' On 7-5-1994 the petitioner filed a suit against the respondents. In the plaint it was stated that the petitioner was awarded the contract for collection of octroi in the limits of Town Committee, Farooka, for the year 1990-91. According to him, the respondents imported gunny bags into the limits of the said town committee and octroi amounting to Rs,4,107.75 was payable but was not paid. Alongwith the ten times penalty the amount comes to Rs,45,185.25. He, however, restricts the claim to Rs,25,000. The decree in this amount was accordingly prayed for. The respondents Nos.1 and 2 in their written statement proceeded to state that the octroi for the gunny bags has already been paid to the Sargodha Municipal Corporation and the gunny bags are used for packing of foodstuffs for delivery to Aasianwala. Issues were framed. Evidence of the parties was recorded.
The learned trial Court decreed the suit vide judgment and decree dated 19-4-1995. A first appeal filed by the respondents Nos. 1 and 2 was allowed by the learned A.D.J., Sargodha, on 21-11-1995 who dismissed the suit of the petitioner.
2. Learned counsel for the petitioner contends that the learned A.D.J. Has acted with material irregularity in the exercise of his jurisdiction while holding that the matter is governed by rule 91-A of the West Pakistan Municipal Committees (Octroi) Rules, 1964. According to the learned counsel, the said rule applies to foodstuffs not to the gunny bags and further that the gunny bags were, in fact, consumed within the limits of the Town Committee, Farooka. The learned A.A.-G., on the other hand, argues that the gunny bags were used to pack the foodstuffs for onward transmission and it cannot be said that these were consumed within the said limit and further that octroi had already been paid to the Sargodha Municipal Corporation. Learned A.A.-G. Further contends that in any case the 10 times penalty could not have been charged in the facts of the present case.
3. I have gone through the copies of the records, with the assistance of the learned counsel and the learned Law Officer. Now the position that emerges from the evidence on record is that the gunny bags were brought within the limits of the Town Committee, Farooka, during the relevant period and that the payable octroi comes to Rs,4104.75. On the other A hand, it stands proved that the octroi for the said gunny bags was paid to the Municipal Corporation, Sargodha, upon entry into the A said limits and according to D.W.1 it is the practice that when the gunny bags are brought from the Jute Mills to the primary center at Sargodha, the octroi is paid to the Municipal Corporation Sargodha.
' Thereafter, the bags are taken to the different centers for packing the foodstuffs for transmission to the subsidiary centers. To my mind, the evidence and record sufficiently substantiate the factual plea that the octroi was paid to the Municipal Corporation, Sargodha.
4. Rule 91-A of the said Rules lays down that the Government stocks of foodstuffs when stored in godowns maintained by the Government shall be considered as retention of goods at an octroi warehouse and no charge shall be levied by the Municipal Committee on such stocks so long as they remain in such godown and that the octroi duty will be levied at the prescribed rates only on such quantities of foodstuffs as are taken out of such godowns for sale or consumption within the limits of the municipality.
5. To my mind a plain reading of the said rule would show that it applied only to the foodstuffs and not to the gunny bags used to pack the said stuffs. The judgment of the learned A.D.J., therefore, cannot be sustained. However, at the same time, in view of the somewhat admitted facts of this case, it is evident that the octroi in respect of the gunny bags was paid to the Municipal Corporation, Sargodha, by the respondents Nos.1 and 3. Now under the law the octroi is to be charged as a tax on the import of such goods as are brought for consumption, use or sale within the octroi limits. Now the said gunny bags were not to be consumed or used within the limits of the Sargodha Municipal Corporation, rather they were to be brought to Farooka for being used as packing material for the said food stocks. This being so, the Sargodha Municipal Corporation, ought not to have charged the said octroi and instead a pass should have been issued in terms of rule 83 read with rule 84 of the said Rules. Be that as it may, a case of intentional avoidance of the said octroi has not at all been made out. It can be safely assumed that the respondents Nos.1 and 2 having paid the said octroi to the Sargodha Municipal Corporation, bona fide entertained the impression that they are not liable to pay the same again to the Town Committee, Farooka.
6. This civil revision, therefore, is partly allowed inasmuch as the judgment and decree passed by the learned A.D.J., Sargodha, on 21-11-1995 is set aside while the judgment and decree dated 19-4- 1995 passed by the learned trial Court is modified and the suit of the petitioner is decreed against the respondents Nos.l and 2 in the sum of Rs,4107.75. No orders as to costs.