1991 PLP 1492 (MLD)

S.137 & Second Sched., Part 1

Entry 12

Imposition of tax/levy of octroi duty

Local Council has the power, independently of the direction of Government to levy the tax/octroi on import of goods within its territorial jurisdiction. (i) Punjab Local Government Ordinance (VI of 1979)

S.137

Punjab Local Councils (Taxation) Rules, 1980, R.4

Constitution of Pakistan (1973), Art.199

Constitutional jurisdiction

Raising of new plea-- Effect

Raising of new plea/argument being factual in nature, during course of argument could not be raised for the first time in Constitutional jurisdiction-- Imposition of tax /levy of octroi duty being valid, Constitutional petitions were dismissed in circumstances. Ata-ur-Rehman Sheikh for Petitioner. Ch. Din Muhammad for Respondents Nos.l and

2. Asif Saeed Khosa for Respondent No.3. Irfan Qadir, Rana Muhammad Arshad, Addl. A.-G. and Muhammad Iqbal Vehnimal for Respondents Nos. 4 and

5. Date of hearing: 2nd April, 1991. This judgment shall dispose of Writ Petitions Nos.1306/91, 1879/91, 2128/91, 2132/91, 2248/91, 2194/91, 2197/91 and 2229/91 in which common questions of law and facts arise for determination.

2. By means of a notification dated 1-1-1991, Union Council Kamahan respondent No.1, a Local Council constituted under the Punjab Local Government Ordinance, 1979, levied import tax (octroi duty) on the goods brought into the territorial limits of the union council concerned. The validity of this notification and the levy of tax has been challenged by the petitioners by filing these petitions on various grounds stated therein.

3. It may be mentioned that earlier an exercise was undertaken by the union council by issuing a notification on 21st of July, 1990, which was challenged by certain persons including the petitioners by filing Constitutional petitions in this Court which were accepted on 30th of October, 1990 primarily on the ground that procedure prescribed by Rule 4 of the Punjab Local Council (Taxation Rules), 1980 was not followed particularly the notice contemplated by Rules was neither issued nor published in the prescribed manner. After the acceptance of those petitions the notification now impugned in these petitions was issued.

4. Mr. Jehangir A. Jhoja, Advocate appearing on behalf of the petitioner in W.P. No.2197/91 submitted that the public notice issued by respondent No.1, was not in accord with Rule 4 of the Punjab Local Council (Taxation Rules) 1980 inasmuch as the details of articles on which the tax was sought to be levied have not been specified in the notice nor the classes of persons liable to pay the tax have been enumerated. It was also pointed out that neither the amount of tax nor he system of taxation, has been fully described in the notice. Syed Fayyaz Hussain Qadri, the learned counsel for the petitioners in W.P. Nos.2128/91 and 2132/91 besides adopting the arguments of Mr. Jehangir A. Jhoja, Advocate contended that no sub-Committee was constituted by the union council to hear the objections to the proposed tax and as such the imposition of tax is violative of Rules 5, 6 and 7 of the Punjab Local Council (Taxation) Rules, 1959. Sardar Mashqoor Ahmad, the learned counsel representing the petitioner in Writ Petition No.2248 of 1991 argued that the permission granted by the Government to the union council to levy octroi tax has since been withdrawn and, therefore, no jurisdiction was vested in the respondents to levy any octroi duty. Mr. Ata-ur-Rehman Sheikh, Advocate, for the petitioner in Writ Petition No.1306 of 1991 also addressed similar arguments.

5. In reply to these arguments it was submitted by Sardar Asif Saeed Khan Khosa appearing on behalf of respondent No.3 that the procedure for levying the tax prescribed by the Punjab Local Council (Taxation) Rules, 1980 was strictly followed and all requirements have been complied with. The learned counsel also raised three preliminary objections to the maintainability of these petitions viz. that the petitioners have no locus standi to file the present petitions; that they were estopped by their conduct from filing the present petitions and thirdly that an alternative remedy existed in the form of filing a petition before the Government as contemplated by Sections 153 and 156 of the Punjab Local Government Ordinance., 1979, these petitions were not maintainable. Mr. Irfan Qadri Addl. Advocate-General representing the Government has also been heard in reply.

