JUDGMENT TANVIR BASHIR ANSARI, J.- Briefly the facts are that the petitioner is a Public Limited Company which has established a Cement Plant at Sangjani, Islamabad. In this capacity in the running of Cement Manufacturing Unit, the petitioner is a B-4 consumer of Electricity.
2. "Electricity Duty" was levied through West Pakistan Finance Act (XXXIV) of 1974 which is reproduced as under:- Electricity Duty. - (1) From the first day of July, 1964 there shall be levied and paid to Government on the units of energy consumed for the purposes specified in the first column of the Fifth Schedule excluding losses of energy in transmission and transformation, a duty (hereinafter referred to as "Electricity Duty") at the rates specified in the second column of that schedule: Provided that Electricity Duty shall not be leviable on the energy consumed by, or in respect of the consumers enumerated in this Sixth Schedule except to extent specified therein: Provided further that for reasons to be recorded, Government may, by notification in the official Gazette, exempt any other consumer or class of consumers from the operation of this section.
Explanation. - in this section, unless there is anything repugnant in the subject or context-
(a) "consumer" means any person, other than a distributing licensee, who is supplied with energy by a licensee;
(b) "energy" means electrical energy when generated, transmitted, supplied or used for any purposes except the transmission of a message.
(c) "licensee" means any person licensed under Part II of the Electricity Act, 1910 (Act IX of 1910), to supply energy and includes any person who has obtained the sanction of the Government under Section 28 of that Act.
(2) Every licensee shall collect and pay to the Government, the Electricity Duty payable under this section in such manner as may be prescribed. The Duty so payable shall be a first charge on the amount recoverable by the licensee for the energy supplied by him and shall be a debt due by him to the Government: Provided that-
(i) that licensee shall not be liable to pay the duty in respect of any energy supplied by him for which he has been unable to recover his dues;
(ii) the licensee shall be entitled, for his cost of collection of the duty; to a rebate of such percentage as may be determined by the Government, on the amount of the duty collected and paid by him under this sub-section.
(3) Where any person fails or neglects to pay the amount of Electricity Duty due from him, the licensee may, without prejudice to the right of Government to recover the amount under Section 3 of the West Pakistan Government Dues Recovery Ordinance, 1962 (West Pakistan Ordinance XXII of 1962) discontinue to supply energy to him and for this purpose, exercise the power conferred on a licensee by sub-section (1) of Section 24 of the Electricity Act, 1910 for recovery of any charge or sum due in respect of energy supplied by the licensee.
(4) in the case of energy other than that supplied by a licensee, the person generating the energy shall pay to the Government the Electricity Duty payable under this section in respect of the energy consumed, in such manner as may be prescribed.
14. Penalty. - If the person who is responsible for the payment of the toll or tax under Sections, 5, 8 or 11 or for the collection and payment of a toll or tax under Sections 9, 10, 12 or 13 fails to pay the tax or to collect and pay the tax, as the case may be shall be liable to pay a penalty not exceeding the amount of the toll, or tax payable.
15. Application of existing laws. -- Where any tax w surcharge imposed by this Act is by way of an addition to or a Surcharge on any existing tax imposed by or under an enactment, the procedure provided in such enactment for the assessment, collection and recovery of such tax, shall, so far as applicable, apply to the assessm ent, collection and recovery of the additional tax or surcharge."
3. Through Section 5 of the Punjab Finance Ordinance (XIII), 1978 sub-section (1) of Section 13 of West Pakistan Finance Act, 1964 was substituted as under:-
(i) There shall be levied and paid to Government by a consumer of electricity a duty (hereinafter referred to as "electricity duty") at the rate of fifteen percent of the cost of the electricity chargeable by a licensee: Provided that Electricity Duty shall not be leviable on the energy consumed by, or in respect of the consumers enumerated in Sixth Schedule, except to the extent specified therein: Provided further that, for reasons to be recorded, Government may, by notification in the official Gazette, exempt any other consumer or class of consumers from the operation of this section.
Explanation. - in this section, unless there is anything repugnant in the subject or the context-
(a) "Consumer" means any person, other than a distributing licensee, who is supplied with energy by a licensee;
(b) "energy" means electrical energy when generated, transmitted, supplied or used for any purpose except the transmission of a message;
(c) "licensee" means any person licensed under Part II of the Electricity Act, 1910 (Act IX of 1910) to supply energy and includes any person who has obtained the sanction of the Government under Section 28 of that Act."
