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civil Revision Application No.254 of 1977, heard on 29th August, 1984.

---Rr. 3 to 7 & 9--Civil Procedure Code (V of 1908), S.115--Levy of new tax by Municipal Committee--Review of financial position of Municipal Committee-- Provisions of r.3 review financial position of Municipal Committee not followed either by Committee or its Chairman, therefore, very basis of imposition of new taxes under Rules, 1960 found missing--Municipal Committee passing resolution without reviewing financial position of Municipal Committee, held, an irregularity committed by Municipal Committee in respect of passing of such resolution.

---S. 36--West Pakistan Municipal Committees (Imposition of Taxes) Rules, 1960, rr. 3 to 7 & 9--Civil Procedure Code (V of 1908), S.115- Levy of tax--Word "direct" used in S.36 of Ordinance, 1960 obligatory and mandatory--Government's letter not appearing in form of direction to Municipality to levy a tax but merely advising Municipalities to consider levy of tax if necessary in their own discretion and asking them to follow rules for imposition of new taxes and forward their proposal for consideration of Government--Mere advice of Government, held, could not be regarded as direction--Resolution of Committee levying tax, therefore, could not be regarded to be a resolution passed in compliance of Government's letter in circumstances.

---Ss. 36 & 39--West Pakistan Municipal Committees (Imposition of Taxes) Rules, 1960, rr.3 to 7 & 9--Civil Procedure Code (V of 1908), 'Ss-9 & 115--Suit--Jurisdiction of civil Court--Suit in respect of assessment of tax or liability of a person to be taxed not expressly barred by S.39 of Ordinance, 1960- Tax levied by Municipal Committee not found to be imposed under provision of Ordinance, 1960 or West Pakistan Municipal Committee (Imposition of Taxes) Rules, 1960, held, could be challenged before a civil Court.

A.G. Dastagir for Appellant.

Asghar Hussain for Respondent No.l.

Abbas Farooqui for Respondents Nos. 2 to 4.

Dates of hearing: 22nd and 29th August, 1984.

This revision called into question the judgment and decree of 11 A.D.J. Larkana dated 4-9-1977 which had decreed 'the suit of the respondent filed for a declaration and injunction against the imposition of a tax of Rs.5 per show. The original Court had dismissed the said suit by its judgment and decree, dated 28-2-1976.

2. The basic question involved in this revision is whether the rules 3 to 7 of W.P.M.C. (Imposition of Taxes) Rules, 1960 have been followed in respect of the imposition of this tax or whether rule 9 which was brought into effect on 3-9-1968 can be used for the purpose of validity of such taxes if the said taxes are found to be imposed on a direction from the Government.

3. The learned A.D.J. has come to the conclusion that the mandatory provisions of Imposition of Municipal Committee Taxes Rules were violated. Rule 3 provides that if after reviewing the financial position of Committee, the financial position calls for any change in the tax structure, the Chairman shall formulate taxation proposals and incorporate them in the Appendix of the budget. There is nothing on record to show that any such review was made by the Chairman of Kambar Municipal Committee in this case and since the basic provision of rule 3 is not followed therefore, thereafter the question of publication of preliminary taxation proposals and hearing of objections under rules 4, 5 and 6, finalisetion of the taxation proposals under rule 6 and sanction of the Government under rule 7 of the relevant rules does not arise and they are of no effect. The first resolution of the Kambar Municipal Committee is dated 28-7-1966 which is Ext. 87 and which merely states as under:----

"Resolved that the recommendation of the committee be approved and the matter be referred to Government for necessary sanction already decided. "

This cannot be regarded as review of the financial position of the Municipal Committee by the Chairman. The only action that the Chairman of the appellant has taken- on 28th July, is found on Ext.86 where some persons had made an endorsement to the effect that any new tax required the following formalities:----

1. Inviting objections of public.

2 . M . C . resolution. .

On this the Chairman has written "This is not so; the issue may be placed before the M.C. first" Signed. Chairman 28-7-1966". It appear that thereafter the resolution which is Ext.87 was passed. Whatever the position may be the review of the financial position as required under rule 3 does not appear to have been done either by the Committee or the Chairman of the Committee and hence the very basis of imposition of new taxes under the then existing rules is found to be missing and consequently the judgment of the learned A.D.J. is correct. I may also here point out that the learned A.D.J. has found as a fact that there had been -irregularity committed by the Municipal Committee in respect of passing of resolution by the sub-committee and the initiating of the Chairman and in the formation of another sub-committee in respect of finalisation of respects. There is nothing pointed out to me by the learned counsel for the petitioner to show that those findings are wrong.

4. The most important submission made by Mr. Dastagir, the learned counsel was that the tax of Rs.5 imposed by Kambar Municipal Committee on 10-12-1970 has been imposed under the directions of the Provincial Government as contained in its letter Exh.86, dated 15-7-1964. This letter is sought to be treated as a direction issued by the Provincial Government under section 36 of the Municipal Administration Ordinance, 1960. The said section reads as under:----

"Section 36. Directions with regard to levy of tax etc.-- (1) The Government may direct any Municipal Committee:-

(a) to levy any tax, rate, toll, or fee which the Municipal Committee is competent to levy under section 33; or

(b) to increase reduce any such tax, rate, toll or fee, or the assessment thereof, to such extent as may be specified; or

(c) to suspend, abolish or exempt any person or class of persons or property or class of property from the levy of any ,such tax, rate, toll or fee.

