1993 PLP 849 (MLD)

MAMOON KAZI, J.

The petitioners in the two petitions had imported hessian cloth and regenerated fibers respectively into Pakistan against valid import licenses issued by the Chief Controller of Imports and Exports, Government of Pakistan. The petitioners were subsequently, permitted to export the said consignments to Iran. The goods imported by the petitioners remained in Customs bond on their arrival in to Pakistan and were re-exported under the Customs bonded arrangements to Iran by train. The petitioners applied to the Director of Octroi of the respondents for providing to the petitioners transit pass facility for the consignment in question and for removal of the goods from the bonded warehouse and re-export thereof without payment of octroi but the request of the petitioners was declined on the ground that the said facility for the consignments in question which had been retained in the Customs bonded warehouse, was not permissible under the rules, and hence the two petitions.

2. We have heard Mr. Muhammad Ali Sayed on behalf of the petitioners and Mr. Muhammad Yasin Kiyani on behalf of the respondents.

3. The main thrust of Mr. Muhammad Ali Sayed's arguments has been that the goods in question, not being imported for consumption, use or sale within the Karachi Octroi limits but the same being meant for export directly from Karachi Sea Port to Iran by the land route, could not be subjected to octroi by the respondents. Support has been sought in this regard from rule 2(m) of the Municipal Committees Octroi Rules, 1964 which provides that: "(m) "Octroi" means a tax on the import of goods for consumption, use, or sale within the octroi limits:"

4. Although it has not been disputed by the respondents that the goods in question were meant for export to Iran as pointed out earlier in this judgment, but the main contention of the respondents has been that since the petitioners had imported the goods in their own name as purchasers or consignees thereof and the transaction had been concluded by them with the Iranian buyers in their own name at Karachi, therefore, the same constituted sale at Karachi to bring the transaction within the mischief of the above definition.

5. The only question which, therefore, requires to be determined in this case is, whether the transaction which was admittedly concluded at Karachi between the petitioners and the Iranian buyers constitutes sale within the meaning of the said term, occurring in the above definition. Since the word `sale' has been used in the company of the words `consumption' and `use' and the said words are susceptible of analogous meaning, the rule of interpretation that general words must take their colour from the words which .are less general in nature would apply. Maxwell on the interpretation of Statutes, Twelfth Edition, at page 289 states the rule thus: "Where two or more words which are susceptible of analogous meaning are coupled together, noscuntur a sociis, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general:" Thus in Muir v. Keay (1875) L.R. 10 O.B. 594, in section 6 of the Refreshment Houses Act, 1860, dealing with houses "for public refreshment, resort and entertainment," the last Word was understood, not as a theatrical or musical or similar performance, but as "something connected with the enjoyment of refreshment-rooms" (Maxwell, p.289). The word "sale" occurring in the said definition therefore does not appear to be referring merely to a contract of sale but actual sale, that is to say, selling, buying and delivery of the goods sold must take place within the octroi limits. What the definition of octroi in rule 2(m) contemplates is, a sale with all its concomitants and not merely a contract of sale. In this case the transaction entered into between the 13 petitioners and the buyers in Iran, no doubt, may constitute a contract of sale, but the same cannot be construed as a sale within the meaning of the said definition. We are fortified in our view by a judgment of a Division Bench of this Court in the case of M/s. Commodities Export Limited v. Karachi Metropolitan Corporation (Constitutional Petition No.D-58 of 1987) which was decided on 7-9-1989. Incidentally the facts of the present case and the earlier case are identical. Saiduzzaman Siddiqui, J. speaking on behalf of the Division Bench, while repelling a similar contention raised in the said case observed: "The contention of the learned counsel for the respondents that as the agreement between the petitioner and the foreign company for export of goods to Iran was made at Karachi, therefore, it amounted to the sale of goods within the local limits of K.M.C. has no substance. The agreement between the petitioner and the Iranian company providing for export of imported goods, even if it was executed in Karachi, could not amount to sale of the goods within the local limits of K.M.C. in terms of definition of octroi reproduced above. The agreement between the petitioner and Iranian company relied by the respondents for charging octroi on the goods could not amount to sale of the goods within the local limits of K.M.C., as admittedly, these goods were imported in Pakistan long after the date of the said agreement and, on import of the goods, they were exported to Iran.

6. In our view, the observations made by the learned Division Bench in the above case are clearly attracted to the facts of the present case, because, as is clearly evident from the endorsement made on the import license issued to the petitioners for import of the goods into Pakistan, a copy of which has been filed in C.P. No.D-1685 of 1987, the license had been issued for re-export of the goods to Iran via land route. This is further confirmed by a letter dated 4-11-1987, Annexure-E, addressed on behalf of the State Bank of Pakistan, granting permission to the petitioners for import of the goods in question and their export to Iran. Although, similar documents have not been filed alongwith C.P. No.D-870/88, which is the connected petition, but no controversy exists in regard to the fact that the goods were not meant for consumption and use within the octroi limits of Karachi but were directly exported to Iran under Customs bonded facilities. Consequently, in our opinion, the respondents have I no lawful authority to subject the goods to octroi and decline to issue a transit pass under rule 35 (e) of the Municipal Committees Octroi Rules, 1964.

7. In the result, we allow this petition by declaring that refusal by the respondents to issue a transit pass to the petitioners for movement of the goods through the Karachi octroi limits without payment of octroi is without lawful authority. The parties are left to bear their own costs. A.A./M-1782/K Petition accepted