4. The petitioner feeling aggrieved the levy of "Electricity Duty" under the provisions of West Pakistan Finance Act, 1964 has challenged the same through the present writ petition mainly on the following grounds:-
(i) that the territory of the Capital of Pakistan ever since the creation of the State of Pakistan has been treated as an entity distinct from the Provinces and other territories and that Legislative Power, in respect of the Federal Capital Territory, has always been vested in and exercised by the Federal/Central Legislature or the President of Pakistan, it has never been exercised by a Provincial Legislature, it is contended that no levy can be made in this respect under a Provincial Legislature or through the Administrative Functionaries of the Province.
(ii) that the impugned duty is not being charged from other identically placed consumers in the Capital Territory. This amounts to gross- discrimination and is violative of the fundamental rights guaranteed under Article 25 read with Article of the Constitution.
It has been contended that imposition of Electricity Duty through West Pakistan Finance Act, 1964 does not extend to the Islamabad Capital Territory and is thus liable to be declared null and void, it is also prayed . That any Excise Duty paid by the petitioner may be directed tc be refunded.
5. Report and parawise comments have been submitted on behalf of respondents, according to which the "Electricity Duty" under the West Pakistan Finance Act, 1964 continued to remain in force under Article 19 of the West Pakistan (Dissolution) Order, 1970 and that the said levy was strictly in accordance with law and the Constitution. Any act of discrimination as alleged has been denied.
6. Raja Muhammad Akram, Advocate for the petitioner has made the following submissions:-
(a) that the Capital of the Federation was shifted from Karachi in 1959/60. The specified area as referred to in the Pakistan Capital Regulation No. 82, dated 16.6.1960 and the C.D.A. Ordinance, 1960 was declared to be the site of the Capital of Federation tha. Is to say Islamabad Capital Territory.
According to him as the Cement Manufacturing Plant of the petitioner is situated in Islamabad Capital Territory any Fiscal Statute governing the Islamabad Capital Territory must be made by the Central Legislature as ordained in 1962 and 1973 Constitutions of the Islamic Republic of Pakistan.
(b) that assuming that the West Pakistan Finance Act, 1964 did lawfully impose the Electricity Duty in the Islamabad Capital Territory, the same stood nullified by the promulgation of the Punjab Finance Ordinance (XIII) of 1978. He referred to Section 5 of this Ordinance which is to the following effect:- PUNJAB FINANCE ORDINANCE, 1978 (ORD. XIII of 1978)
Section 5.
Amendment of Section 13 of the Punjab Finance Act, 1964 (W.P. Act No. XXXIV of 1964). - in Punjab Finance Act, 1964, in Section 13 for sub-section (1) the following shall be substituted namely-
(i) There shall be levied and paid to Government by a consumer of electricity a Duty (hereinafter referred to as the Electricity Duty) at the rate of fifteen percent. Of the cost of the Electricity chargeable by a licensee: Provided that Electricity Duty shall not be leviable on the energy consumed by, or in respect of the consumers enumerated in Sixth Schedule, except to the extent specified therein: Provided further that, for reasons to be recorded, Government may, by notification in the official Gazette, exempt any other consumer or class of consumers from the operation of this section: Provided further that, for reasons to be recorded Government may by notification in the official Gazette exempt any other consumer or class of consumes from the operation by a licensee:
(a) "Consumer" means any person, other than a distributing licensee, who is supplied with energy by a licensee;
(b) "Energy" means electrical energy when generated, supplied or used for any purposes except the transmission of a message;
(c) "Licensee" means any person licensed under Part II of the Electricity Act, 1910 (Act IX of 1910)- to supply energy and includes any person who has obtained the sanction of the Government under Section 2 of that Act."
According to the learned counsel this later Ordinance of 1979 had substituted sub-section
(1) of Section 13 of West Pakistan Finance Act, 1964. As the later Ordinance is admittedly a Provincial Statute which is promulgated after the Dissolution of West Pakistan the same would be no legal effect in respect of properties situate in Islamabad Capital Territory.
(c) that the act of the respondents in levying and charging the said "Electricity Duty" is discriminatory as no other similar establishment is so charged. He contends that the petitioner is entitled to refund of the Electricity Duty already paid to the respondents.
7. Sheikh Zamir Hussain, Advocate and Syed Sajjad Hussain Shah, the learned A.A.G, have controverted the claim of the petitioner, it has been contended that, in pursuance of the Governor General Order No. 4 of 1955 called West Pakistan (Establishment) Order, 1955, all the Provinces and other Territories in the Western Wing of Pakistan were integrated into one unit. The West Pakistan Finance Act of 1964 which imposed the "Electricity Duty" was promulgated with authority and in accordance the Constitution of Islamic Republic of Pakistan, 1962. This law was an existing law when West Pakistan was dissolved through the Province of West Pakistan (Dissolution) Order, 1970 (P.O. 1) and under Article 19 thereof shall continue to be in force in the Territory which thereafter fell within the Islamabad Capital Territory. Article 19 of the P.O. 1 of 1970 is reproduced as under:- Continuation and adaptation of existing law. - (1) Except as expressly provided by or under this Order all existing laws shall continue in force, so far as applicable and with the necessary adaptations, unventilated, repealed or amended by the appropriate Legislature or other competent authority.