(2) If a direction issued under subsection (1) is not complied with in the specified time, if any, the Government may make an order giving effect to she direction." .etc.

It appears to me that the above section has used the word "direct" in the sense of an order or as a mandatory instruction from the Government which the Municipalities are bound to follow as it is provided that in case the Government has directed a Municipality to levy a tax and time has been specified by the Government then the Government can make an order giving effect to the said direction if compliance is not made within time. Therefore, the word "direct" is clearly obligatory and mandatory and a mere advice cannot be regarded as a direction.

5. In the light of above provisions of section 36 and its interpre tation placed by me if we look at Exh.86 it appears to me that it cannot be taken as a direction issued by the Government to any Municipal Committee or all Municipal Committees in Pakistan for the purpose of imposing a tax on cinema show. However, this does appear to be a rejection of the proposals for levy of tax on cinema tickets. Thereafter it contains an opinion from the Government of West Pakistan that, the consolidated tax in the form of levy of a tax per show on cinema may be allowed. The said letter reads as under:-

"I am accordingly to say that the Municipal Committee in your jurisdiction may be advised that instead of levying the tax as a tax on tickets, they should levy it as a tax per show on the lines of the precedent of Karachi and forward the proposals for consideration of Government."

This letter, therefore, is merely an advice and could not be taken as a direction from the Government to any Municipality to levy such tax. In fact the rate of tax is not even mentioned in the letter. And when this letter says that the Municipalities should levy tax as per show and forward the proposal for consideration of Government, then it merely wises the Municipalities to consider the levy of such tax if they rider it necessary in their own discretion. It is not in the form of a direction of the nature visualized under section 36 which could dispense with the rules. But this letter appeared to suggest that the Municipalities would follow rules for imposition of new taxes and, thereafter forward their proposal for consideration of the Government.

6. The wording of the above letter of 15-7-1964 does not appear to be in the form of direction which the Municipal Committee is bound to comply and therefore, the resolution of the Municipal Committee namely Exh.87 cannot be considered to be a resolution passed in compliance of this letter.

7. In fact the action taken by the Kambar Municipal Committee in publishing the proposals of the tax on 19-3-1966 shows that the petitioner had not considered it as a direction and was treating it as a mere advice.

8. Mr. Dastagir invited my attention to rule 9, which was brought into force on 3rd September, 1968, which has provided that rules 3 to 7 of W.P.M.C. (imposition of Taxes) Rules 1960 shall not apply where the Government directs any Municipal Committee under the provisions of subsection (1) of section 36 of M.A. Ordinance, 1960 to levy any tax etc. or to reduce the same. But still the procedure prescribed in rule 9 shall have to be followed. Clause (a) of sub-rule (1) of rule 9 requires holding of meeting of Municipal Committee within the time specified by the Government and then clauses (b) and (c) require submission of the resolution to the Government and then sanction of the Government under clause (c) is stipulated, and clause (d) requires notification in the official gazette. Mr. Dastagir particularly pointed out that sub-rule (2) of rule 9 treats a resolution, passed by a Municipal Committee before enforcement of rule 9 in regard to a direction given by the Government for the levy of any tax, as a resolution which is referred to in clause (b) of sub-rule (1) of rule 9. The submission of the learned counsel is that the resolution of 28-7-1966 passed by the Petitioner Committee Exh.87 should be treated as a resolution passed under the direction of the Government, dated 15-7-1964 and hence it should be treated as covered by rule 9 and since the same has been sanctioned by the Government, therefore, it should be treated as valid in law. I am sorry I cannot accept this interpretation of the learned counsel because I am clearly of the view that the letter of the Government, dated 15-7-1964 cannot be treated as a direction to Kambar Municipal Committee to impose a tax on cinema show at Rs.5 per show and the said letter was merely in the form of advice which was not bound to be complied with and hence rule 9 is not attracted in this case. This contention, therefore, fails.

9. The next point urged by the learned counsel was that section 39 of the Municipal Administration Ordinance, 1960 bars a suit in respect of assessment of a tax or the liability of a person to be taxed. I do not agree with this submission. In the first instance this section does not talk of a suit being barred and I am of the view that the suit cannot be barred unless it is provided in the relevant law as section 9 of the C.P.C. invested the civil Courts with jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred. Moreover, even if the implied bar of, section 39 was considered to be applicable then again it is only a tax which is duly imposed under the Ordinance X of 1960 which saves it from the challenge. However, if a tax is not found to be imposed under the provisions of M.A. Ordinance X of 1960 or rules framed thereunder then the said tax cannot be held to be a tax under Ordinance X of 1960. Since the tax imposed is not found to be in accordance with the rules framed under W.P.M.C. (Imposition of Taxes) Rules, 1960, therefore, it was rightly challenged before a civil Court. This petition is, therefore, found to be without merit and is hereby dismissed.

M.Y. H Petition dismissed.

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