ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.D- 2432/2008

Date Order with signature of Judge

1. For Katcha Peshi

2. For hearing of Misc. No. 1158/08

16^th February, 2010

Mr. I.H. Zaidi Advocate for the petitioner

Mr. Shaikh Riaz Advocate for the CDGK

Mr. Nadeem Farooqui Advocate for the Town Nazim,

Gulshan-e-Iqbal Town, Karachi

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GULZAR AHMED, J.: The petitioner has impugned the notification No. GIT/NAZIM/TAX/99/ 2008 dated 06.2.2007 published in Gazette of CDGK No. DO/Press/Part-III/0014/08 dated 16.4.2008 by which the Town Municipal Administration, Gulshan-e-Iqbal, Karachi in terms of Rule 7 of the Sindh Local Government (Imposition of Taxes) Rules 2001 has notified the levy of fees on marriage halls/lawns.

Learned counsel for the petitioner has contended that community hall of the petitioner is not being used for commercial marriage purposes rather it has a library, reading room and community functions are held in it for no charge and occasionally the society allows holding of marriage functions to its members on a nominal charge and not on commercial basis. He further contends that proposal for levying of fee of Rs.1000/- per marriage function was published in daily Jang Karachi dated 08.11.2007 by the Town Local Government, Gulshan-e-Iqbal, Karachi but instead by the impugned notification the Town Nazim, Town Local Government, Gulshan-e-Iqbal, Karachi has sanctioned the rate on marriage halls/lawns upto 600 Sq.Yards Rs. 10,000/- per month and from 600 Sq. Yards to 1000 Sq. Yards Rs.15,000/- per month and more than 1000 Sq. Yards Rs. 20,000/- per month. He stated that the impugned notification containing such sanctioned rates is totally illegal as no proposal in respect of sanctioned rates was ever published.

Mr. Nadeem Farooqui Counsel appearing for the Town Nazim, Gulshan-e-Iqbal Town contended that marriage functions are being held at community centre of the petitioner and that it is liable to pay the rates as claimed by the respondent No.2. On the point, as to how the amount of levy has been changed from that of proposed one of Rs.1000/- per marriage function to that of sanctioned rates, he has placed on record a resolution No. 305 dated 02.10.2007 of Town Council, Local Government Gulshan-e-Iqbal by which the proposal of levying of fee of Rs. 1000/- on marriage halls/lawns per marriage function seems to have been approved.

Section 116 of the Sindh Local Government Ordinance, 2001 provides that a council may levy taxes cesses, fees, rates, rents, tolls, charges surcharge and levies specified in the 2^nd schedule with proviso that the Government shall vet the tax prior to the approval by the concerned Council with further proviso that the proposal shall be vetted within thirty days from the date of receipt of proposal failing which it would be deemed to have been vetted by the Government and no tax shall be levied without previous publication of the tax proposal and after inviting and hearing public objections and a council may subject to the provisos increase, reduce, suspend, abolish or exempt any tax.

The impugned notification has some intriguing features which have not been explained. The first is notification’s date itself which shows that it is dated 06.2.2007 whereas in gist of notification reference has been made to the resolution No. 305 dated 02.10.2007. If the notification is considered to be dated 06.2.2007, it could not have contained reference to resolution No. 305 dated 02.10.2007 as on the date of notification no resolution to that effect could have existed. There is thus no rational in the date of notification and number and date of resolution mentioned in the notification.

However, the perusal of the notification shows that it is based upon the resolution No. 305 dated 02.10.2007 and such notification has been issued by Muhammad Wasay Jalil, Town Nazim Town Municipal Administration, Gulshan-e-Iqbal, Karachi notifying the levy of fees on marriage halls/lawns as follows:

NATURE OF MARRIAGE HALL/LAWN	PROPSED RATE	SANCTIONED RATE
Marriage Halls/Lawns up to 600 Sq.yds	Rs.1000/- per Function	Rs.10,000/- per month
Marriage Halls/Lawns from 600 Sq.yds to 1000 yds	- do -	Rs.15,000/- per month
Marriage Halls/Lawns more than 1000 Sq.yds	- do -	Rs.20,000/- per month

As noted above, the Town Local Government, Gulshan-e-Iqbal, Karachi has proposed levying of fee of Rs. 1000/- per marriage function on marriage halls/lawns in the jurisdiction of Gulshan-e-Iqbal Town and through resolution No. 305 dated 2.10.2007 the Town Council, Local Government, Gulshan-e-Iqbal has approved such proposal. The proposal that was published in daily Jang dated 08.11.2007 and the resolution No. 305 dated 02.10.2007 of the Town Council, Local Government, Gulshan-e-Iqbal, Karachi did not contain reference to the nature of marriage halls/lawns nor did it contain sanctioned rates as are reflected in the impugned notification. The impugned notification apparently is in contradiction of the proposal and the resolution referred to above and seems to have been unauthorisedly made.

As noted above, the provision of section 116 of the Ordinance only empowers the council to levy tax, cesses, fees etc. and it is only the council who is empowered to increase, reduce, suspend, abolish or exempt tax. The Town Nazim in terms of law as noted above has no power whatsoever to cause any variation in the resolution passed by the council rather the Town Nazim was required to issue the notification in accordance with resolution which was passed by the Town Council, Local Government, Gulshan-e-Iqbal, Karachi. Thus it appears that the Town Nazim, Town Municipal Administration, Gulshan-e-Iqbal, Karachi has imposed his own rates on marriage halls/lawns without any sanction from the Town Council, Local Government, Gulshan-e-Iqbal, and the act of Town Nazim of issuing the impugned notification is without any authority of law and of no legal effect and is liable to be set aside and the petition stands allowed to this extent. Listed application is also disposed off.

It may be noted that the impugned notification was published in Gazette of Sindh Local Government Karachi dated 16.4.2008 and the same also appears to have been acted upon as the petitioner has filed with the petition two deposit challans annexure P-2 and P-3. The first challan is dated 12.8.2008 for the months of May and June at the rate of Rs. 15000/- per month total amount Rs.30,000/- with due date 20.8.2008 and second challan is also dated 12.8.2008 for the months of July and August 2008 at the rate of 15000/- per month total Rs. 30,000/-. This charging of rate on the basis of impugned notification by the Town Nazim amounts to commission of fraud and also misconduct by him upon the persons maintaining marriage halls/lawns in the jurisdiction of Gulshan-e-Iqbal Karachi and suitable measure in this regard requires to be taken.

In terms of Section 193 of Sindh Local Government Ordinance, 2001 the Town Nazim is a public servant within the meaning of Section 21 of Pakistan Penal Code, 1860 and Muhammad Wasay Jalil, Town Nazim, Town Municipal Administration, Gulshan-e-Iqbal, Karachi apparently has not only committed misconduct but also scheduled offence in terms of Sindh Enquiries and Anti Corruption Act, 1991 and accordingly the Chief Secretary, Government of Sindh is directed to take appropriate action against him and submit his report to the MIT of this Court within a period of four weeks. The Chief Secretary should also ensure that whatever recoveries have been made under the impugned notification should also be refunded to the owners of marriage halls/lawns within jurisdiction of Gulshan-e-Iqbal Karachi.

Let a copy of this order be sent immediately to Chief Secretary, Government of Sindh for making compliance.

J U D G E

Aamir/PS