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Constitutional Petitions, Nos. D‑341 and 393 of 1986, decided on 17th September, 1986.

‑‑‑Ss. 13 & 91‑‑Constitution of Pakistan (1973), Art. 199‑‑Powers of Government, exercise of‑‑Objection to‑‑Dispute between two union councils over collection of Octroi from a petrol pump situated in area, limits of which later on were altered by Government‑‑Such dispute was referred to District Coordination Committee under S. 91 which gave its verdict‑ ‑Government being empowered under S. 13 to extend, curtail or alter limits of union councils, altered limits of Union Councils in exercise of such powers by Notification‑ ‑ After issuance of said Notification by Government dispute between two councils, held, would not constitute dispute under S. 99 and decision of District Co‑ordination Committee was not final and binding on Union Councils but would be a case of exercise of powers by Government vested on it under law.

Electric Equipment Manufacturing Company Limited V.

Government of Punjab 1979 PLC 416 and Sind Fine Textile Mills Limited v. People's Municipality, Shikarpur PLD 1978 Kar. 449, ref.

‑‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Petitioner not coming to Court with clean hands and there being serious doubt about his bona fide in filing petition, High Court in exercise of Constitutional jurisdiction declined to grant him constitutional relief.'

Ghulam Hyder Baloch and Muhammad Jamil for Petitioner.

Muhammad Ibrahim Memon, Addl. A.‑G. and P.M. Amer and Allahdino G. Memon for Respondents.

Dates of hearing: 1st and 2nd September, 1986.

By short orders dated 2‑9‑1986 we had dismissed Constitutional Petitions Nos. D‑393/86 and D‑341/86 with no order as to costs. The reasons for dismissal of these two petitions are contained in this judgment.

2. In both these petitions, notification dated 23‑2‑1986 of the Government of Sind extending the area of Town Committee, Digri has been challenged. By the aforesaid notification, 15 Blocks of Deh 173 and 2 Blocks of Deh 169 of Union Council, Kangoro, and certain areas of Union Council Soofan Shah (not concerned with the present petitions) have been excluded from the areas of the aforesaid two Union Councils and the Lmits of Town Committee Digri District Tharparkar extended to include the aforesaid areas. C.P. No. D‑393/86 has been filed by Union Council Kangoro through Haji Kehar Khan s/o Haider Bux, Chairman of the said Union Council. There are two respondents in this petition and they are Government of Sind and Town Committee Digri. C.P. No. D‑341/86 has been filed by Tufique Petroleum Service through its proprietor Muhammad Ilyas s/o Fatz Muhammad Khan. Respondents are ‑the same as in the other petition. We heard at length the arguments of Mr. Ghulam Haider Baloch and Muhammad Jamil Advocates on behalf of the petitioners anq Messrs P.M. Amer and Allahdino G. Memon, Advocates for Town Committee Digri and Mr. MI.I. Memon, learned Addl. Advocate‑General for the Government of Sind.

3. In C.P. No. D"393/86, the following contentions were raised before us on behalf of the petitioner:‑

(a) It was submitted that this was a dispute between Union Council, Kangoro and Town Committee Digri in respect of octroi collection from a petrol pump installed and operating in Block 128 of Deh 173 of Union Council, Kangoro and according to Union Council Kangoro, the yearly collection of octroi from the said petrol pump was approximately Rs.30,000/‑ to Rs.40,000/‑, which was a substantial source of income for the petitioner Council and formed half of its budget and the amount so collected was used by the petitioner Union Council on providing various public service and amenities to its inhabitants but Town Committee Digri wanted to usurp this income for itself and this being a dispute between two councils, namely, Union council Kangoro and Town Committe Digri, it was referred to the District Co‑ordination Committee who decided that the area on which the peirol pump was instailed should remain within the limits of Union Council Kangoro, but the Government, by the impugned Notification dated 23‑1‑1986, overruling the District Co‑ordination Committee, extended the urban limits of Town Committee Digri to include inter alia the block on which the aforesaid petrol pump is installed. The contention raised was that this being a dispute between two councils, it was referable for decision to the District Co‑ordination Committee and the decision of such Committee was final and binding on the council concerned. The contention was based on section 91 of the Sind Loal Government Ordinance, 1979, which is reproduced here: ‑

"91. (1) If any dispute arises between two or more councils, the matter shall be referred‑

(a) to the District Co‑ordinate Committee, if the parties concerned are in the same District;

(b) to the Divisional Coordination Committee if the parties concerned are in different districts within the same division;

(c) to Government, if the parties concerned are in different divisions.