(2) For the purpose of bringing the provisions of any existing law into accord with the provisions of this Order, in relation to laws in the Central Legislative field, the President and in relation to other laws the Governor of the Province concerned, may be order, make such adaptations, whether by way of modification, addition or omission, as he may deem necessary or expedient, and any order so made shall unless, otherwise provided therein take effect or be deemed to have taken effect on the appointed day.
(3) Any Court, Tribunal or authority empowered to enforce an existing law shall, notwithstanding that no actual adaptations have been made in such law by an order made under Clause (2) construe the law with all such adaptations as are necessary to bring it into accord with the provisions of this Order.
Explanation. - in this Article "existing law" means any Act, Ordinance, Order, rule regulation, bye-law notification or other legal instrument which, immediately before the appointed day, had the force of law in the whole or any part of the Province of West Pakistan whether or not it had been brought into operation.
8. It was further contended that the substitution of subsequent 1 of Section 13 of the West Pakistan Finance Act, 1964 through Section 5 of the Punjab Finance Ordinance (XIII) of 1978 would not effect the chargeability of the said Duty.
9. Arguments have been heard and record perused.
10. The crucial point for determination in the present writ petition is whether or not the West Pakistan Finance Act, 1964 was promulgated in accordance with the Constitution of Pakistan, 1962 as far as it related to the Islamabad Capital Territory and if so whether the said application has been rendered ineffective by the substitution of Section 13(i) of the Act of 1964 with Section 5 of the Punjab Finance Ordinance (XIII) of 1978. The Western Wing of Pakistan which comprised of Provinces of Punjab, N.W.F.P. Sindh and Baluchistan and the States of Bahawalpur and Khairpur, Baluchistan States Union, Tribal Areas were integrated into One Unit through the Establishment of West Pakistan Act, 1955. Karachi was specified as "The Federal Area".
11. The Constitution of Pakistan, 1962 was promulgated on 1.3.1962. On the subject of law making powers in respect the Federal Capital (which by that time has been decided to shift to the area of Islamabad Capital Territory) the provision was made in Article 131 of the Constitution which is reproduced as under:- 131(1) The Central Legislature shall have exclusive power to make laws (including laws having extra- territorial operations) for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule.
(2) ............................... (3) ............................... (4) The Central Legislature shall have power (but not exclusive power) to make laws for the Islamabad Capital Territory and the Dacca Capital Territory with respect to any matter not enumerated in the Third Schedule.
(5) The Central Legislature shall have power to make laws for any part of Pakistan not forming part of a Province with respect to any matter."
12. West Pakistan Finance Act of 1964 was promulgated on 29.6.1964 as an act of the Provincial Legislature of West Pakistan. The purpose of the said act was to continue, levy and abolish certain, taxes and duties in the Province of West Pakistan. Section 13, sub-section (1) dealt with levy of the Electricity Duty while sub-sections (2) and (3) provided for the recovery where any person fails or neglect to pay the amount of Electricity Duty. Section 14 deals with imposition of penalty in the event of evasion of the said Tax. Section 1 5 deals with the application of existing laws viz-a-viz the imposition of an additional Tax or a Surcharge over and above the existing levy.
13. As herein before stated the Province of West Pakistan was dissolved through the Province of West Pakistan (Dissolution) Order, 1970. According to Article 19 of the said order, the West Pakistan Finance Act, 1964 was a valid and existing Law at the time of Dissolution of West Pakistan, it may be mentioned that consequent upon the said Dissolution, the following Provinces and other Territories were constituted:-
(a) Provinces of Baluchistan, N.W.F.P. Punjab and Sindh.
(b) Centrally administered areas-
(i) Islamabad Capital Territory.
(ii) Centrally Administered Tribal Areas.
14. It needs no gain saying that all existing laws on the date of Dissolution of West Pakistan were to remain in operation until altered repealed or modified by the competent legislatures.
14. The learned counsel for the petitioner has not seriously contested the vires of West Pakistan Finance Act, 1964 upon the touchstone of the Legislative requirement contained in 1962 Constitution, in any case the promulgation of Act XXXIV of 1964 is not violative of Articles 131 or 132 of the Constitution of Pakistan, 1962. Thus, the levy Electricity Duty i.e.f. The 1st day of July, 1964 in all the territories that comprised the erstwhile West Pakistan does not suffer from being un-Constitutional.
