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Petitioner: MESSRS AMIN JUTE MILLS ICTD., CHITTAGONG VS Respondent: THE CHITTAGONG MUNICIPALITY AND OTHERS
P L D 1970 Dacca 338
P L D 1970 Dacca 338
Before B. A. Siddiky, C. J. and Maksum‑ul‑Hakim, J
MESSRS AMIN JUTE MILLS ICTD., CHITTAGONG‑Petitioner
Versus
THE CHITTAGONG MUNICIPALITY AND OTHERS Respondents
Writ Petitions Nos. 577 and 578 of 1967, decided on 26th July 1968.
(a) Notification‑Original notification duly signed by officer of Government but notification as published in official Gazette not b Baring name of any official of Government Held mere irregularity not affecting validity of notification..
(b) Municipal Administration Ordinance (X of 1960), S. 7 read with East Pakistan Declaration of Municipalities Rules, 1960, r. 4(4) and Basic Democracies Order (18 of 1959), Art. 3(1), cl. (55)‑Area declared "urban" under Basic Democracies Order‑Can serve purpose of "urban area" for conversion into a Municipality contemplated under S. 7 of Ordi nance X of 1960.
Where the contention was that the creation of an urban area out of rural area under the Basic Democracies Order, 1959, would be only for the purposes of the Order and an area which is declared to be an urban area under the Basic Democracies Order, 1959, cannot be converted into a Municipality or cannot be included within the limits of a Municipality Held : the provision of clause (55) of sub‑Article (1) of Article 3 of the Basic Democracies Order, 1959, gives complete authority to the Government to convert a rural area into an urban area if the area to be so converted has qualified to be an area. By the introduction of the Basic Democracies Order, 1959, [he Country as a whole minus ccrt4in areas in the west wing of the country has been divided into units known as Union Councils, Union Committees and Town Committees, Union Councils are composed of the units under the Basic Democracies Order which are situate in the rural areas. Those of the units which are in the urban areas constitute Union Committees and those of the units which are situate in a town or within the limits of the Municipality constitute Town Committees. These Sub -Divisions of the country into different heads under the Basic Democracies Order relative to their status (Rural, Urban, Town) do not in any way come in conflict with the provisions of the Municipal Administration Ordinance under which Municipa lities can be created or their limits extended or curtailed. It is not that the Municipalities are created in some areas which are outside the limits of the units created by the Basic Democracies Order. The Municipalities must exist in some area which may be covered by any of the units created by the Basic Democracies Order. All that is necessary and essential for the purpose of declaration of a Municipality is that it must be so done in an area which is not a rural area or, in other words, which is an urban area. How any urban area created under the Basic Demo cracies Order can be blessed with the status of a Municipality. There is no restriction in the powers of the Government as contemplated by section 7 of the Ordinance to either create a Municipality in an urban area or to curtail the limits or extend the limits of an existing Municipality. The only limitation is that no Municipality can be established in an area which is not an urban area. Since the Government has been vested with the powers under Article 3(1)(55) of the Basic Democracies Order to declare an area to be an urban area, it is evident that, if an area has been declared to be an urban area under the said Article of the order, the Government may then establish a Municipality under the Ordinance in that Urban area.
(c) Municipal Administration Ordinance (X of 1950), S. 7 and East Pakistan Declaration of Municipalities Rules, 1960, r. 4(4)‑Words "from a date to be specified" in S. 7 of Ordinance and r. 4(4) of Rules, have reference to exclusion part of section and rule‑Specifying date necessary only when urban area or part thereof is excluded from limits of municipality.
The phrase "from a date to be specified", occurring in section 7 of the Municipal Administration Ordinance, 1960, governs that part of the section beginning from "declare that any urban area shall, cease to be a municipality". Similarly, the phrase occurring in sub‑rule (4) of rule 4 of the East Pakistan Declaration of Municipalities Rules, 1960, also governs that portion of the rule which begins after the word "or" with the words "excluding any area therefrom". The phrase "from a date to be specified" occurring in section 7 of the Ordinance relates to the cessation clause of the section and not to the declaration, extension, curtailment or alteration part of it because of the disjunctive nature of the proposition occurring in the said section. There is no question of specification of a data when an urban area other than 4 cantonment is declared to be a Municipality and the limits of a Municipality are extended, curtailed or otherwise altered but it is incumbent to specify the date only when an urban area or a part thereof is excluded from the limits of a Municipality. Similarly in rule 4(4) the phrase "from date to be specified in the notification" must govern the exclusion part of the rule and not the extension, curtailment or alteration part of it. Upon a reading of section 7 of the Ordinance and sub‑rule (4) of rule 4 of the rules it is therefore clear that the phrase "from a date to be specified" occurring in both the places refers to exclusion part of the section and the rule.
