P L D 1976 Karachi 1011 (PLP)

M. A. RASHID, J.-The petitioners in these petitions, claim that the rate of octroi, charged by respondent K. M. C., on the commodities imported by them, is higher than is chargeable under the Schedule, to the West Pakistan Municipal Committee Octroi Rules, 1964 (hereinafter referred to as the Schedule). The background of the controversy is that the petitioners in the C. P. No. 17/71, who are a taken over industry now known as Pakistan Engineering Company Limited, imported scrap iron under the authority of an import licence granted to them by the Chief Controller of Imports and Exports on 7th of Nay, 1970. This licence was for 'iron and steel re-rollable scrap. This item was imported and was transported in two separate ships namely, `s.a. Sirsa' and 's.s. Eucadia'. These two consignments arrived in December, 1970 and January 1971 respectively. The goods arriving in the first shivment per 's.s. Sirsa' were allowed to be cleared on payment of octroi at the rate of Re. 0.12 per maund, the rate at which octroi is leviable on scrap iron, under the Schedule. But when the second shipment arrived, the respondents did not allow the clearance of the goods on the payment of octroi at that rate. Instead, the petitioners were called upon to pay octroi at the rate of 0.25 paisas per maund declaring that the goods did not fall within the category of scrap steel and that they were heavy iron plates. In the other three petitions, the petitioners had imported iron and steel re-rollable and re meltable scrap but in view of the experience in the earlier consignment they approached the Municipal authorities, before the goods were to pass through the octroi post, to indicate the rate at which they would be charged for octroi. In Petition No. 261/72, the letter from the petitioners dated 26th June, 1972 was as follows : "We are sending here with Invoice No. 7224 dated 1-5-1972 of Messrs Hugo Neu & Sons International Sales Corporation, 45, Nassau Str. New York, pertaining to shipment of 15,077.2 Ton Iron & Steel Scrap per 's.s. Atlantic Mermaid', and request you to kindly let us know the rate of octroi chargeable on the said item so that the goods may be cleared in time." On the body of this letter the reply was given by the Assistant Octroi Superintendent, K. M. C., which is as follows :- "The party says that goods have not arrived as yet. The party produced Bill of Entry the endorsement of custom is as under : (1) Plates-Thickness 3/8"-3' to 20' long. (2) In cold plate scrap. (3) Structural steel up to 5 feet. (4) Heavy Melting steel 60 x 24 . The goods are chargeable at Re. 0.25 per md." In Petition No. 76/73 the following letter was written "As you are aware we imported Iron & Steel scrap for re-rolling and re-melting purpose vie. : (1) Heavy melting ship scrap, (2) re-rolling ship scrap plates, (3) re-rolling ship shafting scrap. We shall feel obliged if you let us know the rate of goods chargeable on the said item." The rate of octroi chargeable was endorsed on the same letter which was, for item No. 1 mentioned therein, was Re. 0.12 and for items 2 and 3 as Rs. 1.25. In Petition No. 665/73, the petitioners had similarly asked for the following information "We are sending herewith an Invoice No. F. S. 710 dated 16th March, 1973, of Messrs Luria Brothers & Company, Inc. 161 East, 2nd St. New York 17, N. Y. (U. S. A.) pertaining to the shipment of 3498 9553 tons of iron and Steel Scrap per s.s. TARBELA, and would request you to kindly let us know the rate of octroi chargeable on the said item, so that the goods may be cleared in time." The rates of octroi chargeable on the goods relating to this shipment, which seem to have been ascertained after scrutiny of Bill of Entry, was given as follows : "(1) Steel plates Rs. 1.25 (rerollable) P L T. (2) Beam (Rerollable) Re. 0.31. (3) Rails (used) Re. 0.31. Here it would be of advantage to reproduce relevant portion of Class VIII . of the Schedule. "IRON (a) Wrought and unwrought Iron 0.25 (b) Scrap iron 0.12 (c) Iron beams, girders, rails and all other heavy materials made of iron used in the construction of buildings . . . . . . . 