2020 PLP 946 (CLC)

KHADIM HUSSAIN M. SHAIKH, J.

The captioned appeal is directed against judgment dated 18.02.2011 and decree dated 19.02.2011, passed by the learned 5th Additional District Judge, Hyderabad, dismissing the Civil Appeal No.147 of 2009 re: Messrs Seri Sugar Mill Limited v. Union Council Seri filed against the judgment dated 25-07-2009 and decree dated 27-07-2009 passed by the learned 4th Senior Civil Judge, Hyderabad in F.C. Suit No.220 of 1999 re: Union Council Seri v. Messrs Seri Sugar Mill Limited, whereby the suit filed by the respondent/plaintiff Union Council for recovery of Rs.14,15,406/- as octroi tax for the period from 01.7.1998 to 16.2.1999, was decreed.

2. Briefly the facts of the case are that the plaintiff Union Council Seri being statutory government body under Sindh Local Government Ordinance, 1979 was authorized to recover taxes and fees etc of its area and jurisdiction notified in the official Gazette bearing No.UC/SERII/(Taxes)/138/94 dated 19.10.1994. The plaintiff put various contracts for auction in the month of June, 1998 through publication after completing all the requirements under the directions of Government of Sindh for the year 1998-99 commencing from 01.7.1998 to 30.6.1999. Of them, contract for recovery of wheel tax was given to one Khalid Mehmood on his offering of highest bid and whereas the remaining contracts having not been allotted to anybody remained with the department. The plaintiff/Union council Seri was recovering the taxes and fees according to the schedule within the area of Union Council Seri departmentally except the item of wheel tax allotted to contractor Khalid Mehmood. The defendant Sugar Mill was under obligation to collect and pay octroi tax on the item of Sugar Cane purchased by it for the purposes of storing and crushing at the rate of Rs.00-20 per 40 kilograms per item shown at serial No.5 of the schedule, but the appellant/defendant Sugar Mill had failed to make the payment of subject octroi tax during the financial year commencing from 1st July 1998 ending on 30-06-1999 and an amount of Rs.14,15,406/- as arrears of cotroi tax up to 16.2.1999 was outstanding against the defendant Sugar Mill, therefore, the plaintiff Union Council filed the subject suit with the following prayers:- (a) The defendant may be directed to make payment of Rs.14,15,406/- to the plaintiff towards Octroi on sugar cane item as per the schedule of recovery dated 01.12.1994 upto 16.02.1999. (b) The defendant further be directed for the payment of Octroi charges on sugar cane item of schedule for onwards period from 17.02.1999 uptill the final decision of the case and to the execution of the decree against them according to calculated weight of goods sugar cane imported in their mill.

3. After the summons was served, the defendant Sugar Mill filed written statement denying the allegations and claims of the plaintiff Union Council, further stating therein that neither the defendant Sugar Mill is in agreement with the plaintiff Union Council to recover the octroi tax of Sugar Cane nor the defendant Sugar Mill recovered the octroi tax for the plaintiff. The defendant has also stated that the octroi tax, recovery rights were leased out to one Khalid Mehmood and growers made payment to the contractor Khalid Mehmood, who was lessee of the plaintiff under the agreement.

4. On the divergent pleadings of the parties the learned trial court framed the following four issues:-

1. Whether the sugar cane crushed in sugar mills of defendant during the period 01.07.1998 to 30.06.1999 was subject to payment of Octroi tax. If so, who was entitled to recover the same?

2. Whether the defendant is liable for payment of Octroi tax to the plaintiff, so what would be amount of it?

3. Whether the plaintiff is entitled for the relief claimed?

4. What should the decree be?

5. The plaintiff examined one Ali Akbar, the Administrator of Union Council Seri at Ex.23, who produced attested copy of notification dated 01.12.1994 at Ex.23/A, attested copy of cane receipt Summary dated 16.2.1999 at Ex.23/B, Original agreement of contract dated 01.7.1998 at Ex.23/C, attested copy of daily Newspaper Jang dated 12.6.1998 at Ex.23/D and Ex.E, letters dated 30.6.1998 and 27.3.1999 at Ex.23/F and 23/G respectively and the side of the plaintiff was closed vide statement at Ex.24.

6. The defendant Sugar Mill examined contractor Khalid Mehmood at Ex.50 and Deputy Manager Abdul Aziz at Ex.51, whereafter side of the defendant was closed vide statement Exh.52. At the conclusion of the trial, the learned trial Court after hearing the parties' counsel passed judgment dated 08.1.2005 and decree dated 11.1.2005, whereby the said suit was dismissed in first round. The said judgment and decree passed by the learned trial Court were challenged in Civil Appeal No.38 of 2005, which was decided by the learned 6th Additional District Judge, Hyderabad vide judgment and decree dated 27-10-2005 whereby the impugned judgment and decree passed by the learned trial court were set aside and the matter was remanded to the learned trial court with the directions to re-write the judgment after hearing the counsel for the parties.

7. After hearing the parties' counsel, the learned trial court decreed the suit vide judgment dated 25.7.2009 and decree dated 27.7.2009, which were appealed against in Civil Appeal No.147 of 2009 re: Messrs Seri Sugar Mill Limited v. Union Council Seri and others, which was ultimately dismissed by the learned 5th Additional District Judge, Hyderabad vide impugned judgment dated 18.02.2011 and decree dated 19.2.2011.