15. The provisions of the Act of 1964 would certainly fall within the category of "existing laws" and shall continue to remain in force in the Islamabad Capital Territory unless altered or amended by the competent legislature.
16. The reference to Article 268 of the Constitution of Islamic Republic of Pakistan, 1973 would not advance the case of the petitioner.
Article 268 provides as under:-
268. (1) Except as provided by this Article, all existing laws shall, subject to the Constitution continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriative Legislature.
(2) The laws specified in the Sixth Schedule shall not be altered repealed or amended without the previous sanction of the President.
(3) For the purposes of bringing the provisions of any existing law into accord with the Provisions of the Constitution (other than Part II of the Constitution), the President may by Order, within a period of two years from the commencing day, make such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any such Order may be made so as to have effect from such day, not being a day earlier than the commencing day, as may be specified in the order.
(4) The President may authorize the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by Clause (3) in respect of laws relating to matters with respect to which the Provincial Assembly has power to make laws.
(5) The powers exercisable under Clauses (3) and (4) shall be subject to the provisions of an Act of the appropriate Legislature.
(6) Any Court, Tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an order made under Clause
(3) or Clause (4) construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution.
(7) in this Article, "existing laws" means all laws (including Ordinance, Order-in-Council, Orders, rules bye-laws, relations and Letters Paten constituting a High Court, and any notifications and other legal instruments having the force of law) in force of Pakistan or any part thereof, or having extra-territorial validity, immediately before the commencing day.
Explanation. - in this Article, "in force" in relation to any Im*' means having effect as law whether or not the law has been brought into operation.
17. The West Pakistan Finance Act of 1964 including the charging section viz. Section 13 ibid is the existing law both for the purposes of the Province of West .Pakistan (Dissolution) Order, 1970 and Article 268 of the Constitution of Islamic Republic of Pakistan, 1973.
18. It is not denied by the learned counsel for the petitioner after the of West Pakistan (Dissolution)
Order, 1970 and the coming into force of the Constitution of 1973, the appropriate Legislature in the Islamabad Capital Territory is the Federal Legislature, it is also not controverted that Federal Legislature has not brought about any adaptation alteration Repeal or amendment in Section 13 subsection (1) of the West Pakistan Finance Act of 1964.
19. This being the case, it is idle for the learned counsel for the petitioner to rely upon the provisions of Punjab Finance Ordinance (XIII) of 1978 whereby Section 13 sub-section (1) of the Act XXXIV of 1964 has been substituted. According to the correct legal position, the substitution of Section 13 sub-section (1) would be deemed to have been brought about at as far as it related to the Territories which are subject to the Provincial Legislature and would not take effect in respect of the Islamabad Capital Territory. This would be in consonance with the letter and spirit of Article 268 of the Constitution of Pakistan, 1973 as well as Article 19 of the Province of West Pakistan (Dissolution)
Order, 1970.
20. Having held thus there is no difficulty in coming to the conclusion that incidence of the levy of Electricity Duty through the West Pakistan Finance Act of 1 964 shall remain unaffected in its application to the Islamabad Capital Territory.
21. The reliance placed upon the case of Hashwani Hotels Ltd. Vs. Government of the Punjab, etc. (PLD 1981 Lahore 221) is not relevant in the circumstances of the present case, in the said case the imposition of Hotel Tax under- Provisions of the Punjab. Finance Ordinance, 1978 was challenged.
Obviously, Punjab Finance Ordinance, 1978 being Provincial Law could not apply to the Islamabad Capital Territory, it was rightly held that under Article 142(d) of the Constitution, it was only the Parliament which had the exclusive jurisdiction to make laws for such areas in the Federation. The present case stands on a different footing as. The Electricity Duty had been levied under West Pakistan Finance Act af 1964 which continued as an existing law even after the Province of West Pakistan (Dissolution) Order, 1970. As already observed the amendment of the West Pakistan Finance Act, 1964 through the Punjab Finance Ordinance of 1978 did not adversely effect the applicability of the Finance Act to the Islamabad Capital Territory. The case in hand is more aptly to be governed by the Rule laid down in the case of Islamabad Club Vs. Punjab Labour Court No. 2, etc. (PLD 1981 SC 81), wherein, the West Pakistan Industrial and Commercial Employment (Planning Order) Ordinance, 1968 was held to be applicable to the Islamabad Capital Territory even after the Dissolution of Province of West Pakistan.
22. The question of manner in which the said duty is to be collected poses no procedural difficulty, it is admitted that the said duty is being recovered by the respondents Nos. 3 to 6. Obviously, the dues shall be chargeable to the relevant head of account, in any event this is not a matter touching upon the rights of the petitioners.
23. In view of the above, there is no merit in this writ petition which is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.