0.31 (1) All articles made of iron or steel not specified elsewhere Rs. 1.25" The contentions raised by the petitioners are that the items imported by them in all the four cases fall under the heading of scrap iron as given under clause (b) above. They therefore contend that charging of octroi at any rate other than that fixed for scrap or scrap iron is not permissible under the law and is an act beyond the lawful authority conferred on the Municipal Authorities. In support of their contention Mr. Noorul Hassan, the learned counsel for the petitioners has submitted that the terms 'scrap iron' as under stood in the trade circles, is of two types (a) firstly re-rollable scrap, also known as 'old scrap' which consists of discarded material and is returned to metallurgical industry for re-rolling ; and (b) Re-meltable or new scrap is a metal obtained in manufacturing operations, which has not been used in an end product, and is, there fore, still in the process of manufacture. On the other hand the contentions of the respondent-Corporation are that the term 'Scrap Iron' is used for 'completely worn out iron which has no utility other than for melting purposes and is of even lesser value than iron ore.' They further contend that for the purposes of octroi this is the type of scrap which is to be treated as scrap iron. They also contend that this term does not cover re-rollable scrap which consists of many useable items like plates, girders, bars etc., which are separately classified. In support of this contention that the term 'scrap iron' includes both re-rollable as well as re-meltable scrap, Mr. Noorul Hassan, has referred us .to the Notification No. PISC (2)/456/56-II of 1958. In this Notification prices of re-rollable and re-meltable scrap have been fixed and different forms .in which later type of scrap is available, are also given. These are to the following effect : "The ex-stock selling price of scrap available in Pakistan shall be as under : (i) Re-rollable scrap : Rs. per ton Thickness 3/8' and above weight 3.5 lbs. and above . . . 400.00 (2) Re-meltable Scrap (i) Heavy-thickness above 1/8'. 150-00 (1T) Light-thickness 1/8' and below : (a) Fresh uncorroded and unrested punchings and cuttings of steel sheets plates and other steel sections. 96.00 (b) Corroded and rusted cuttings and punchings of steel sheets, plates and other steel sections. 83.00 (c) General and domestic returns like buckets and trunks, enamelware etc. 75.00 Another Notification in this regard relied upon is No. PISC (2)/361/66 dated 3rd June, 1966. Here again the terms iron and steel re-rolling scrap has been used with the following definition : "Thickness 3/8' and above, and in weight of 3.5 lbs and above (consisting mainly of steel Mill rejects like ingot, bloom, slab and billet crop-ends, deformed rejects from reheating furnaces, scrap from continuous rolling mills. End cuttings of sheets and plates whether pieces or rolled strips in width not exceeding 3/4', rejected misrolled and old pitted shaftings in pieces, old girders and plate pieces, Scrap from ships etc.)" The learned counsel contends that in view of this clear recognition by the Central Government of the existence of re-rollable scrap along side with remeltable scrap there was no occasion for the Municipal Authorities to declare that scrap iron would mean only re-meltable scrap iron and would not include re-rollable scrap iron. To this Mr. Nasir Khan the learned counsel for the respondent-Corporation contends that the Corporation is always free to define different items chargeable to octroi as it thinks fit. There is no doubt that the Municipal Corporation has always the authority. under the law, to define items keeping in view its own particular objects, and then to fix the rate of octroi chargeable thereon. This definition may not necessarily conform to the definition assigned to it by the Federal or Provincial Government, or may even be different from the commonly understood meanings of the same. But so long as no special definition is assigned the A term will be interpreted in the light of its commonly understood meaning, and in such interpretation help may always be taken from the meanings assigned to it by other authorities. But in the present case there is no specific distinction laid down in the Schedule between the re-rollable and re-meltable scrap. In such a case it cannot be claimed that the Corporation has exercised its powers to define the term. The term used in the Schedule is 'scrap iron', therefore, one has to go by the meanings of this term as are ordinarily understood. It is for Mr. Noorul Hassan to show that in ordinary parlance the term scrap indicates two types of scrap. He has referred us to the term scrap ;metal as given in Encyclopaedia Brittanica (1967 Edition), Vol. XX, page 16189. It is stated therein 'there are two distinct kinds of scrap metal : 'old scrap' is metal that has been discarded after use and is returned to the Metalurgical Industry for reprocessing ; 'new scrap' is metal from manufacturing operations that has not been used in an end product, is therefore still in the process of manufacture. Mr. Noorul Hassan also relied upon Craies on Statutes Law (page 164) where it is stated, on the basis of judicial authority, that when words are used with reference to particular trade, business or transaction which every body conversant with that trade, business or transaction knows and understands to have a particular meaning then the words are to be construed as