Commissioner of Income‑tax, Bengal v. Messrs Mahaliram Ramjidas A I R 1940 P C 124 ref.
AT. H. Khondkar, S. M. Hossain and A. M. Mahmudur Rahman for Petitioner (in both the Petitions).
A. K. Brohi, Kamal Hossain (on 5th and 6th June 1968), Sddique Ahmed Chowdhury and A. K. M. Shafiqur Rahman for Respondents Nos. I and 2 (in both the Petitions),
Asrarul Hossain Advocate;‑General and Anivarul Haque Chou dhury for Respondent No. 3 (in both the Petitions on 3r6, 17th, 18th, 19th and 22nd July 1968).
Dates of hearing; : 5th, 6th June, 3rd, 17th, 18th, 19th and 22nd July 1968.
JUDGMENT
SIDDIKY, C. J.‑---This judgment will dispose of Petitions Nos. 577 and 578 of 1967.
Petition No. 577 of 1967 is by Messrs Amin Jute Mills Limited laving their register‑d office AU Sadarghat Roaa, Cliittagong and Petition No. 5%8 of 1967 is by Messrs Amin Limited having their registered office at Sadarghat Road, Chittagong.
Facts in both the petitions are the same. The only difference is in the name of the petitioner‑company and the holding numbers involved.
The petitioners have asked for a declaration that the pro ceedings taken or acts done in the impugned assessment proceedings and affirmed with certain modifications by the Review Sub‑Committee, Chittagong Municipality, are without lawful authority and of no legal effect.
Petitioners' case is that thev have a Jute Mill and Textile Mill in Paschim Solashahar, a rural area, close to Chittagong town. In January 1958, Government of East Pakistan, by a notification, extended the East Pakistan Urban Immovable Property Tax Act, 1957 to the said Paschim Solashahar area. The companies were then illegally assessed to tax under the said act and they paid tax to the tune of Its. 2,43,537.50 up to 1961‑62. When the assessment proceedings for the year 1963‑64 was started, the Companies moved this Court and obtained a rule nisi on the Provincial Government and ultimately succeeded in those rules wherein it was declared that the notification of the Government, by which the East Pakistan Urban Immovable Property Tax Act, 1957 was extended to Paschim Solashaliar, was done without lawful authority. Thereafter, the petitioners served notice under section 80 of the Code of Civil Procedure demanding the refund of the tax already paid, and after the expiry of the period of notice instituted a Civil Suit at Chittagong. After the suit was filed, the Government refunded the said sum of Rs. 2,43,537.50.
It is alleged by the petitioners that sometime thereafter the jurisdiction of the Chittagong Municipality was illegally and without jurisdiction extended to cover the said rural area of Paschim Solashahar Monza where the factories of the petitioners are situate by Notification No. S‑III,/38‑4/65/857 dated August 16, 1965 published in the Dacca Gazette on the same date. After this notification was published, the petitioner‑companies were assessed by the Chittagong Municipality to a huge amount of taxes and rates. They made an appeal against the said assess ments and the appeals were considered by a Review Sub- Committee of the Chittagong Municipality and they modified the assessment orders to a certain extent.
Being aggrieved by the said assessment orders and the order of the Review Sub‑Committee modifying to a certain extent the assessment orders, the petitioner‑companies obtained these rules challenging the validity of the orders of assessment on the ground of the illegal extension of jurisdiction of the Chittagong Municipality to the Paschim Solashahar Mouza on various grounds.
The Province of East Pakistan was not made a party respondent in these petitions. After we had heard the learned Advocates for the petitioners and Mr. Brohi representing the Chittagong Municipality, the petitioners took time and added the Province of East Pakistan as a party to the proceedings, and in response to tine notices issued to the Province, the learned Advocate‑General appeared oft its behalf.
