MUHAMMAD AKRAM, J.--This is a petition under Article 98, of the late Constitution of Islamic Republic of Pakistan, 1962, filed by Syed Said Mohammad, Secretary Cloth Merchants. Association Cloth Market, Quetta, and Anwar Kamal, Secretary, Quetta Chemists Association, Quetta challenging the validity of the Octroi charged, by the Quetta Municipal Committee on the commodities, imported within its territorial limits, ad valorem: even after the introduction of the West Pakistan, Municipal. Committees (Octroi) Rules, 1964 (hereinafter called the Rules). The petitioners have asserted that rule 28 of the Rules lays down that in levying the octroi the Municipal Committee shall be guided by the Model Octroi Schedule annexed as Appendix `A' and that under the said Model Octroi Schedule and the Rules the octroi duty must be charged on the basis of gross weight per maund of the commodities at the specified rates. But in contravention of these requirements, respondent No. 1 is wrongly insisting on charging the octroi duty ad valorem under the old Schedule which has already become obsolete with the promulgation of these Rules. The petitioners have alleged that during the year 1965, the Chairman, Municipal Committee, Quetta, called several meetings of the businessmen and merchants with a view to evolve a Schedule of rates of octroi on the commodities in consonance with the guidelines laid down in the Model Octroi Schedule under the Rules. A Schedule was actually prepared with the consent of the merchants and; 4unicipa: authorities and forwarded to the Provincial Government for their approval. But so far the Government has failed to accord the necessary approval. In these circumstances, on the 19th of July 1969, the petitioners made their representation to the Municipal Committee for an early revision of the Octroi Schedule already in force and for the adaptation of the Model Octroi Schedule for charging the octroi on the basis of weight per maund of the imported commodities. But on the 22nd of July 1969, the Chairman, Municipal Committee, Quetta. In reply informed them that the matter was still under the active consideration of the Government of West Pakistan and that the final decision was being awaited. Afterwards on the 23rd of July 1969, the petitioners filed an appeal/ representation before respondent No. 3, the Commissioner, Quetta Division and the Controlling Authority, Quetta, against the illegal collection of the octroi ad valorem on the commodities under the old and obsolete system. It appears that while their appeal was still pending, the Municipal Committee gave a lease for the collection of the octroi, for a period of one year from the 1st of August 1969, to the 31st of July 1970, by public auction, to respondent No. 2, the highest bidder, for Rs. 34,05,000.00. The Commissioner, Quetta Division, Quetta, gave its approval to the: bid on the 28th of July 1969. It is further alleged in this petition that the lease of the octroi by auction to respondent No. 2, for the collection of the octroi duty ad valorem on commodities was an illegal and a retrogressive step. In these circumstances, the petitioners have prayed for (i) a declaration to the effect that this method of collection of octroi by the respondents on the basis of value (and not weight) of commodities is without lawful authority; (ii) a direction to respondent No. 1 to collect octroi in accordance with the aforesaid Rules and (iii) a declaration to the effect that the lease of the octroi by auction to respondent No. 2 was without lawful authority and has no legal effect.
2. Respondent No. 1 the Quetta Municipal Committee in its rejoinder has in nutshell alleged that the Octroi duty is being rightly charged by them in accordance with the "Octroi Schedule" in force within the definition of rule 2 of the Rules and that they are not bound by the "Model Octroi Schedule" appended to these Rules for guidance only. The respondent has also alleged that in this connection the appeal preferred by the petitioners under section 119 of the Municipal Administration ordinance (X) of 1960, before the Commissioner and the Controlling Authority, Quetta Division, Quetta, is still pending. In the presence of this adequate alternative remedy open to them, their present writ petition was altogether premature and must be dismissed on this short ground alone. The Committee has further averred that the petitioners have been paying the octroi duty, charged from them on the basis of the "Octroi Schedule" in force since 1937 and they are now estopped from challenging its validity after more than 32 years. Respondent No. 2 has filed a separate rejoinder on more or less the same lines. He has also questioned the bona fides of the petitioners who have filed this writ petition for ulterior motives only after the grant of the lease of the octroi to him.