having that particular meaning which may differ from the ordinary or popular meaning. The learned counsel, therefore, contends that the term scrap iron. has to be deemed to include both re-rollable scrap and re-meltable scrap. Another argument, put forward on behalf of Municipal Corporation, is that item (b) in Class VIII of the Schedule uses the word 'iron' whereas item (1) uses the words 'iron or steel'. Mr. Nasir Khan contends that the goods being charged under item (1) are those which are made of steel, which is quite distinct from iron. The learned counsel tried to elaborate this point by contending that steel is always manufactured by a process through which carbon is added to iron and thereby the distinct produce of steel is manufactured. In ordinary language steel is always understood to belong to the family of iron. In the absence of any different meanings assigned to the term 'steel', it would be deemed to be included in the term 'iron'. 1n Hart v. The Standard Marine Insurance Company Ltd. ((1889) 52 Q B D 499) the Insurance Company had warranted that no iron or its ore or phosphate cargo shall be carried on a ship, in excess of a given tonnage. But when the ship carried a quantity of steel in excess of nett registered tonnage it was held that the warrantee was broken by the Shipping Company. The argument that steel was different from iron or its ore, was repelled. In spite of the very weighty arguments put forward by Mr. Noorul Hassan as detailed above, an objection raised by the learned counsel for the Corporation must succeed. The learned counsel contends that the petition is not maintainable because the petitioners did not try to invoke the provisions of appeal available to them under the West Pakistan Municipal Octroi Rules, 1964. He mainly relies upon Rule 48 of the Rules which is to the following effect "

48. If there is any doubt or dispute about the assessment of octroi on any goods, or the liability of any goods to octroi, the octroi shall be paid according to the demand of the octroi clerk, and the person aggrieved may appeal to the Taxation Officer in accordance with the provisions of Chapter XXVIII of these Rules." The learned counsel contends that according to Article 199, a pre-condition for invoking the Constitutional jurisdiction of this Court is complete absence of any other adequate remedy. In view of Rule 48, there was an alternate and adequate remedy available which has not been invoked by the petitioners, in this case. Mr. Noorul Hassan, on the other hand, relies upon authorities of the Supreme Court to show that he could, in spite of the provisions of Rule 48, invoke the jurisdiction of this Court by way of writ. The first of these authorities is Abdul Ghani's case (P L D 1968 S C 131). In this case the relevant observations are as follows : "Anything done beyond or in excess of power conferred by Statute can be brought within the power of avoidance vested in the High Court." This was a case in which the authority of the Deputy Commissioner under the Frontier Crimes Regulations to issue process to parties resident outside their jurisdiction was challenged. It was held that the D. C. had under the Frontier Crimes Regulations no power to issue such summons. The observa tion of their Lordships of the Supreme Court would not be attracted to the present case because there is no question of acting beyond the power or in excess of the pouter conferred by the Statutes. Here the question is if the term 'scrap iron' covers re-rollable as well as re-meltable scrap, and that if the goods which are the subject-matter of these petitions fall under this item. Therefore, it would not be correct to contend that the view taken in Abdul Ghani's case would be applicable to the facts of the present case. The next case relied upon is that of Pakistan v. Ziauddin (PLD1962SC440). In this case, which was under the Customs Act, a plea was taken that the remedy by way of appeal against the order of the Assistant Collector was open to the respondent and therefore a writ petition did not lie. But this objection, though taken in the written statement, but was not raised before the High Court. Their Lordships of the Supreme Court observed as follows : "One reason for not giving effect to this objection is that it was not argued before the High Court and should not be allowed to be argued now. But there is even a stronger reason why the objection should be repelled. In the very case which has been relied upon by the learned Attorney-General that is Messrs Haroon and others v. The Collector of Customs, Karachi and another, it had been held that the failure to appeal against the order of the Collector was not necessarily a bar to the tiling of a petition for certiorari for the objection as to there being an alternative remedy "was not of such weight in the case