2002 PLP 1060 (MLD)

S. 137

Constitution of Pakistan (1973), Art.142(a) & Fourth Sched., Part I, Item 51

Civil Procedure Code (V of 1908), S.115-- Levy of octroi

Courts below in matter of levying octroi on goods having not proceeded in accordance with relevant law, their concurrent judgments and decrees were set aside by High Court in exercise of its revisional jurisdiction. Ch. Hameed-ud-Din with Zahid Hussain Khan for Petitioner. Malik Allah Wasaya for Respondents. Date of hearing: 27th September, 2000. The present revision petition assails the concurrent judgments and decrees of the Courts below dated 7-11-1984 passed by the learned Civil Judge, Mianwali and 3-11-1985 passed by the learned Additional District Judge, Mianwali respectively. 2: The two Courts below have confirmed their decisions to the interpretation of certain provisions contained in the Constitutions of 1962 and 1973. Learned counsel for the respondent No. 1 has argued that the petitioner Town Committee had no power to levy octroi on items mentioned at Serial Nos.85 to 90 of Octroi Schedule for the year 1980 (Exh.P-9). These items include petrol, kerosene oil and motor spirit etc. The basis of learned counsel's arguments was, firstly that by virtue of a letter dated 1-8-1969, which though not exhibited is on the record of the trial Court, the Provincial Government had directed that the aforesaid items could not be included in the schedule of items on which a Local Government could levy octroi; secondly learned counsel for the respondent No.1 referred to Item No.51 in Part I of the Federal Legislative List contained in the 4th Schedule of the Constitution of 1973. This item relates to tax on mineral oil etc. On this basis, learned counsel for the respondent contended that only the Federal Government had a power to levy any tax on mineral oil. According to him, the items referred to above, therefore, fell outside the purview of the powers-of a Provincial Government or any Local Government.

3. The two-fold contention of learned counsel for the respondent No. 1, is not legally well founded. It is, firstly to be noted that the direction contained in the letter dated 1-8-1969 referred to above, was issued when the Basic Democracies Order, 1959 was in force. Any Local Government under section 60 of the said Order, was required to obtain the prior permission of the concerned Provincial Government before levying a tax or including an item in an octroi schedule. It was in view of the said statutory provisions that the Local Council had sought a clarification from the Provincial Government. The Provincial Government had construed the provisions of the 1962 Constitution and had, therefore, directed that the aforesaid items could not be included in the octroi schedule. It is also pointed out by the learned counsel for the petitioner that the current legislation i.e. the Punjab Local Government Ordinance, 1979 contains a provision (section 137 which is materially different from the provisions contained in section 60 of the Basic Democracies Order, 1959). In particular, he was pointed out that under section 137 of the Punjab Local Government Ordinance, a Local Council can levy a tax without obtaining any prior approval of the Provincial Government although a Provincial Government may in exercise of powers contained in section 137 aforesaid direct a Local Council to either increase or reduce any tax imposed by it.

4. The difference between the provisions of section 60 of the Basic Democracies Order and section 137 of the Punjab Local Government Ordinance, 1979 is evident as pointed out by learned counsel for the petitioner. In this view of the matter, the letter, dated 1-8-1969, issued by the Provincial Government, cannot be made a basis for holding that the petitioner-Town Committee is bound by the terms of the said-letter. I also .note that there is no direction of the Provincial Government issued subsequent to the promulgation of the Punjab Local Government Ordinance, 1979 whereby the petitioner has been directed to exclude the items mentioned above from its octroi schedule.

5. The second contention of learned counsel for respondent No. 1, based on Item No.51 of Part I of the Federal Legislative List, is also not well-founded. This is so because the items referred to above, do not fall within the description of mineral oil. As such, Item No.51 referred to above has no bearing on the present case. Furthermore, learned counsel for the petitioner has referred to the case titled Sher Shah Industries Ltd. v. Government of Sindh and 4 others (PLD 1982 Kar. 653) to argue that the Local Council is, indeed, empowered to levy cess in the nature or octroi on the entry of goods in its local area for consumption, use or sale therein. Admittedly, the aforesaid items were imported into the local area of the petitioner for consumption, use pr sale. In this view of the matter and considering the precedent cited by learned counsel for the petitioner, the argument of learned counsel for the respondent No.1 based on the Constitutional provisions referred to above, is not legally tenable.

6. The two Courts below have based their findings on an interpretation of the Constitutional provisions referred to above as argued by learned counsel for the respondent No. 1.

7. In view of the above discussion, it is clear that the two Courts below have not proceeded in accordance with law. The present petition is, therefore, accepted and the judgments and decrees mentioned in the first paragraph of this judgment, are set aside. A$ a result, the suit filed by the respondent No.1 stands dismissed. There shall be no order as to costs. H.B.T./T-85/L Revision petition accepted,