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Writ Petition No. 841 of 1979, decided 21st January, 1980.

- Arts. 93, 60 & 93--Notification No. BD1/1-13/69, dated 2nd October 1969 item 14 and West Pakistan Local Councils (Imposition of Taxes) Rules, 1961, r. 7-Delegation of powers-Power available to an authority under certain enactment to make bye-law or issue notification -- Wrong or inaccurate indication of source of such power-Held, does not invalidate bye-law or notification-Delega tion having been made under Art. 93 of Basic Democracies Order, 1959 wrong mention of r. 8 in item 14 of notification does not invalidate entire notification,-[Delegation of powers].

---- S. 4 (1) & (2), Basic Democracies Order [18 of 1959] Notification No. BDI/1-13/69, dated 2nd October, 1969-Dele gation of powers-Repeal of Basic Democracies Order by S. 4(1) of Ordinance III of 1972-Does not affect notification issued under Basic Democracies Order and saved by S. 4(2) of Ordinance= Notification while Ordinance 1972 holding field, held, remained operative and empowered Commissioner to accord sanction.-[Dele gation of powers].

S. 5 and N.-W. F. P. Local Government Ordinance (IV of 1979) read with West Pakistan General Clauses Act (VI of 1956), S. 23 Notification No. BDI/1-13/69, dated 2nd October, 1969 issued under B. D. O., 1959-Notification dated 2nd October, 1969-Not inconsistent with either of two Ordinances and being not super seded by any other notification, continued to hold field, by virtue of S. 23 of Act VI of 1956 even if saving clauses did not exist in said Ordinance-Notification delegating power to Commissioner for according previous sanction to levy taxes in case of District Council, Commissioner, held, cannot be said to have= no power or jurisdiction to accord sanction.

--- S. 188 and Notification dated 21st August, 1979 issued under N.-W.F.P. People's Local Government Ordinance (lII of 1972), so long as Local Councils under 1979 Ordinance not constituted all authorities exercising power, under 1972 Ordinance continued to perform their powers-Power exercised by Commissioner in issuing notification falling within saving clause of S. 188 of Ordinance IV of 1979 no exception, held, can be taken thereto.

Q. Muhammad Anwar for Petitioner.

Inayat Elahi Khan, A.-G. for Respondents.

Date of hearing : 15th January, 1980.

In this petition under Article 199 of the Constitution, the petitioner Messrs Bibojee Services Limited has challenged the validity and vires of Notification No. 2428/XXI-D-345/LFA, dated 21st August, 1979, issued by the Commissioner of D . I. Khan Division sanctioning taxes on export inter alia on wool of each kind, woollen blankets and warms cloth as proposed by the District Council, Bannu. In order to appreciate the factual and legal position of the objections taken to the impugned Notification it is desireable to reproduce the same ,as a whole. It reads as follows

Notification No. 2428/XXI-D-245 ;LFA, dated 21st August, 1979.-In exercise of the powers conferred by section 51 subsection (2) and section 52 of the N.W.F.P. Local Government Ordinance 1972 read with rule 8 of the West Pakistan Local Councils (Imposition of Taxes) Rules, 1961 and under the powers delegated to me vide item No. 14 of the defunct Govern ment of West Pakistan in the Basic Democracies Department No. B. D. 1/1-13/69, dated 2nd October, 1969, 1, Wazirzada Abdul Qayyum Khan, Commissioner D. 1. Khan Division, D. 1. Khan do hereby sanction and add to the following proposed tax on the export of Materials/goods given in the schedule below by the District Council Bannu in the rural areas subject to the jurisdiction with immediate effect :-

S. No. Description of Taxes Rate of Tax

1. Grain of each kind. Paisas 50 pen' std. maund.

2. Atta of each kind. -do

3. Vegetable and fruit fresh Rupees two per std. maund.

and dried.,

4. Stone. Rupees ten per hundred.

5. Burnt Bricks. Rupees ten per thousand. .

6. Wool of each kind. Rupees five per std. maund.

7. Woollen blankets. Rupees two per blanket.

8. Warm cloth.' Paises fifty per yard.

9. Cotton yarn. Paises fifty per std. maund.

10. Fowl. Paises five per fowl.

2. The petitioner is a public limited company which manufactures woollen yarn blankets and warms clothes. The impugned Notification has the effect of subjecting their manufactured goods to the taxes levied by the District. Council as sanctioned by the Commissioner and conse quently they being aggrieved by the order have invoked the extraordinary jurisdiction of this Court with a view to restraining the Government of N.-W.F.P. (respondent No. 1) the Commissioner D. 1. Khan Division (respondent No. 2), the Deputy Commissioner, Bannu (respondent No. 3), and the Administrator District Council, Bannu (respondent No. 4),- from recovering taxes under the authority of the said Notification and also seeks a declaration that the Notification is illegal, unlawful, void and ineffective having been passed without lawful authority and jurisdiction.