(2) The decision of the authority to which the dispute is referred under sub‑section (1) shall be final, and binding on the council concerned."

There is no merit in this contention. Under section 13 of the 1979 Ordinance, the Government of Sind has been empowered to extend, curtail or alter the limits of the councils, and exercising powers vested in the Government by section 13, the aforesaid Notification dated 23‑2‑1986 has been issued. This was not a case of dispute between the two councils where the decision of the District Co‑ordination Committee is final and binding on the council concerned. In the case of the proposed extension of the limits of a council, the other council, whose area is to be curtailed, might be aggrieved but this would not make it a dispute between the councils referable to the District Co‑ordination Committee under section 91 of the Ordinance of 1979. It would be a case of exercise of powers by the Government of Sind vested in the Government by section 13 of the Ordinance.

(b) It was then contended that before extending the area of Town Committee Digri, objections had to be invited by the Government from the residents of Union Council Kangoro as specifically required by section 13 of the 1979 Ordinance. Section 13 of the Sind Local Government Ordinance reads as follows:‑

"13. Government may, after inviting objections from the residents of any union, town, municipality or city and hearing those from amongst them who wish to be heard, by notification after consulting the concerned council, extend, curtail or alter the limits of such union, town, municipality or city or declare that any such union, town, municipality or city shall, from a specified date, cease to be union, town, municipality or city."

Petition No.D‑393/86 has not been filed by any resident of Union Council Kangoro. Reference may also made to the counter affidavit dated 7‑4‑1986 filed by the Assistant Director, Local Government, Sind, in which mention has been made to the Notification dated 14‑11‑1984 published in the Sind Government Gazette inviting objections against the aforesaid extension of the limits of Town Committee Digri and that the Additional Secretary of the concerned department of the Government of Sind had held a meeting with the Chairman of the two councils and hearing was afforded to the petitioner as well as other persons who were present in the meeting and that the site was also inspected by the Additional Secretary on 16‑11‑1985 under the directions of the Government of Sind. In any case, as no resident of Union Council Kangoro is a petitioner in Const. Petition No. D‑393/86, this point cannot be raised by the petitioner council in this petition.

(c) It was contended on behalf of the petitioner council that in view of the provisions of section 13, the notification about curtailment of the limits of the petitioner council could have been issued only after consulting Union Council Kangoro. When it was pointed out to the learned counsel for the petitioner that the case of petitioner itself was that the matter had been discussed in the District Co‑ordinatior Committee and according to the petitioner a decision had been taken in favour of the petitioner council, how could the petitioner make a grievance that it was not consulted. It was submitted on behalf of the petitioner that only the Chairman of the Council had been consulted or heard and not all the members of the Union Council. In that connection reliance was placed on a judgment of learned Single Judge of Lahore High Court in the case of Electric Equipment Manufacturing Company Limited v. Government of Punjab (1979 PLC 416) where section 70 of the Social Security Ordinance, 1965, came under consideration which provides that levy under section 70 is to be made by the Government after consultation with the "institution" and according to section 3 of the Social Security Ordinance, 1965, the management of the "institution" is vested in the governing body, which, with the assistance of a Commissioner, exercises powers vested in the "institution" . It was held that the Commissioner was not a substitute for the Governing Body and in no case could be called the "institution". The decision of the Lahore High Court in 1979 PLC 416 does not help the petitioner in this case. Firstly, it may be observed that in the memo of C.P. No. D‑393/86 no ground has been taken or grievance made that the petitioner council has not been consulted. Then the Chairman of the petitioner council has been attending meetings of the District Co‑ordination Committee in respect of the proposed curtailment of the limits of the petitioner council and it has to be presumed that this was with the approval and consent of the entire council. C.P. No. D‑393/85 has also been filed by the petitioner council through its Chairman Haji Kehar Khan. No allegation has been made in the petition that the Chairman of the petitioner council had been attending the meetings of the District Co‑ordination Committee without the approval or consent of the council. He is not a respondent in the petition on the contrary the petition has been filed by the council through him. In these circumstances the petitioner council is estopped from taking the position that the petitioner council had not been consulted by the Government before the Government issued the Notification dated 23‑2‑1986,