3. In order to fully appreciate the precise nature of this dispute between the parties it is necessary to narrate a brief history of the levy of the octroi within the limits of the Quetta Municipal Committee. At first the Municipal Committee was administered under the Quetta Municipal Law, 1896. Section 21(1)(e) of this law was to the effect that subject to any general rules or special orders which the Governor-General-in-- Council may make, in this behalf, the Agent to the Governor-- General may from time to time impose in the area an octroi on animals for slaughter or goods or both brought within the octroi limits for consumption or use therein such octroi not exceeding one anna on each animal in the case of sheep or goats, and four annas on each animal in the case of other animals and not exceeding Rs. 4.00 a maund or 4 per centum ad valorem on any such goods as aforesaid. By virtue of these powers, the Agent to the Governor-General in Baluchistan, had by Notification No. 1807 dated the 24th of March 1898, introduced a Schedule of rates for the assessm ent of the octroi. Duty on the goods imported within the Municipal limits of the Quetta Municipal Committee. This Schedule of Octroi rates was revised from time to time. Ultimately by virtue of powers vested in him under section 21(1), clause (e) of the Quetta Municipal Law, 1896, and in super session of all previous orders, the Agent to the Governor-- General in Baluchistan, on the 2nd of February 1937, under the Notification No. 638-R, introduced a revised Schedule of Octroi rates in the Municipal Committee of Quetta. In general according to this Schedule the Octroi duty on "Articles of food and drink" was assessed on the basis of weight per maund and on the "Piece goods and other textile fabrics and manufactured articles of clothing and dress" and the "Drugs and Spices" on ad valorem basis on the specified rates therein. Even after the repeal of the Quetta Municipal Laws, 1896 and the promulgation of the Quetta Municipal Laws, 1946, this Schedule of Octroi rates continued to remain in force as before under section 194 of the new Law. On the 15th of April 1960, the Municipal Administra--petition Ordinance (X) of 1960 (hereinafter called the Ordinance) was promulgated for the whole of Pakistan. This had the effect or repealing not no less than 14 different enactments mentioned in the "First Schedule" pertaining to the different Municipal Committees fin the Country, including the Quetta Municipal Law, 1946, under subsection (1) of section 4 of the Ordinance. But by virtue of subsection (2) of this section the "Revised Schedule of Octroi Rates" in force since 1937 was continued in force by the Municipal Committee, Quetta, even after the promulgation of the Ordinance. On the 14th of July 1964, in exercise of the powers conferred under the Ordinance, the Provincial Government made the West Pakistan Municipal Committees (Octroi) Rules, 1964. Rule 28 of these Rules lays down that in levying octroi a Municipal Committee shall be guided by the "Model Octroi Schedule" in Appendix `A'. In general, according to Appendix `A' the octroi duty is to be charged on the different commodities, including the "Articles for Medicinal and Chemical Purposes". "Articles for Weaving, Spinning and Knitting" and "Articles for clothing", etc. Etc. On the basis of the prescribed rates per maund.
4. The grievance of .The petitioners in this writ petition before us is to the effect that after the introduction of these Rules in the year 1964 the Quetta Municipal Committee is bound to charge octroi duty at the specified rates oil the basis of weight per maund in accordance with the Model Octroi Schedule on the commodities imported within its territorial limits and not on the basis of the Old Schedule of Octroi Rates introduced far back in the year 1937 on ad valorem basis.
5. As already mentioned under subsection (1) of section 4 of the Ordinance the Quetta Municipal Law, 1946 was repealed. In this connection subsection (?) of section 4 of the Ordinance lays down that : "Where an enactment stands repealed under subsection (1), any appointment, rule, regulation, or bye-law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and the rules, be deemed to have been respectively made, issued, imposed or assessed, entered into instituted or taken under this Ordinance. "It was by virtue of this provision in the Ordinance that the "Revised Schedule of Octroi Rates", at first introduced in the year 1937, was continued in force even after the promulgation of the Ordinance. No new levy of Octroi was made by the Quetta Municipal Committee superseding the old Schedule which has continued in force. To levy a tax, rate, toll or fee, warranted under the law, the Municipal Committee has got to follow the procedure laid down in section 33 of the Ordinance. This is as under: --- "A Municipal Committee, with the previous sanction of the Government may levy, in the prescribed manner, all or any of the taxes, rates, tolls and fees mentioned in the Third Schedule," and the Third Schedule under item (iv) specifically provides for the levy of taxes on the import of goods for consumption, use or sale in a Municipality. According to the Oxford English Dictionary the word "levy" means both the imposition and realization of a tax or a fee. In this connection Mr. Masud-ul-Hassan, th learned author of the "Manual of Municipal Administration Law & Practice", Part 1, page 295 has observed that "The term `levy' means any proceedings taken to impose the tax as well as to determine the liability of a person to a tax and finally collecting the tax. The levy of a tax is the legislative act of local council decreeing that the tax shall be imposed". In our opinion, in this section this expression has been used in a narrow sense and in this section a machinery is provided for the Municipal Committee for the imposition of a tax, rate, toll and fee. Thereby the Municipal Committee is vested with the subordinate legislative powers to introduce a new Schedule of Octroi Rates, with the previous sanction of the Government, in the prescribed manner.