Respondents 1 and 2, namely, the Chittagong Municipality and the Reveiw Sub‑Committee of the said Municipality contested this application by filing affidavits‑in‑opposition. The respondents have denied the allegations made in the petition. It has further been stated by the respondents that the Paschim Solashahar Mouza was made an urban area by a notification published in the Dacca Gazette on 12th February 1.964 under Article 3(1) (55) of the Basic Democracies Order, 1959 and another notification was published on the same date in the Dacca Gazette under rule 4(II of the East Pakistan Declaration of Municipality Rules, 1960 declaring the intention of the Government to include the urban areas of Pxschim Sholashahar and others within the Chittagong Municipality.
With regard to the allegation made by the petitioner companies that the Review Sub‑Committee of the Municipality disposed of their applications for review of assessment without giving them a hearing, it is stated in the affidavits‑in‑opposition that one Mr. Shafique Ahmed, an Advocate, appeared on behalf of the petitioners on 2‑9‑1967 before the Review Sub‑Committee who, after hearing the said learned Advocate as a token of his presence at the time of the bearing of the Review Sub‑Committee, put his signature on the said date on the margin of the application for review of the assessment. It is further
stated by the respondents that the petitioners did not make any objection whatsoever at the appropriate time before the competent authority before publication of the notification on the 16th of August 1965.
In reply, the petitioners have reiterated their statements made in the petitions but have not controverted the statements made in the affidavit‑in‑opposition that their lawyer was present before the Review Sub‑Committee at the time of hearing of their objections. They have not also controverted the statement that they had not made any objection at the appropriate time before the relevant authority in accordance with the rules after the Notifica tions Nos. S‑III/3B‑1/63‑137 and S‑111/3B‑1/63‑138 (sic) dated the 12th February 1964, were published in the Dacca Gazette on the 27th February 1964, declaring Paschim Solahshahar as an urban area and also the intention of the Government to include the said urban area within the Chittagong Municipality.
The learned Advocate for the petitioners have raised before us several points for our consideration, first of which is that a Municipality cannot be established in a rural area, and Paschim Solahshahar is still a rural area. The learned Advocate for the petitioners has conceded that a Municipality can be established in an urban area, but Paschim Solahshahar Mouza, within the jurisdic tion of which the factories and mills of the petitioners lie, has not been converted into an urban area. He has, in this connection, also contended that, if at all any, step has been taken to convert the Paschim Solahshahar Monza into an urban area, that has been done illegally. Reasons for this according to the learned Advocate are that no rural area can be converted into an urban area under the Basic Democracies Order, 1959 except for purposes of the said order, and also that the notifications, alleged to have been issued converting Paschim Solashahar into an urban area having not been authenticated by a Secretary of the Government of East Pakistan, are bad in law. The point can be disposed of by a brief reference to the relevant provisions of law and the notifica tions published in the official Gazette. Clause (55) of sub article (1) of Article 3 of the Basic Democracies Order, 1959 gives the definition of an "urban area" and provides for declaration of an area to be an urban area by publication of notification in the official Gazette. Clause (55) of sub‑Article (1) of Article 3 of the Basic Democracies Order, 1959 is in the following terms :‑
"Urban area" means an area within the jurisdiction of a municipal body or a Cantonment Board, and includes any other areas which the Government may, by notification in the official Gazette, declare to be an urban area for the purposes of this order."
