that is, a Deputy Commissioner or Additional District Magistrate, or Additional City Magistrate, or any other authority, to perform the functions and duties of the Karachi Municipal Committee when it is superseded. There is no obligation for the appointment of a person as Municipal Commissioner as existed under section 280 of the Act of 1933. However, the question whether the appointment of the Municipal Commissioner was saved at all by section 4(2) of the Ordinance is not material for the purpose of deciding this appeal. I am clear in my mind that even if it is assumed that the appointment of the Municipal Commissioner was saved, a further order had to be made under section 128 of the Ordinance to enable the Municipal Commissioner to carry out the functions, powers and duties of the Municipal Committee, to the extent as may have been specified in this order. Since no such order is in existence, I am compelled to take the views that the resolution which the Municipal Commissioner passed on 21st July 1960 increasing the fee of the appellant's stall was made without lawful authority. No effect can be given to this resolution, and therefore the respondent is not competent to demand increased fee for the stalls in the Shahbuddin Market. In view of this conclusion, the judgment of the Additional District Judge is set aside and the order and the decree of the Civil Judge are restored. The parties are left to bear their own costs. A. E. Appeal accepted.