P L D 1956 (W (PLP)

INAMULLAH, J.‑This is a writ petition for issue of a writ in the nature of mandamus or any other appropriate writ, and arises under the following circumstances :‑ The petitioner is the owner of two trucks, which are registered at Karachi and are kept for habitual use within the Municipal limits of the City of Karachi. The petitioner has been regularly paying wheel tax on the said motor vehicles to the Karachi Municipal Corporation. The respondent, Drigh Road Cantonment Board has, after obtaining sanction from the Central Government, under section 60 of the Cantonments Act (II of 1924) by a Notification No. 107/55 published in the Gazette of Pakistan, Part III, on 4th February 1955, imposed a wheel tax on vehicles used within the limits of Drigh Road Cantonment whereby it has demanded a wheel tax for the vehicles owned by the petitioner, which the petitioner has to drive through the National Highway situated within the Cantonment Area in order to bring 'bajri' from Landhi. The petitioner has refused payment of the wheel tax demanded by the Cantonment Board on the ground that the demand of the tax on the vehicles of the petitioner, which are not kept for habitual use within its limits, is illegal. The only contention raised by Mr. Wahiduddin, the learned Advocate for the petitioner was that the demand of the tax from the petitioner was illegal as the vehicles in question were not kept "for habitual use within" the Canton ment Area. In order to appreciate the contention of Mr. Wahiduddin, the relevant provisions of law that require consideration are sections 60 of the Cantonments Act II of 1924 and section 96 of the City of Karachi Municipal Act, 1933. Section 60 of the Cantonments Act, 1924 reads as under :‑ "The Local Government may by notification in the local official Gazette, impose in any cantonment any tax which, under any enactment in force on the date of the notifica tion, may be imposed in any municipality within the Province". The Municipal Corporation is entitled under section 96 to impose certain taxes within the municipal limits. The relevant portion of section 96 is clause (a) of subsection (2), which reads as under :‑ "(2) In addition to the taxes mentioned in subsection (1), the Corporation may, for the purposes of this Act, impose any of the following taxes, namely :‑ (a) a tax at rates not exceeding those specified in Schedule II on all vehicles and animals used for riding, draught or burden and kept for habitual use within the city". Under section 60 of the Cantonments Act, 1924, the Canton ment Board is empowered to impose taxes within its limits, but it can impose taxes only to the extent that can be imposed by the Karachi Municipal Corporation. Under section 96 of the City of Karachi Municipal Act, 1933, the Municipal Corporation can impose taxes on "vehicles and animals used for riding, draught and burden and kept for habitual use within the City". Vehicles which are not kept for habitual use within the City would under subsection (2) (a) of section 96 of the City of Karachi Municipal Act clearly not be liable for taxation by the Municipal Corporation. The contention of the learned Advocate for the petitioner was that the vehicles on which the respondent‑Cantonment Board has imposed the vehicle tax are not kept for habitual use within the Canton ment Area. It is important to note that in the affidavit filed by Mr. Abdul Ghaffar Khan, Executive Officer, Drigh Road Cantonment Board, he has not alleged that the vehicles of the petitioner are kept for habitual use within the limits of the Cantonment. What has been asserted' by Mr. Abdul Ghaffar is that "the petitioner's trucks are daily and habitually plying within the Drigh Road Cantonment limits". Plying of the trucks is quite different from the truck being kept within the Cantonment limits. There are number of trucks that pass daily through the Cantonment limits while on their way to Hyderabad. These trucks though can be said to be habitually passing or plying through the Drigh Road Canton ment limits, but cannot be said to be habitually kept for use within the Cantonment limits. The contention of Mr. Raymond, the learned Advocate who appears for the respondent was that, on the correct interpretation of section 60 of the Cantonments Act II of 1924, all that has to be seen is whether vehicles are taxable by the Karachi Municipal Corporation or not. His conten tion was that under clause (a) of subsection (2) of section 96 of the City of Karachi Municipal Act, 1933, vehicles are taxable, and therefore, the demand of wheel tax by the Cantonment Board on the vehicles of the petitioner is not illegal. The contention, in short, of the learned Advocate for the respondent comes to this that, for the purposes of section 60 of the Cantonments Act, 1924, only the heads of items which are taxable under clause (a), subsection (2). of section 96 of the City of Karachi Municipal Act, 1933, have to be seen, and not the condition or qualification mentioned therein. There is not much force in the contention of the learned Advocate for the respondent. The relevant words of subsection (2) (a) of section 96 of the City of Karachi Municipal Act, 1933, which require consideration are these :‑ "a tax at rates . . . . . on all vehicles and animals used for riding, draught or burden and kept for habitual use within the city". If the contention of the learned Advocate for the respondent were accepted and the qualification and condition imposed on animals which can be taxed by the Municipal Corporation were taken away, all animals including cats, lions, dogs, which are not animals used for riding, draught or burden, can be taxed by the Municipal Corporation under section 96 of the Act. In our opinion, the wording of section 60 of the Cantonments Act is very clear, and does not admit of any such argument as advanced by Mr. Raymond, the learned Advocate for the respondent‑Cantonment Board. Under section 60, the respondent‑Cantonment Board can impose only that tax which can be imposed by the Municipal Corporation of Karachi. The Municipal Corporation Karachi can impose tax only on those vehicles which are kept for habitual use within the City, and not on all vehicles. The Drigh Road Cantonment Board is also subject to the same condition in imposing taxes on vehicles as the Karachi Municipal Corporation is. The wording of section 59 (ii) of the Bombay District Municipal Act 1901 is similar to the provisions of section 96 of the City of Karachi Municipal Act, 1933. A question arose as to the interpretation of section 59 (ii) of the Bombay District Municipal Act, 1901 in the case of the Surat City Municipality v. Manekal Ichhara & Co., (22 B L R 1104). In that case, the plaintiffs owned carts and bullocks for carrying out their business. They kept their carts and bullocks at Nowagam, a place outside the limits of Surat Municipality. In the course of business, the carts and bullocks used to ply in the Municipal limits. The Municipality claimed wheel tax on those carts. It was held by a Division Bench of the Bombay High Court in that case that "a vehicle which is kept outside but plies for hire inside a Municipal District is not liable to pay wheel tax under section 59 (ii) of the Bombay District Municipal Act, 1901". A similar question arose in the case of Bandra Municipality v. The Burmah Shell Storage Distributing Company of India Limited (40 B L R 111). In that case "kept for use" was interpreted, and it was held that as the lorries on which Bandra Municipality sought to impose wheel tax were not kept within the limits of that Municipality, the Municipality was not competent to claim a tax. We have, after considering these cases, and the provisions of section 96 of the City of Karachi Municipal Act, 1933, come to the conclusion that the trucks of the petitioner not being kept for habitual use within the Cantonment Area, the respondent has no legal right‑to impose any wheel tax on the petitioner's trucks. We would, for the reasons given above, issue a writ of mandamus directing the respondent not to claim wheel tax on the trucks of the petitioners so long' as they are not kept for habitual use within the Drigh Road Cantonment area of the respondent. A.H. Mandamus issued.