(g) The last contention raised in C.P. No. D‑393186 was that Notification dated 23‑2‑1986 is mala fide and in any case is a colourable exercise of power in as much as the curtailment of the limits of petitioner council by the aforesaid notification dated 23‑1‑1986 was for the sole purpose of depriving the petitioner council from the octroi income of the said petrol pump and for giving the benefit of this octroi income to Town Committee Digri. In that context reliance was placed on a judgment of a Division Bench of this Court in the case of Sind Fine Textile Mills Limited v . People's Municipality, Shikarpur (PLD 1978 Kar 449) . At page 453 of the report it was observed as follows:‑

"We are inclined to the view that the two notification extending the limits of the Shikarpur Municipality for the purposes of octroi only are a colourable exercise by the Government of the power which it purports to have under section 9 (of Sind Peoples Local Government Ordinance, 1972), and that in effect they seek to impose or rather authorize the collection of octroi in areas which were clearly otherwise not municipal areas at all. We do not think that it is permissible under the scheme of the said Ordinance, by the device of extending municipal limits to non‑municipal limits for the purpose of collection of octroi only, to impose octroi within the areas which otherwise are clearly non‑municipal areas."

In the case reported in PLD 1978 Kar 449 the factual position that had emerged on record was that the notifications extending the municipal limits were issued only for purposes of octroi and such extended areas were otherwise not municipal areas at all. This reported decision does not support the case of the peritioner. It is neither an admitted position that the impugned notification dated 23‑2‑1986 has been issued with the sole purpose of giving the right to Town Committee Digri to collect octroi from the extended areas nor the record before us indicates that this was the only purpose of issuance of the aforesaid notification dated 23‑2‑1986. Firstly, we may observe that according to the impugned notification 17 blocks of Deh 173 and 169 of Union Council Kangoro have been declared as urban areas and included in the limits of Town Committee Digri whereas the petrol pump is located on one block only and that is block No, 128 of Deh 173, and apart from these areas of Deh Kangoro, a number of blocks in three Dehs of Union Council Soofan Shah have also been excluded from the limits of that council by the same impugned notification dated 23‑2‑1986 and included as urban areas in the limits of Town Committee Digri, Then from Annexure "E" to the counter‑affidavit dated 7‑4‑1986 filed by the Assistant Director Local Government in C.P. No. D‑393/96, which is a copy of the extract of noting portion of the concerned filed of the Government of Sind, it follows that there were several reasons for extension of the limits of Town Committee Digri.

This noting dated 8‑12‑1985 of the Additional Secretary Local Government is reproduced here:‑

"Copy of Extract of Paras. 131 to 133 of Noting Portion of File No.So. II/Tc.‑II (3)/ 83.

As directed I have visited Digri on 16‑11‑1985 to examine the request of Town Committee for extension of its limits. After hearing the parties and seeing the area, I feel that the request of Town Committee, Digri for extension of its limits merits consideration on the following grounds:‑

(a) Present limits of the Town were fixed in 1948 and there is every justification for extension;

(b) The extension proposal includes areas of Deh Kangoro and Soofan Shah which fall along the Digri‑Tando Bago, Digri‑Tando Glrulam Ali and Digri‑Mirpurkhas Roads. Whereas residents of areas falling is Deh Soofan Shah, along Digri‑Tando Bago and Digri‑Tando Ghulam Ali roads have no objection for inclusion of these areas in the limits of the Town, the only objection came from the Chairman of the Union Council Kangoro and that too in respect of one petrol pump situated on the Digri‑Mirpurkhas Road.

Inclusion of the areas of Deh Kangoro of Union Council, Kangoro falling on/ along the Digri‑Mirpurkhas Road is justified for the reasons stated below: ‑

(i) These areas have been declared 'Sakini'; The trend for expansion of the town is along this road.

(ii) The town committee is already providing water to the disputed petrol pump situated on this road.

It is however recommended that the Town Committee should pay Rs.25,000 annually to the Union Council, Kangoro for a period of 3 years (including the current year) so that the Union Council is adequately compensated.

