P L D 1990 Karachi 186 (PLP)

WAJIHUDDIN AHMED, J.‑‑Rice Export Corporation of Pakistan Limited, petitioner herein, claims to be a body corporate, exclusively owned and managed by the Federal Government. Amongst its various functions, the petitioner Corporation is stated to bring rice, within the Octroi limits of .the respondents, namely, the Karachi Metropolitan Corporation and the Union Council Darsana Channa, for the sole purpose of export, outside Pakistan, and this includes movement of rice to, from and between Keamari, Pipri and Landhi. Not only such rice but all ancillary and allied articles i.e. Rice Milling Machinery, its spares, tarpaulins, dunnage, jute and hessian bags etc. are all stated to be the property of the Federal Government. Through letter dated 7‑9‑1982 respondent Metropolitan Corporation is alleged to have, illegally and in contravention of Article 165 of. the Constitution, demanded Octroi in relation to the referred goods and articles vesting in the Federal Government of Pakistan. Reference is made to and reliance is placed, inter alia, on a Division Bench judgment of this Court reported as Sindh Industrial Trading Estate Limited v. Central Board of Revenue P L D 1975 Kar. 128 where Noorul Arfin, J., speaking for the Court, observed that the income of the Sindh Industrial Estate Limited, being a body corporate, discharging duties and performing functions of the province, was exempt from the payment of Income Tax, its income being the income of the Provincial Government. Such view was affirmed, on appeal, by the Supreme Court of Pakistan in Central Board of Revenue v. S.I.T.E. P L D 1985 S C

97. These citations may not be helpful to the petitioner here as, in the first place, it is not income of the Federal Government, which is sought to be taxed by the respondents and, further, on insertion of Article 165‑A in the Constitution of Pakistan, the law, with regard to taxing of income of Corporations, regardless of the ultimate destination of such income, may require to be considered but whether or not Article 165‑A has overtaken the effect of the aforequoted authorities is a question, on which we would not like to express ourselves, one way or the other, as that question can arise in some other context and in some other proceedings, for which it must be left open.

2. The case of the respondents is that, pursuant to another case of this Court, covered by Constitution Petition No.D‑454/81: Trading Corporation of Pakistan v. Municipal Commissioner K. M. C. and. others, disposed of on 25‑5‑1981, it has been found that the Trading Corporation of Pakistan Limited, functioning and liable to the same incidents as the petitioner in these proceedings, is not entitled to any exemption,' available to the Federal Government under Article 165 of the Constitution of Pakistan, and that Octroi could be recovered from it. Such view is shown to have been affirmed, on appeal, in the Supreme Court of Pakistan, as reflected in Order dated 24‑4‑1982 of that Hon'ble Court in C.P.S.LA No. 170 of 1988. We also find that in Constitution Petition No.D‑1584/80: Rice Export Corporation of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and others, another Division Bench of this Court, repelling the contention of the present petitioner itself that it was a limb of the Government and could not be considered to be an industrial undertaking, held that the direction to the petitioner to establish Workers' Participation Fund was lawful and could not be taken exception to. Such view, also, was approved in the Supreme Court of Pakistan, in Civil Appeal No. K‑122/1983, decided on 12‑1‑1986, but that decision is essentially grounded on the concept of an "industrial undertaking".

3. The factual position in this case seems to be that the petitioner Corporation was constituted 'and incorporated with the objects claimed in the petition and apart from the Memorandum and Articles of Association, brought on record, there are a good number of 'other documents, which support pleas in that context. It is also clearly established that similar functions, prior to their assignment to the petitioner corporation, were being performed by the Director General Food in the Ministry of Food and Agriculture, Government of Pakistan. The question, therefore, is whether exemption, under ‑ Article 165 of the Constitution can be claimed by the Rice Corporation of Pakistan and, if so, in what manner and form. 1t would be advantageous to reproduce hereunder Article 165 of The Constitution of Pakistan:‑‑ "165. (1) The Federal Government shall not, in respect of its property or income, be liable to taxation under any Act of a Provincial Assembly and, subject to clause (2), a Provincial Government shall not, in respect of its property or income, be liable to taxation under Act of Majlis‑e?-Shoora (Parliament) or under Act of the Provincial Assembly of any other Province. (2) If a trade or business of any kind is carried on by or on behalf of the Government of a Province outside that Province, that Government may, in respect of any property used in connection with that trade or business or any income arising from that trade or business, be taxed under Act of Majlis‑e‑Shoora (Parliament) or under Act of the Provincial Assembly of the Province in which that trade or business is carried on. (3) Nothing in this Article shall prevent the imposition of fees for services rendered."