8. Having felt aggrieved by the said judgments and decrees passed by both the learned courts below, the appellant Sugar Mill has preferred this appeal.

9. The learned counsel for the appellant has mainly contended that the plaintiff union council had failed to prove its case against the defendant Sugar Mill, but the learned Trial Court and the learned Appellate Court as well without appreciating the evidence brought on record have passed the impugned judgments and decrees; and, that while passing the impugned judgments and decrees both the learned Courts below have committed serious illegalities. He, therefore, prays that the appeal may be allowed and the suit of the plaintiff union council may be dismissed.

10. The learned Assistant Advocate General has mainly contended that the learned Trial Court as well as the learned Appellate Court after appreciating the evidence brought on record in its true perspective have passed the concurrent judgments and decrees, which, per him, do not call for any interference. He, therefore, prays for dismissal of the appeal.

11. I have considered the arguments of learned counsel for the appellant and learned Assistant Advocate General and have gone through the material brought on record.

12. From a perusal of the record it would be seen that respondent/plaintiff being authorized to recover the taxes and fees etc. in its area notified in the official gazette, according to schedule of the recovery bearing UC/Seri/(Tax)/138/94 dated 19.10.1994, had put various contracts for auction in the month of June, 1998 through publication, after completing all the requirements under the directives of the government of Sindh for the year 1998-99 commencing from 01.7.1998 to 30.6.1999. Of them, only contract for recovery, of wheel tax was allotted to contractor Khalid Mehmood and whereas, the rest items including octroi tax on sugar cane at the rate of Rs.00-20 per 40 kilograms being item No.5 of the schedule of collection of the taxes and fees etc., having not been auctioned to any person, was being collected by the plaintiff / Union Council Seri according to the gazette notification produced by the plaintiff at Ex.23/A; the cane receipt summary produced at Ex.23/B would reveal that sugar cane weighing 7,077,031 mounds was purchased and crushed by the defendant Seri Sugar Mill upto 16.2.1999 and an amount of Rs.14,15,406 as octroi tax according to the gazette notification and per cane receipt summary was liable to be paid by the defendant Sugar Mill to the plaintiff / Union Council Seri. It is also matter of record that the plaintiff / Union council had informed the defendant Sugar Mill that octori tax on sugar cane shall be recovered by the plaintiff Union Council for the year 1998-99, through letter dated 30.6.1998 produced at Ex.23/F, which was duly received by the defendant Sugar Mill and this fact was also admitted by the Deputy Manager Seri Sugar Mill; who also admitted that the plaintiff Union Council had informed the defendant Sugar Mill for collection of octroi tax on sugar cane which was deducted by Seri Sugar Mill from the growers; the lease agreement produced at Ex.23/C would reveal that it is signed by contractor Khalid Mehmood and there is specific note appended thereto that it was only for wheel tax contract for the year 1998-99; contractor Khalid Mehmood examined as defendant Sugar Mill's witness has stated that he has recovered the amount of octroi tax, but not a single receipt of such payment has been produced to show that actually the octroi tax on the Sugar cane was recovered by the said contractor even no counter foil which could substantiate such contention of the defendant Sugar Mill regarding recovery of octroi tax on sugar cane by the contractor was produced in evidence and thus there is no iota of substance worth consideration even to remotely suggest that octroi tax on Sugar cane was paid to the contractor; moreso when no statement of account or any document was produced by the defendant sugar mill to prove that the octroi tax on sugar cane was paid to the contractor. The defendant Sugar Mill has also not produced any documentary proof that the octroi tax on sugar cane was received by contractor Khalid Mehmood. The plaintiff has produced original document at Ex.23/F, that is a very important letter bearing No.UC(SERI)268/1998, dated: 30-06-1999, which was duly received by the defendant Sugar Mill, in which the defendant Sugar Mill was clarified that recovery of octroi tax on Sugar cane shall be made by the plaintiff Union Council and was also asked to maintain a separate record. The learned Trial Court after appreciating the evidence brought on record has come to the conclusion that the defendant Sugar Mill is liable for the payment of octroi tax on Sugar cane item No.5 to the plaintiff Union Council at the rate mentioned in Gazzete notification produced at Ex.23/A and decreed the suit of the plaintiff union council to the extent of prayer clause (A). The learned Appellate court after re-appraisal of the evidence has dismissed the appeal filed by the appellant Sugar Mill vide impugned judgment dated 18-02-2011 and decree dated 19-02-2011, maintaining the Judgment and Decree of the trial Court. A bare reading of the impugned judgments, passed by both the learned Courts below, would reveal that the same are apt to the facts and circumstances of the case and both the judgments of the learned Courts below based on appraisal of evidence, suffering from no illegality or any jurisdictional defect do not call for any interference. The learned counsel for the appellant has also not been able to point out any illegality or infirmity or any jurisdictional defect in the impugned judgments and decrees passed by both the learned Courts below. Accordingly, this Appeal being devoid of merit is dismissed along with the listed application with no order as to costs. SA/S-89/Sindh Appeal dismissed.