3. Counsel for the petitioner Qazi Mohammad Anwar has taken two fold objections to the impugned Notification. First it is contended that the- Notification is dated 21st August, 1979, and purports to have been issued in exercise of the powers under subsection (2); of section 51, and section 52, of the N. W. F. P. Local Government Ordinance, 1972 (hereinafter referred to as the 1972 Ordinance) which on the said date had ceased to have effect having been repealed by subsection (1) of section 4, of the N. W. F. P. Province Local Government Ordinance, 1979 (hereinafter referred to as the 1979 Ordinance), and secondly that sections 51 and 52 of the 1972 Ordinance require the previous sanction of the provincial Government for the levy of taxes, rates, toll and fees in the case of a District Council and that the Commissioner had no authority to usurp the power of that Government and to sanction the taxes etc : himself as has been done by the impugned Notification.

4. We have heard at length the learned counsel for the petitioner and the learned Advocate General who appeared for the respondents. In order to understand the history of the case it is desireable to go back to the basic law relating to the local Councils i.e. the Basic Democracies Order 1959 (18 of 1959) (hereinafter referred to as the Order) whereby these institutions were created. In Article 50 of the Order is provided that a District Council, with the previous sanction of the Government, and a Union Council with the previous sanction of the Commissioner may levy, in the prescribed manner, all or any of the taxes, rates, tolls and fees mentioned in the Fifth Schedule to the Order, it is not disputed that item No. 6 of the said Schedule authorised the imposition of taxes, rates of fee on the export of goods from a local area. The order was however, repealed by subsection (1) of section 4, read with first Schedule to the 1972 Ordinance. Subsection (2) of section 4, of the 1972 Ordinance, in spite of the repeal of the Order saved all appointments, rules regulations, bye-laws, notifications, orders, rates, taxes imposed or assessed, contracts entered into, suits instituted and action taken there under subject to the condition that these are not inconsistent with the provisions of the 1972 Ordinance. The learned Advocate General has placed on file Notification No. BDI/1-13/69, dated 2nd October, 1969, item 14 whereof purports to delegate the powers of the provincial Govern ment, in certain respects, to the Commissioner of a Division. The relevant portion of the Notification is as under ; -

"Power delegated. To whom delegated.

1 to 13

14. The power under rule 8 of

the West Pakistan Local

Councils (Imposition of Commissioner.

Taxes) Rules 1961 regard

ing the sanctioning of the

Taxation proposals of

District Councils.

15 to 17 ..

5. It is pertinent to note, as already stated, that Article 60 of the Order required the previous sanction of the Provincial Government to the levy of taxes in the case of a District Council and of the Commissioner in the case of a Union Council. The present case; being 'that of a District Council the powers ordinarily vested in the Provincial Government to accord previous sanction but if the impugned Notification is considered to be a Notification under the said Article 60 of the Order alone then it would be ultra fires the provision thereof inasmuch as the previous sanction was accorded not by the provincial Government but by the Commissioner. Article 93 of the Order however, empowers the Provincial Government to delegate any of its powers under the Order to a Commissioner or to a Collector, Notification No. BDI/1-13/69, dated 2nd October, 1969, was issued in exercise of that power and the provincial Government delegated its power of taxation in respect of District Councils to the Commissioner. This Notification was, therefore, quite valid. No doubt under item 14, rule 8 of the West Pakistan Local Council (Imposition of Taxes) Rules 1961, has been referred to and this rule does not exist, but obviously the intention was to invoke the provision of rule 7 of the said Rules which empowers the Commissioner to accord sanction. The learned counsel for the petitioner has contended that since rule 8 does not exist the very basis of Notification of 2nd October, 1969 is without any foundation and the delegation of power is not lawful. In this objection there is no substance inasmuch as the delegation has been made under Article 93 of the Basic Democracies Order, 1959 and wrong mention of the rule 8 in item 14 does not invalidate the entire Notification. It is settled proposition of law that if a power is available to an authority under certain enactment to make a bye-law or issue a notification but the source of such power is inaccurately indicated, such indication does not invalidate the bye-law or the notification: for it is the substance and not the form of the instrument which matters.

