P L D 1964 (W (PLP)

This matter has come before me as a result of the difference of opinion between Kaikaus, J. and Abdul Hamid, J. Kaikaus, J. was of the opinion that a person who produces energy from his generator for his own use only is as much liable to pay tax under the Sind Finance Act, 1932 as a person who consumes energy produced by a licensee. Abdul Hamid, J. was of the con trary opinion.

2. The facts giving rise to the petition are very simple and briefly put are these :‑ The petitioner Dalmia Cement Limited is a Company which manufactures cement. For the purposes of running its factory as well as for providing electric current for the office and residential premises of employees the petitioner has installed a set for generat ing electricity. On March 20, 1956, the petitioner received a notice from the Superintendent of Taxes, Karachi calling upon it to pay tax under section 5 of the Sind Finance Act, 1932. The petitioner challenged the notice and claimed that the Sind Finance Act, 1932 applies only to electricity supplied by a licensee and not to the petitioner.

3. I respectfully agree with the opinion of Abdul Hamid, J. and the reasons that he has given in support of his conclusion. It would be unnecessary to reproduce the reasons which led Abdul Hamid, J. to the conclusion with which I agree. I would endeavour to add a few grounds of my own which has confirmed me in the opinion of Abdul Hamid, J. 4. "Consumer" in the Sind Finance Act, 1932 means any person who is supplied with energy by a licensee. Under section 5 of the Finance Act, 1932 there shall be levied and paid to the Provincial Government, on the units of energy consumed for the purposes specified in the first column of the Schedule to this Part, excluding losses of energy in transmission and trans formation, a duty (hereinafter referred to as `electricity duty') at the rates specified in the second column of that Schedule. In my opinion the word "consumed" in section 5 of the Act is not of such a wide impost so as to refer to a person other than a person who is supplied with energy by a licensee. The contention that in section 7 of the Act which requires a licensee to keep his accounts not only of the energy supplied by him to consumers but even of energy which he uses himself lends support to the argument that the word `consumed' is of wider import has not much force. I do not consider that if the licensee is regarded as his own consumer it does any violence either to the spirit underlying the Finance Act or to the definition of `consumer'. A licensee who consumes energy is as much a consumer as anybody else.

5. The argument of the learned Advocate for the Superinten dent of Taxes that the Legislature in the charging section namely section 5 has enumerated the exceptions and if it was the intention to extend the exception to persons who generated energy for their own consumption it would have been so done. In the first place but for the exception, for instance, the Provincial Government on the units of energy consumed would have been liable to pay taxes on the units of energy consumed otherwise also than in respect of premises used for residential purposes. The Provincial Government, generally speaking, is a consumer. On the other hand, it cannot be said in respect of a person who produces energy for his own use that he is supplied with energy by a licensee. In the second place, the Legislature makes exception only in the case of those who would be clearly covered by the provisions of the Act and not in respect of persons who are on the face of it not so covered by the Act.

6. The word "consumed" in section 5 of the Act has a reference to the word "consumer". "Consumer" in its dictionary meaning as given in Webster's means "a person who consumes". The rule of interpretation of a statute is that the different provisions of an enactment should be so read that they harmonise with each other. If the intention of the Legislature was to give a wider meaning to the word `consumed' it would have done so while defining `consumer'. `Consumer' in that case may have been defined as a person who consumes energy. It was unnecessary to limit the definition of `consumer' to a person who is supplied with energy by a licensee. The preamble in my opinion cannot be made use of to give a wider meaning to the word `consumed' than is deducible from the Act itself.

7. I would hold that the person on whom the incidence of tax under the Finance Act fails is a consumer within the meaning) of the Act. The petitioner is not supplied with energy by a licensee and therefore cannot be said to be a consumer liable to the incidence of tax under the Finance Act.

8. Mr. Syeed A. Shaikh, the learned Advocate for the Super intendent of Taxes, contended that the petition should be dismissed on the ground that the petitioner has prayed for a writ of prohibition which cannot be issued. There is not much force in this contention. In the first place it would appear from the orders of Kaikaus, J. and Abdul Hamid, J. that this point was not urged before them. In the second place the relief in the petition is wide enough to include a writ of mandamus. The relevant prayer in the petition reads as under:‑ "That a writ of prohibition or other suitable writ, order or direction be issued by this Honourable Court on respondents 1 and 2 or prohibiting them from levying or recovering the aforesaid amount of Rs. 75,4h2‑5‑5 on account of electric duty on the ground that they are liable for payment under the pro visions of the aforesaid Finance Act, 1932 and the demand therefore is illegal." The words "prohibiting them from levying or recovering " are wide enough to mean the issue of a writ of mandamus. It was next contended by Mr. Shaikh that the conditions for the grant of a writ of mandamus have not been made out in this case. The petitioners, it was urged, have failed to show that they had a legal right to the performance of a legal duty by the Superintendent of Taxes. The petitioner to my mind has a legal right not to pay any taxes unless liable under any enactment. The Superintendent of Taxes, on the other hand, has a legal duty not to demand taxes from persons who are not under the Finance Act liable to pay. I would therefore issue a writ of mandamus to the respondents not p to realize the tax as demanded by the letter No. S. T.- 449 of the 5th March 1957.

9. There is also a prayer for the refund of Rs. 16,931‑4‑0 which has been paid by the petitioner to the respondent No.1. it would appear from a perusal of paragraphs 11 and 12 of the petition that the petitioner paid the sum of Rs. 16,931‑4‑0 some time in 1956. The petition does not disclose the reason why the petitioner did not file the petition in 1956 against the Superin tendent of Taxes. It would however appear from the petition that the petitioners came to this Court because of a further demand by the respondent No. I by his letter dated the 5th March 1957, for a sum of Rs. 75,482‑5‑

5. If the respondent No. 1 had not made this demand the petitioner perhaps would not have come to this Court. The present petition was filed in May 1957. I would therefore, for the reason that the relief in respect of Rs. 16,931‑4‑0 is a very belated one refuse to grant any relief in respect of the same. I would, in the circumstances of the present case, make no order as to costs. K. B. A. Petition accepted.