This provision, in our opinion, gives complete authority to the Government to convert a rural area into an urban area if the area to be so converted has qualified to be an area. From the affidavits‑in‑opposition of the respondents, it is found that the Paschim Solashahar area has lost its character as a rural area by the establishment of large number of factories, mills and other industrial establishments. As a result, the Government thought fit to declare the said Paschim Solashahar and certain other areas around Chittagong town to be urban areas. To this end, Notification No. S‑III/3B‑1/63/137 dated 12th February 1964, was published in the Dacca Gazette of February 27, 1964. By this notification, the mouzas mentioned therein lying within three police stations around Chittagong town declared to be urban areas under clause (55) of sub‑Article (1) of Article 3 of the Basic Democracies Order, 1959. The notification was ordered to come into force with immediate effect. The whole Paschim Solashahar Monza was included in the schedule to this notification. Mr. Khondkar, the learned Advocate for the petitioners, has challenged this notification on the ground that the publication in the Gazette of this notification does not bear any signature of any officer of the Government of East Pakistan from which it can be said that the same has been published under official authority or that the notification is genuine. No doubt, there is no signature in this notification as published in the official Gazette. We, there fore, called for the file of the Government and the learned Advocate‑General appearing for the Province produced the file before us. Mr. Khondkar also had a look into the file. From its perusal it is found that the Joint Secretary, Basic Democracies Department, Government of East Pakistan, Mr. S. D. Khan, had signed the original notification but somehow the notification as published in the official Gazette does not contain his signature or the signature of any other officer. The question is: Will this absence of signature in the Gazette, as published, make it illegal. This objection was not taken in the petitions ; but in the affidavit -in‑reply this point has been raised and Mr. Khondkar's sub mission has been that after this notification was disclosed in the affidavit‑in‑opposition he discovered that there was no signature or designation of any officer appended to it. The petitioners challenged the authority of the Municipality to tax them on the ground that Municipal limits could not be extended to his area which is a rural area. As such it was their duty to find out whether any notification has been made converting their area into an urban area. In fact they did not raise any objection to the Notifications Nos. S‑III/3B‑I/3B‑137 and S‑III/3B‑1/63 (sic) dated 12th February 1964. Since from the records we are satisfied that this notification was signed by the Joint Secretary to the Govern ment of East Pakistan, we do not think that this notification dated the 12th of February 1964, as published in the Dacca Gazette of February 27, 1964, is without any authority to make it legal.
We may here mention that it is found from the Gazette that this notification along with another notification being No. S‑111/3B 1/63/138 dated 12th February 1964 and another notification being No. S‑III/IM‑44/63/140 dated 12th of February 1964, relating to the leave of the Chairman of the Narayangunj Municipal Committee were published, one after another, at pages 293, 294 and 295 of the Dacca Gazette dated February 12th, 1964. The. Notification No. S‑III/IM‑44/63/140 dated 12th February 1964, p respect of grant of leave to the Chairman of the Narayanganj Municipal Committee is found signed "By order of the Governor, S. D. Khan, Joint Secy." All these three notifica tions relate to matters concerning the Department of which Mr. S. D. Khan is the Joint Secretary of the Department, namely, the Basic Democracies Department of the Government of East Pakistan, and below these there are other notifications printed at page 295 of the Gazette which relate to, other Departments of the Government. It may be that the Press, finding the three notifica tions coming from the same Department, might have printed the name of the Joint Secretary at the end of the third notification or it may as well be that the officer who was responsible in the Secretariat to send these notifications to the press for publication in the Gazette might have sent all those together obtaining the signature of the Joint Secretary at the end of the last one which relates to the leave of the Chairman of the Narayanganj Municipal Committee. Be that as it may, we do not think, after having looked into the original file where we have already found the signature of the Joint Secretary in the original notification, tha'4 R this mere irregularity in the printing of the notification in the Gazette without the name of the officer would make it illegal. AZ the most, it may be said to be an irregularity, but this mere irregularity will not, in our opinion, affect the validity of this notification. We also think that this does not in any way prejudice the petitioners with regard to the declaration of Paschim Solashahar as an urban area under the relevant provision of the law.
In this connection, we may also deal with the objection of Mr. Khondkar in regard to the publication of the Notification No. S‑111/3B‑1/63/138 dated .12th of February 1964, by which the Governor had expressed his intention to include the newly constituted urban area by the Notification No. S‑111/3B‑1/63/137 date the 12th of February 1964, within the limits of the Chittagong Municipality. The objection taken with regard to this notification by Mr. Khondkar is the same as in the case of Notification No. S‑I11/3B‑1/63/137 and our views are also the same as expressed on this point in regard to the Notification No. S‑111/3B‑1/63/137 dated the 12th of February 1964.
Now the question is as to whether, under the Municipal Administration Ordinance, 1960 (Ordinance No. X of 1960), hereinafter referred to as the Ordinance, an urban area can be converted into a Municipality or can be included within the limits of an existing neighbouring Municipality. Mr. Khondker's contention hag been that the creation of an urban area out of rural area under the Basic Democracies Order is only for the purpose of the said Order, and an area which is declared to be an urban area under the Basic Democracies Order cannot be converted into a Municipality or cannot also be included within the limits of a Municipality.