6. In the light of the aforesaid discussion it stands established that under the order, the power of previous sanction, though could be exercised by the Provincial Government, the said Government had authority to delegate it to the Commissioner in view of Article 93 of the Order which it has actually delegated under notification of 2nd October; 1969 referred to above.

7. The point which requires consideration now is whether the said notification of 2nd October, 1969 empowering the Commissioner to accord previous sanction holds the field even after the repeal of the order by the 1972 Ordinance by subsection (1), of section 4, thereof. As already observed all Notifications made thereunder were saved by subsection (2) of section 4, ibid. Thus when the N. W. F. .P. Local Government Ordinance, 1972, held the field the Notification of 2nd October, 1969, remained operative and empowered the Commissioner to accord previous sanction : for this Notification was not inconsistent with the provisions of the 1972 Ordinance inasmuch as section 84, thereof also authorised the Provincial Government to delegates its power under the 1972 Ordinance to an Officer subordinate to it in the same manner in which such a delega tion was permissible under Article 93 of the Order.

8. The matter however does not end here. The 1972 Ordinance was also repealed by subsection (1) of section 4, of the 1979 Ordinance. Subsection (2) of section 4, thereof saved all Notifications etc. made under the 1972 Ordinance in so far as they were not inconsistent with its provisions. The learned counsel for the petitioner contended that since Notification of 2nd October, 1969 was not issued under the 1972 Ordinance, the 1979 Ordinance did not save it by virtue of subsection (2) of section 4, thereof. This objection in my view is without any substance. The saving clauses inserted in the 1972 Ordinance and in the 1979 Ordinance appear to have been so inserted by way of caution and for facility of reference only. Even if they had not been enacted, section 23 of the West Pakistan General Clauses Act, 1956, was sufficient to make the necessary saving. This provides that where any law is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed Act, shall so far as it is not inconsistent with the provision re-enacted continues in force, and be deemed to have been made, or issued under the provision so re-enacted unless or until it is superseded by any appointment, notification order, scheme, rule, form or bye-law made or issued under the- provision so-re-enacted. By virtue of this section 23, even if the saving clauses did not exist in the 1972 and 1979 Ordinances the Notification of 2nd October, 1969, continued in force as it was not inconsistent with either of the two Ordinances. When the 1972 Ordinance was enacted, the said Notification continued in force as it was not superseded by any other Notification. Similarly when 1979 Ordinance was enacted the said c Notification still continued in force. Since the said Notification delegates the powers of the Provincial Government to the Commissioner for accord ing previous sanction to the levy of taxes in the case of District Council, it cannot be said that the Commissioner had no power or jurisdiction to accord the sanction or that it was the Provincial Government alone which could do so.

9. The other objection of the learned counsel for the petitioner, as already stated, is that the Notification of 21st August, 1979 was issued under the 1972 Ordinance insipte of the fact that the said Ordinance had been repealed earlier on 25th July, 1979 by the 1974 Ordinance. No doubt this is so but since the machinery under the 1979 Ordinance had not started functioning and in fact such functions started much after the said date the saving clauses provided for under section 188, of 1979 Ordinance held the field. This section reads as follows :----

"188. Notwithstanding anything contained in this Ordinance, all authorities and all officers who immediately before the enforcement of this Ordinance were exercising functions of Local Councils under the North-West Frontier Province Local Government Ordinance 1972, shall continue to exercise their respective functions till the Local Councils are constituted under this Ordinance ; provided that Government may withdraw all or any of the functions from such authorities or officers as it may deem neces sary.

10. Thus it is evident that so long as the Local Councils are not constituted all authorities which were exercising powers under the 1972 Ordinance continue to perform those powers and consequently the power exercised by the Commissioner in issuing Notification of 21st August, 1979 falls within the saving clause of section 188, and no exception can be taken thereto.

11. The net result of the above discussion is that we are unable to subscribe to the view of the learned counsel for the petitioner that the Commissioner had no power to accord previous sanction to the imposition of the taxes or that no taxes could be imposed by invoking the provisions of 1972 Ordinance by him after the enactment of 1979 Ordinance. This petition consequently fails and is dismissed. Since the questions involved were not free from difficulty we leave the parties to bear their own costs.

M. Y. M. Petition dismissed.

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