4. As adverted above, we are not inclined to say anything in this petition about the income of the Corporation, for that is a question, in relation to which the implications in Article 165‑A may have to be considered. Nor is that question agitated in this petition. However, what remains to be examined is whether the property or assets belonging to the Rice Corporation of Pakistan, as spelled out in this petition, though literally and ostensibly belonging to such Corporation, vest, in reality, in the Federal Government. This we say because, while the Rice Corporation maintains that all such assets vest in the Federal Government and it is only entitled to a commission of a mere Rs. 2 per maund upon rice export, such position is denied and disputed by the respondents. Disputed questions of fact, subject to well‑established exceptions, cannot be gone into in constitutional jurisdiction and, not desiring to go into that controversy, we proceed on the assumption that such assets do vest in the petitioner Corporation. Still, question remains as to what precisely does the petitioner Corporation stand for or represent? As pointed out in Re: Sindh Industrial Trading Estate Limited ibid. and approved by the Supreme Court of Pakistan, in appropriate cases, the veil of incorporation can be lifted to confront the realities. Adopting this course, on examination of the record as a whole, which includes Memorandum and Articles of Association of a company, limited by guarantee of Federal functionaries, memoranda, certificates; correspondence etc. very much in the same way and fashion as S.I.T.E in the case of that title, it is clear to us that what, in appearance, belongs to the petitioner Corporation, in the way of assets and property, really vests in the Federal Government and that the petitioner Corporation, not unlike many others of this genus, is essentially performing functions covered by the wide field of activity permissible to the Federal Government under the Constitution of Pakistan. A modern State is no longer restricted to the conventional functions of the State and by sheer force of circumstances and concommitant responsibilities, is called upon to undertake a vast spectrum of activities, in consonance with the march of times. In our view, therefore, what may pass or figure as assets or property of the petitioner Corporation are in substance those of the Federation of Pakistan. The above? referred case of the Rice Corporation of Pakistan as to Workers' Participation Fund is distinguishable as a limited question was involved therein and the Court was not called upon to pierce through the veil of incorporation, in the context of its property.

5. If the property of the Rice Corporation of Pakistan can thus be termed the property of the Federal Government that Corporation is clearly entitled to the exemption germane to the property of the Federal Government, as spoken of in Article 165 of the Constitution and is not liable to taxation, as regards such property, under an Act of a Provincial legislature. Sindh Local Government Ordinance, 1979, whereunder the Municipal Committees Octroi Rules, 1964, appear to have been continued, cannot be utilised so as to impose the burden of a tax on the property of the Federal Government. Respondents' claims of Octroi against the petitioner Corporation cannot thus be sustained. 6.? However, this alone should not result in the grant of the petition.

7. In the first place, it is urged by Mr. S.M. Muslim Naqvi, for the respondent No.l, that the petitioner has not exhausted all the remedies provided under law and the rules and has approached this Court for a relief, of general character, merely on issuance 9f notice. We do not agree. Normally, remedies by way of representations, appeals etc. have to be exhausted before an approach to this Court is made under Article 199 of the Constitution of Pakistan. However. where an action or threatened action is manifestly without jurisdiction no remedy, for seeking of relief, can be adequate and constitutional jurisdiction can be resorted to straightaway. Exemption under Article 165 of Constitution being clear and unambiguous any unwarranted incursion can only be without jurisdiction. This petition is, therefore, maintainable.

8. Another aspect of the case, however, has to be differently approached. Respondents say that previous to the present grievance the petitioners were availing of the facilities under rule 83 of the Octroi Rules by way of "temporary retention" and were, from time to time, issued due permissions in that behalf, which continued upto 30‑6‑1977. They have, of their own choosing, refrained from continuing to avail that facility. They insisted for a total exemption and complete freedom of movement. While we accept the contention of Mr. Arif Hussain, for the petitioner, that the goods and articles of the Rice Corporation of Pakistan are exempt from the regours of taxation under Article 165 of the Constitution, we 1 cannot disagree with Mr. S. M. Muslim Naqvi that absolute and unbridled freedom is not what is contemplated under Article 165 of the Constitution. If that were so, the result can patently be possible misuse and even evasion of taxes in cases where the same may he lawfully due.

9. We are, therefore, of the view that Article 165 of the Constitution is to be so interpreted as to harmonise with the exiting law, if such law does not detract from the immunity conferred in that Article. Thus, if the law and rules framed thereunder only provide safeguards in procedure, so as to ensure, on the one hand, due guarantee against unwarranted taxation and plugging of 'oopholes, correspondingly, the same are to be given effect to. 1n that behalf, we find that under rules 35 and 91, the petitioner Corporation can seek warehousing facilities. Similarly, under rule 137 due certificates can be produced by the Federal Government for the movement of each consignment of goods, as conjunctively provided in Appendix 'C' of the Municipal Committees Octroi Rules 1964. We overrule the objection of the respondents that rule 137 read with clause 3 of Appendix 'C' of such rules is not applicable because the goods and articles in I question are not "intended for official use only". Such interpretation is erroneous. The word "use", occurring in the rule, has very broad connotations and means and signifies any advantageous purpose to which a thing can be applied or the fact of serving that purpose. Rice and ancillary or allied articles serve the purposes, E which the Federal Government lawfully intends them to serve. Indeed, in Chaudhry Brothers v. Peoples Municipality, Kotri 1980 CLC 2026 a more or less, similar view was taken by a Division Bench of this Court comprising of Zaffar Hussain Mirza and B.G.N. Kazi, JJ., to which view we respectfully subscribe.

10. Accordingly, while the petitioner, inter alia, also seeks determination that the Municipal Committee Octroi Rules, 1964, do not apply to it or that rule 137 read with Clause 3 of Appendix 'C' is bad law that finding does not arise and this petition is only allowed to the extent the respondents shall not give effect F to the Sindh Local Government Ordinance, 1979, and the Municipal Committees Octroi Rules, 1964, in any lawful manner and so as to impose a tax burden on the petitioner Corporation in the context of the referred goods and articles and rules 35, 91 and 137 together with Appendix 'C' of the Octroi Rules, 1964 shall be applied and given effect to in consonance with the views herein expressed. The petition is allowed in these terms but the grant shall not carry costs. AA./R‑114/K??????????????????????????????????????????????????????????????????????????? Petition accepted.