"Urban area" has not been defined in the Ordinance. In section 3(2) of the Ordinance, it is said that "words and expressions used but not defined in this Ordinance shall, unless the context otherwise requires have the meaning assigned to them inn the order". "Order" means, in terms of clause (30) of sub‑section (1) of section 3 of the Ordinance, "the Basic Democracies Order, 1959 (President's Order 18 of 1959)". Section 7 of the Ordinance which reads as follows :‑
"Declaration, etc., of Municipality.‑The Government may, in the prescribed manner, declare any urban area other than a cantonment to be a municipality, and extend, curtail or otherwise after the limits thereof, or declare that any urban area shall, from a date to be specified, cease to be a Municipality."
Provides for the power of the Government to declare any urban area other than a Cantonment to be a Municipality in the prescribed manner and to extend, curtail or otherwise alter the limits thereof, or declare that any urban area shall, from a date to be specified, cease to be a municipality. We see no reason in the contention of Mr. Khondkar that an area declared to be an urban area under the Basic Democracies Order cannot serve the purpose of an urban area for cenversion into a Municipality as contemplated by section 7 of the Ordinance.
By the introduction of the Basic Democracies Order, 1959, the country as a whole minus certain areas in the west wing of the country has been divided into units known as Union Councils, Union Committees and Town Committees. Union Councils are composed of the units the Basic Democracies Order which are situate in the rural areas. Those of the units which are in the urban areas constitute Union Committees and those of the units which are situate in a town or within the limits of the Municipality constitute Town Committees. These Sub‑Divisions of the country into different heads under the Basic Democracies Order relative to their status (Rural, Urban, Town) do not in any way come in conflict with the provisions of the Ordinance under which Municipalities can be created or their limits extended or curtailed. It is not that the Municipalities are created in some areas which are outside the limits of the units created by the Basic Democracies Order. The Municipalities must exist in some area which may be covered by any of the units created by the Basic Democracies Order. All that is necessary and essential or the purpose of declaration of a Municipality is that it must be so done in an area which is not a rural area or, in other words, which is an urban area. Now, any urban area created under the Basic Democracies Order can be blessed with the status of a Municipality. We find no restriction in the powers of the Government as contemplated by section 7 of the Ordinance to either create a Municipality in an urban area or to curtail the limits or extend the limits of an existing Municipality. The only limitation that we find is that no Municipality can be established in an area which is not an urban area. Since the Government has been vested with the powers under Article 3(1)(55) of the Basic Democracies Order to declare an area to be an urban area, we are of the opinion that if an area has been declared to be an urban area under the said Article of the Order, the Government may then establish a Municipality under the Ordinance in that Urban area.
Next, Mr. Khondkar contended that the impugned notifica tion, namely, the Notification No. S‑III/3B‑4/65/857 dated 16th of August 1965 published in the Dacca Gazette, Extraordinary on Monday August 16, 1965, is without any foundation as respects the Paschim Solashahar Mouza which concerns him, for two reasons, firstly, that the Notification No. S‑III/3B‑1/63/137 and S‑III/3B‑1/63/ 138 dated 12th of February 1964 published in the Dacca Gazette of February 27, 1964, not having been signed by the proper authority, there is no notification either creating an urban area under Article 3(1)(55) of the Basic Democracies Order or expressing the intention of the Governor to include the said urban area constituted under Notification No. S‑III/3B‑1/63/163 (sic) dated 12‑2‑64 within the Chittagong Municipality. We have already answered this question earlier while dealing with the objection of Mr. Khondkar in regard to the validity of these two notifications. The second objection of Mr. Khondkar in this regard is that this Notification No. S‑III/3B‑4/65/857 dated 16th August 1965, has not specified the date from which the urban area so created is to be included within the limits of the Chittagong Municipality in terms of section 7 of the Ordinance read with Rule 4(4) of the East Pakistan Declaration of Muni cipalities Rules, 1960 made under section 121(2) of the Ordinance of 1960. We have already quoted section 7 of the…
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