1983 PLP 1543 (CLC)

This is an application filed by the defendants under Order XXXIX, rule 4, C. P. C. read with section

151. C. P. C. 'praying therein for modification of the conditional order of injunction granted on 13th December, 1982 on an application filed by the plaintiff/Contractor under Order XXXIX, rules 1 and 2, C. P. C. (C. M. A. 5192/82), in respect of his right to recover octroi duty on goods imported by defendant No. 2 in limits of defendant No. 1 Union Council.

2. While disposing of the plaintiff's above application (C. M. A. 5192/82) on 13th December, 1982 the learned Court observed : "That it will be open to defendant No. 2 to move the Court for modifi cation of this order in case the Government or the competent Autho rity in this behalf passes any further order in this regard."

3. It is contended by Mr. Khalid M. Ishaque the learned counsel for the defendants (namely (1) Union Council (Kathore) Darsana Channa and.(2) Karachi Electric Supply Corporation) that by the Notification dated 1st January, 1983 published in the Sind Government Gazette, the Government of Sind, in exercise of the powers conferred by clause (c) of subsection (1) of section 62 of the Sind Local Government Ordinance, 1979, directed the Union Council Darsana Channa to :‑ ". . suspend until further orders the octroi tax leviable on the goods imported within the limits of the council by Messrs Pakistan Steel Mills and Karachi Electric Supply Corporation."

4. In view of the above Notification the learned counsel for the defen dants argued that the order passed on 13th December, 1982 is liable to be modified and/or varied and it be directed/held that the defendants No. 2 are not liable to pay and that the defendant No. 1 .(Union Council) and for that reason its contractor/the plaintiff is not entitled to' demand or recover any octroi duty on the imported goods for consumption, use and sale in the territorial limits of Union Council Darsana Channa (Kathore), Karachi (East).

5. Mr. Khalid Anwar the learned counsel for the plaintiff submitted that under section 60 of the Sind Local Government Ordinance, 1979 (as amended) by defendant No. 1 namely Union Council Darsana Channa, is entitled to levy in the prescribed manner all or any of the taxes, rates and fees mentioned in the Schedule VI. It was further argued that in view of Sind Ordinance VII of 1982 unless after the issuance of the above‑mentioned Notification dated 1st January, 1983 a further Notification was issued under subsection (2) of section 62 of the Ordinance, 1979, by the Union Council Darsana Channa giving effect to the said direction of the Government, it could not be argued by the defendants that the collection of the octroi duty by the plaintiff stood suspended.

6. I have considered the above ,arguments and find that prima facie the defendants have been able to make out a case that the Government of Sind in exercise of the powers under subsection (1) of section 62 of the Ordinance, 1979 has lawfully suspended the levy/collection of octroi duty on the goods imported by defendants No. 2 within the limits of defendant No. 1 Union Council. It would be seen that under subsection (2) of section 62 which is reproduced below, defendant No. 1, Union Council is bound to comply with the direction given by the Government of Sind. Subsection (2) of section 62 (as amended) reads as follows :‑ "(2) If the direction is issued under subsection (1) the Chief Executive of the Council shall notwithstanding anything contained in this Ordinance, give effect to it by' issuing a Notification in terms of the direction not later than the date, if any, specified by Government in this behalf " . Mr. Khalid Anwar the learned counsel for the plaintiff however 'con tended that no Notification in terms of subsection (2) above reproduced, has yet been issued by the Chief Executive of the Council and thus it cannot be, said that effect has been given to the direction issued by the Government. Mr. Khalid Ishaque the learned counsel for the defendants however sub mitted that since the direction issued .by the Government of Sind vide Noti fication dated 1st January, 1983 referred to above, is binding upon the defendant No. 1 /Union Council and that the Union Council is a party to this application for the modification of earlier order dated 13th December, 1982 and that in the present application supported by the affidavit filed on behalf of the Union Council. it has been conceded by 'the said Union Council that in view of the said Notification it is bound in law to suspend the levy of octroi tax on the goods imported within its limits by defendant No. 2 and that ‑notice of their application has been served upon the plaintiff, the formality of the Notification required to be given to the plaintiff stands complied with. In my opinion at this stage while dealing with an interlocutory appli cation, I am not called upon to finally decide the question raised by the learned counsel for the parties, as to the validity of the. Notification or right of the plaintiff to collect the octroi duty notwithstanding the directions given by the Government to suspend the levy of octroi duty on the goods imported by defendant No. 2 in the limits of defendant No.

1. However finding that the defendant No. 1 is bound to give effect to the direction given as per Gazette Notification. and the Union Council having conceded to this Notifi cation and has joined in the application for suspension of the levy on goods imported by defendant No. 2 in its limit, it is a fit case prima facie for holding that the order of 13th December, 1982 is liable to be modified as prayed and thus suspend for the interim period the levy and recovery of octroi duty from defendant No.

2. The question of giving a further notice to the plaintiff, even after service of notice of application with definite stand taken‑by defendant No 1, could be considered at the final trial of the suit. I am further of the view that the plaintiff is neither likely to be prejudiced nor would suffer any irreparable, loss as it would be always open to the plaintiff to recover the octroi duty from defendant No. 2, if he ultimately succeeds.

7. In view of the above discussion and with the clarification that any observation made hereinabove would not prejudice the rights of the parties at the final trial of the suit the order dated 13th December, 1982 passed on C: M. A..No. 5192/82 shall stand varied and modified and it is accordingly ordered/directed that the plaintiff is not entitled to levy or collect octroi tax on the goods imported within the limits of the Union Council Darsana Channa by defendant No. 2/Karachi Electric Supply Corporation till further orders. Defendants No. 2 are however directed to file fortnightly statements of accounts with the Nazis showing the goods imported by them within the limits of defendant No.‑1/Council. Copies of these statements shall also be supplied to the Advocate for the plaintiff. Subject to the observations as above, this application stands disposed of. K. M. A. Application disposed of.