6. The preliminary objections raised by Mr. Asif Saeed Khosa, Advocate do not have any force. As regards the locus standi of the petitioners, the Supreme Court of Pakistan in the famous case of Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, was pleased to rule that the right considered sufficient for maintaining a Constitutional petition need not be necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he has a personal interest in the performance of a legal duty which if not performed or performed in a manner not permitted by law would result in loss of some personal benefits or advantage or the curtailment of a privilege or liberty or franchise. According to the petitioners they have been made liable to pay octroi duty/import tax on the articles being brought by them into the territorial limits of the Union Council concerned. They arc as such clearly persons aggrieved within the meaning of Article 199 of the Constitution. The reliance of the learned counsel for the petitioner on the case of Bannu Sugar Mills (Pvt.) Ltd. v. Inspector Customs and 2 others (1990 C L C (Peshawar) 569), is not apt, for that case, is distinguishable on facts and arose, under the Central Excise and Salt Act, 1944 and the dispute was with regard to the withdrawal of exemption granted under the Act. So far as the question of estoppel is concerned the arguments of the learned counsel have not impressed me. It is to be seen that many persons including some of the petitioners objected to the levy of the tax by filing objections. Furthermore, according to the case of the petitioners, no sub -Committee was ever formed to hear the objections the questions of estoppel, therefore, does not arise. As regards the third preliminary objection suffice it to say that this aspect was examined in detail by-this Court in its earlier judgment in Glaxo Laboratories (Pakistan) Ltd. v. Union Council, Dulu Khurd through Chairman and 4 others (1991 C L C 354). Section 153 of the Punjab Local Government Ordinance cannot be considered to be an equally efficacious remedy within the Article 199 of the Constitution of Islamic Republic of Pakistan.

7. Now adverting to the merits after hearing the learned counsel for the parties and persuing the record with their assistance, I am of the view that objections as the validity of the tax imposed by respondent No.1 are without any force. The main contention of the learned counsel for the petitioners was that the rate of the proposed tax had not been specified in the public notice published in `Daily Nawa-i-Waqt of 10th of November, 1990. Though this argument is correct to the extent it goes but as the notice in question specifically stated that the rates are enumerated in the schedule available for inspection in the office of the Union Council. According to section 174(u) of the Punjab Local Council Ordinance, 1979 public notice can he published either by publication in the newspaper or by off fixing it on the Notice Board of the union council. In the present case it appears from the proceedings recorded by the sub-Committee, on 23rd of December, 1990 that apart from publication in the newspaper the notice was also affixed on the Notice Board of the Union Council alongwith the schedule. That being so the requirements of Rule 4 were sufficiently complied with. The other objections raised by the learned counsel for the petitioners are inconsequential and tantamount to making fetish out of technicalities. The notices issued by the respondent in this behalf substantially complied with the requirements of rule 4 of the Ordinance and are not open to any serious objection.

8. The contention of the learned counsel that no sub-Committee was formed to hear the objections is belied by the record which not only shows that a sub-Committee comprising of the Chairman and four other members was constituted but also that the seven objections which had been received were given due consideration by the Committee in its meeting held in its meeting on 23rd of December, 1990. The matter was then placed before the house on 26th of December, 1990 which after discussion agreed with the report of the local council and decided to impose the tax. It was thereafter, that the notification impugned in this petition was issued.

9. Mr. Ata-ur-Rehman Sheikh, Advocate objected that the date from which the tax was to be levied was not mentioned in the notice. There is however no such requirement, in the Rules but as contemplated by Rule 9(2), the taxation proposals sanctioned by the local council are to come in force or) and from such date as may be specified in the notification. In the present case the notification dated 27th of December, 1990, provides for imposition the tax with effect from 1st of January, 1991.

10. In the last it was urged on behalf of the petitioners that the register produced before this Court in order to show that all the formalities were duly complied with has been fabricated by the respondents with a view to frustrate the present proceedings. This argument raises a disputed question of fact and cannot be examined in the present proceedings. The contention raised by Sardar Mashqoor Ahmad, Advocate may also be attended to. 1t is agreed that at one time, the Provincial Government had directed the Union Council to impose the octroi duty. This notification was withdrawn by the Provincial Government. The fact remains, that the local council under section 137 of the Punjab Local Government Ordinance, 1979, read with Entry 12 of Part 1 of the Second Schedule has a power independent of the direction of the Government to levy the tax on the import of goods.

11. At the fag-end of the case Mr. Fayyaz Hussain Qadri, Advocate wanted to raise a new argument i.e. 'that Entry 12 of the Schedule a tax can be levied only on import of goods meant for consumption, use or sale. According to the learned counsel as the petitioners were importing goods neither for use nor for consumption or sale but only for storage, the imposition of duty was bad in law. As the dispute raised, is factual in nature and no such plea was taken in the petition itself, it is not open to the petitioners to urge it for the first time, during the course of arguments being addressed by the learned counsel in reply to the arguments of the learned counsel for the respondents. For the foregoing reasons these petitions fail and are dismissed without any order as to costs. AA./D-74/L Petitions dismissed.