of certiorari as it was in the case of manlamus, and if there was either absence or excess of jurisdiction or the impugned order suffered from illegality on the face of the record a certiorari could be granted even though the remedy by way of appeal had not been availed of." Enunciation of Law in this case is based on the provisions of Article 170 of the 1956 Constitution. Those constitutional provisions empowered the High Courts to issue writs of the nature of English Common Law. A prerogative writ of the nature of certiorari could be issued even where alternate remedy was available provided requisite grounds for the grant of such writ existed. These requisite grounds have always been held to be either abuse of jurisdiction conferred upon a tribunal or exercise in excess of such jurisdiction. In Nagina Silk .Mill's case (PLD1963SC322) their Lordships of the Supreme Court went to the extent of holding that if an impugned order suffered from illegality on the face of the record or it was case of absence or excess of jurisdiction a certiorari may be granted. In this regard a distinction had always been made by the Supreme Court in the case of mandamus and certiorari. Mandamus could not, in any circumstances be issued where an alternate remedy, provided by law, bad not been availed of. But in spite of the provisions of Article 170 -of the 1956 Constitution the Supreme Court had in Tariq Transport Company's case (P L D 1958 S C (Pak.) 437) insisted that "it was wrong on principle to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy of appeal to another tribunal fully competent to award the requisite relief. Any indulgence to the contrary is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent." But in the case of certiorari the same principle, which subsequently the Supreme Court repeatedly reiterated, was laid down that 'in order to quash a proceeding by certiorari, it is necessary that the lack of jurisdiction should appear on the face of the record.' But the provisions of Article 98 of the 1962 Constitution as well as 199 of the present Constitution make it a condition precedent for invoking the .constitutional jurisdiction of this Court that there be no other adequate remedy available. As observed in Mahboob Ali Malik's case (P L D 1963 Lah. 575) the new provisions have, while enlarging the scope of writ jurisdiction of the High. Court in certain cases, has curtailed it in others. One of the striking example is the writ of certiorari which could be issued earlier even in the presence of alternate remedy being available but which cannot be issued now unless alternate remedy is fully availed of. However, other factors such as exercise of authority either in the absence or in excess of jurisdiction ; alternate remedy not being equally efficacious, speedy or convenient can always be taken into consideration while issuing the writ. But in the present case no such contention has been raised and, therefore, the principles of Ziauddin's case relied upon by the learned counsel will not be available. Another authority relied upon by the learned counsel for the petitioners is Usmania Glass Sheet Factory v. Sales Tax Officer (P L D 1971 S C 205). In this case an objection was taken that the petition was premature as remedies of appeal and revision had not been pursued. This objection was rejected on the ground that the Sales Tax Officer was threatening to recover the sales tax on goods which were claimed to be not liable to such tax. In the present case it is the rate of octroi duty which is in dispute and it is not contended if liability to pay the duty does not exist. The facts being different the authority cannot be relied upon. But another strong reason why the writ should not be issued, is that this case involves certain findings of fact. The details of the goods imported by the petitioners, and as given in the earlier part of this judgment, include such items as structural steel up to 5 ; heavy melting steel 60" x 24" and steel plates, beams and rails ate. This is specially so in the facts of the case relating to Petitions Nos. 261,/72 and 665/73. It would require determination by the proper authority if these items fall under the category of re-rollable scrap, or of re-meltable scrap, duly keeping in view their respective definition. In writ jurisdiction questions of fact are not allowed to be agitated. In view of the aforesaid discussion I have come to the conclusion that the provisions of Article 199 of the Constitution could not be invoked firstly on the ground that adequate and alternate remedy was available and it had not been pursued, and secondly the matter involves certain questions of fact which can be properly determined only by the authorities of the Corporation.. I would, therefore, dismiss the petitions with costs. S. A. H. Petitions dismissed.