The map showing the present and the extended limits of the Town Committee is at Flag 'B' In this map the area proposed to be included, on extension, is shown in orange colour. The disputed petrol pump in Block 128 of Deh 170 (which lies on the Digri‑Mirpurkhas Road) is marked in sectional lines.

In view of the resolutions of the Town Committee, Digri, recommendations of Assistant Director, Local Government Tharparkar, Deputy Commissioner, Tharparkar, Commissioner, Hyderabad and the facts stated above, it is proposed that the limits of Town Committee, Digri may be extended to include areas of Dehs Kangoro and Soofan Shah as mentioned in Schedule to this Department Notification ‑No.SO.II/TC‑II (3)/83, dated 7‑11‑1984 (Flag 'C').

(Sd.)/‑

Addl: Secretary

(L.G)

D T . 8 .12‑85 . "

It is, therefore, not established that the sole purpose of issuance of the impugned notification dated 23‑2‑1986 was for depriving the petitioner council from the octroi income of the said petrol pump.

4. The other petition C.P. No.D‑341/86, as observed earlier, has been filed by Tufique Petroleum Service. In support of this constitutional petition, apart from the contentions already referred to above in connection with C.P. No. D‑393/8.6, it was contended that the Petitioner petrol pump has been paying octroi to Union Council, Kangoro but by the impugned notification, the block, on which petitioner petrol pump is located, has been included in the urban area of Town Committee Digri and now the petitioner will have to pay more octroi. According to the learned counsel for the petitioner petrol pump, the impugned notification could not have been issued without notice to the petitioner petrol pump. It was argued that the petitioner petrol pump is a resident of Union Council Kangoro and under section 13 of the Sind Local Government Ordinance, the impugned notification, in so far as the areas of Union Council Kangoro are concerned, could not have been issued without inviting objections from the residents of said Union Council and without hearing those who wished to be heard. After perusal of the record including the counter‑affidavit and the documents filed by the respondents, we are of the view that the petitioner in C.P No. D‑341/86 has not come with clean hands to the Court. It has come to light that first C.P. No. D‑393/86 was filed by the Union Council on 1‑3‑1986 which was admitted to regular hearing but no interim order was passed in favour of the Council by this Court. Thereafter, on 24‑3‑1986, petitioner Petroleum service filed third Class Suit No. 1/86 against Town Committee Digri before Civil Judge, Samaro seeking an injunction against Town Committee Digri from collecting octroi, in which reference was made to the filing of the constitutional petition by the Union Council, Kangoro, challenging the impugned notification dated 23‑2‑1986 but the grievance was that both the Union Council as well as the Town Committee Digri were asking for octroi whereas the petitioner Petroleum Service was paying octroi to the Union Council and as the matter was sub judice before the High Court, Town Committee Digri could not take the law in their own hands. As interim status quo order had been obtained on the same day i.e. 24‑3‑1986 from the learned Civil Judge. Then on 13‑4‑1986 C.P. No. D‑341/86 was filed by petitioner petrol pump. On question from the court learned counsel for the petitioner stated that he was not appearing for the petitioner in the civil suit and as such ‑ he was not aware of the present position of that suit. No reference has been made in the memo of C.P. No. D‑341/86 about the legal proceedings taken by the petitioner earlier and the orders of status quo obtained from the learned Civil Judge, Samaro. In the facts and circumstances of this case, the petitioner was required to disclose all tense facts in the memo of constitutional petition.

From the documents filed by the respondents it has also come on record that the petitioner had itself applied to and obtained water‑connection from Towm Committee Digri for the petrol pump and that it has also obtained electricity on the basis of no objection issued by Town Committee Digri. It has also came on record, and this is not denied by the petitioner that in the cash memos issued by petitioner in respect of its sales the address of the petitioner petrol pump is given as Ntirpurkhas Road, Digri, Sind and not Union Council Kangoro. It appears that this C.P. No. . D‑341,86 has been filed by the petitioner not as an aggrieved party but at the instance of the Union Council Kangoro. It is also doubtful whether the petitioner petrol pump can be considered as a resident of the Union Council, Kangoro.

As the petitioner in C.P. No. D‑341/86 had not come to the Court with clean hands and as there was a serious doubt about his bona fides in filing this petition, we were not inclined to grant him any relief. The petition was dismissed.

H.B.T./T‑15/K. Petition dismissed

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