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Petitioner: TAJIRANE MAWESHIYAN WELFARE ASSOCIATION VS Respondent: GOVERNMENT OF SINDHHonorable Justice S. AHMED SARWANA
2003 M L D 1823
2003 M L D 1823
[Karachi]
Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ
TAJIRANE MAWESHIYAN WELFARE ASSOCIATION---Petitioner
Versus
GOVERNMENT OF SINDH and others---Respondents
Constitutional Petition No. 143 of 2003, decided on 4th February, 2003.
(a) Constitution of Pakistan (1973)---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Vires of tax---Validity---If any tax is levied without following the procedure laid down in law, High Court in its Constitutional jurisdiction is empowered to declare the same to be ultra vires the law and unenforceable.
(b) Sindh Local Government Ordinance (XXVII of 2001)----
----Ss.116 & 190---Constitution of Pakistan (1973), Art. 199-- Constitutional petition---Maintainability---Alternate remedy---Levy of cattle entry fee---Grievance of petitioner was that the Authorities had not followed procedure laid down in S.116 of Sindh Local Government Ordinance, 2001, while enhancing the cattle entry fee in the days of Eid -ul-Azha--- Plea raised by the Authorities was that the petitioner had alternate remedy available in shape of appeal under S.190 of Sindh Local Government Ordinance, 2001---Validity---Where the fee had been enhanced only in respect of the animals to be sacrificed in the forthcoming Eid-ul-Azha, the remedy of appeal under S.190 of Sindh Local Government Ordinance, 2001, was neither efficacious nor adequate---High Court directed the Authorities to charge the fee as published in the official Gazette---Petition was allowed accordingly.
Mrs. Naveen Merchant for Petitioner.
Abbas Ali, Addl. A.-G. for Respondent No. 1.
Manzoor Ahmed for Respondent No.2.
Muhammad Nawaz Shaikh for Respondent No.3.
K.A. Wahab for Respondent No.4.
Sohail Abbas for Respondent No.6.
ORDER
S. AHMED SARWANA, J.---This petition has been field basically to seek declaration that the action of respondents in increasing the Cattle/Bakra Peeri Fee of the Cattle Markets over and above the Schedule of Rates prescribed by Notification No.BQT/GEN-635 dated 31-5-2002 in respect of Bin Qasim Town and Notification VD/PS/86/2000 dated 11-3-2000 in respect of City District Government Karachi, are without lawful authority, mala fide, arbitrary and colourable exercises of powers, to restrain them from charging high rates of Cattle Entry Fee in the Cattle Peeri and order them to recover the fee strictly in accordance with the aforesaid Notification for their respective areas.
2. The brief facts giving rise to this petition are that Bin Qasim Town Council Karachi vide Resolution No.3 in its meeting dated 16-3-2002 approved the following Schedule of Rates in respect of Cattle/Bakara Peeri Fee which was published in Sindh Government Gazette dated 31 May, 2002.
(I)
Camel
Rs.10 per animal
(II)
Cow/Bufallo
Rs.5 per animal
(III)
Goat/Sheep
Rs.2 per animal
3. Similarly, after following the required procedure the Administrator Karachi Metropolitan Corporation (now Nazim City District Government Karachi/Respondent No.2) notified the following revised rates of Cattle Peeri Fee with effect from 5-3-2000 vide Sindh Government Notification dated 11th March, 2000 as follows:--
(1)
Goat/Sheep etc.,
Rs.1 per animal
(2)
Cow/Bufallo/Bull
Rs.3 per animal
(3)
Camel
Rs.4 per animal
4. It is alleged that the Nazim, Bin Qasim Town (respondent No.3) increased the Cantle Peeri Fee and advertised the contract for collection of the increased fee in the Daily Jang of 21st January, 2003 at the rate of Rs.100 per animal for Camel, Cow or Bufallo and Rs.30 per animal for Sheep or Bakra which contract was alleged to have been given to respondent No.4. It is further alleged that similarly Nazim City District Government Karachi (respondent No.2) increased the rates for Camel from Rs.4 to Rs.150, for Bufallo/Cow from Rs.3 to Rs.150 and for Goat/Sheep from Rs.1 to Rs.50 per animal. The petitioner asserted that enhancement of the fee was carried out without following the procedure provided in Sindh Local Government Ordinance, 2001 (SLGO). In view of the fact that the Fee had been increased for the period of Eid-ul-Azha only the Court on 28-1-2003 issued pre-admission notice of the petition to all the respondents for 30-1-2003. The counsel for the contesting respondents sought time to place documents before the Court to show that the formalities required under section 116 of the SLGO, 2001 were complied with before the fee was increased and the contracts for collection of the same were executed. The request was allowed and the matter was adjourned to 31-1-2003.
5. On 31-1-2003 Mr. Nawaz Shaikh, learned counsel for respondent No.3 (Nazim, Bin Qasim Town) appeared and vehemently contended that the collection at the enhanced rate was in accordance with law as it was levied after proper resolution had been passed for the period relating to Eid-ul-Azha. He also urged that the petition was not maintainable as adequate alternate remedy under section 190 of the Sindh Local Government Ordinance, 2001 was available. He added that the petitioners had challenged the contract of recovery fee which requires investigation of facts which could not be done in a petition filed under Article 199 of the Constitution. Mr. Manzoor Ahmed, learned advocate for respondent No.2 and Mr. Abbas Ali, learned Additional Advocate -General frankly conceded that the procedure laid down under section 116 of the Sindh Local Government Ordinance, 2001 had not been followed. As far as the case of Municipal Administration Bin Qasim was concerned Mr. Abbas Ali produced a copy of the Gazette dated 15-8-2002 containing the Corrigendum issued by the Nazim, Town Bin Qasim, Municipal Administration, for rectification and correction of the typing error as follows:--
"In partial modification of Gazette Notification No.BQT/GEN/635 Karachi dated 31st May, 2002 Schedule of Taxes the following may please be rectified and corrected as typing error.
(V) Fee For Cattle & Bakra Peeri.
(i)
Camel, Buffalo & Cow
Rs.10 per animal
(ii)
Sheep & Goat
Rs.5 per animal."
However, Mr. Nawaz Shaikh was not able to produce any document to show that his client had followed the procedure laid down in section 116 of Sindh Local Government Ordinance, 2001 for enhancement of the Bakra Peeri Fee.
6. It is well established that if any tax is levied without following the procedure laid down in the law, the High Court in its Constitutional jurisdiction is empowered to declare the same to be ultra vires the law and unenforceable. It is also well established that in an emergent situation like the present one, where the fee has been enhanced only in respect of the animals to be sacrificed in the forthcoming Eid-ul-Azha, the remedy of an appeal under section 190 of the Sindh Local Government Ordinance, 2001 is neither efficacious nor adequate. The objections of Mr. Nawaz Shaikh are accordingly rejected.
7. Mr. K.A. Wahab, learned counsel for respondent No.4 and Mr. Sohail Abbas, learned counsel for respondent No.6 the parties who had executed the contracts for collection of the Cattle Fee for Eid-ul-Azha period submitted that in case the Court came to the conclusion that the enhanced fee cannot be charged, an observation be made that their clients would be entitled to appropriate adjustment for the said period. The request of the counsel in the circumstances is reasonable.
8. In view of the above legal position and the admissions made by Mr. Manzoor Ahmed, learned counsel for respondent No.2 and Mr. Abbas Ali, learned Addl. A.-G. the petition is allowed and it is hereby ordered as follows:-
"(i) Respondents Nos.3 and 4 shall not charge Cattle Entry Fee in excess of the rates specified in Sindh Local Government Gazette dated May 31st, 2002 read with Corrigendum dated August 13, 2002, published in Sindh Government Gazette dated August 15, 2002.
(ii) Respondents Nos.5, 6 and 7 shall not charge Cattle Entry Fee in excess of the rates specified in Sindh Government Gazette dated March 11, 2000, unless the same has been modified lawfully and published in the Sindh Government Gazette for the area concerned.
(iii) It is clarified that respondents Nos.4 and 6 who have been awarded the contract for collection of the Cattle Entry Fee for Eid-ul-Azha period shall be entitled to appropriate adjustment in light of the above for the said period only".
The above are the reasons for short order dated 4-2-2003 whereby this petition was allowed.
M.H./T-52/K Petition allowed.