This section, by no means, can be interpreted to be a charging section. This interpretation is fully in consonance with the whole scheme of Chapter II of the Ordinance relating to "Municipal Taxation", commencing with section 33. Subsection (1) of section 34 lays down that all taxes, rates, tolls and fees "levied" by a Municipal Committee shall be notified in the official Gazette, and subsection (2) provides that where a proposal for the levy of a tax, rate, toll or fee is in force, is sanctioned, the sanctioning authority shall specify the date for the enforcement thereof. Section 53 of the Ordinance lays down that the Government may frame Model Tax Schedules, and where such Schedules have been framed, the Municipal Committees shall be guided by them in "levying" a tax, rate, toll or fee. According to section 36(1)(a) the Government may direct any Municipal Committee, to "levy" any tax, rate, toll or fee which the Municipal Committee is competent to "levy" under section 33 of the Ordinance. The determining of the liability or the assessment of any person and goods to tax, rate, toll and fee is separately dealt in section 37 of the Ordinance and in thin connection, subsection (1) of section 38 further lays down that all taxes, rates, tolls and fees, "leveled under the Ordinance" shall be "collected" in the prescribed manner. From this discussion it is evident that the process of continuing tire original Octroi Schedule of the year 1937, by virtue of the provisions of subsection (2) of section 4 of the Ordinance, must be distinguished from the procedure required for the imposition and levy of a new Octroi Schedule under section 33. The old Schedule shall continue to remain in force until superseded, altered or modified by the Municipal Committee, Quetta.
6. Rule 2(o) of the Rules has defined the "Octroi Schedule" to mean the Octroi Schedule in force in the Municipality. As discussed above, the Old Schedule of Octroi Rates introduced in the year 1937, was continued in the Municipality of Quetta even after the promulgation of the Ordinance. This Schedule, therefore, became the "Octroi Schedule" within the meanings of Rule 2(o) of the Rules introduced on the 14th of July 1964. Inr this connection Rule 42 of the Rules specifically lays down that the octroi shall be assessed in accordance with the rates specified in the "Octroi Schedule", even after these Rules were Introduced, so long as it was not superseded. However, before us Mr. Yahya Bukhtiar, the learned Advocate for the petitioners has strongly relied on the provisions contained in section 35 of the Ordinance read with Rules 28 and 46 of the Rules in support .Of his case. Section 35 of the Ordinance lays down that the Government may frame Model Tax Schedules and where such -Schedules have been framed, the Municipal Committee "shall" .Be guided by them in "levying" a tax, rate, toll or fee. In the same connection Rule 28 provides that in "levying" octroi, Municipal Committee shall be guided by the Model Octroi Schedule in Appendix 'A'. A Municipal Committee may adopt the Model Octroi Schedule with any modification or with such modification -as it may deem necessary. In the Model Octroi Schedule framed by the Government annexed as Appendix 'A' to the Rules, the basis of assessment of Octroi duty on the different articles, including the "Articles for Medicinal and Chemical Purposes", "Articles for Weaving, Spinning, Knitting" and "Articles for Clothing" is mostly on the maundage basis, at the specified rates per maund. But both these provisions shall come into operation only after the Quetta Municipal Committee has invoked its powers under section 33 for the imposition and levied a new Octroi Schedule. So far that occasion has not even arisen. Moreover reading section 35 with Rule 28 together, there is no doubt left in our mind that the Model Octroi Schedule framed by -the Government is at best a model for the technical assistance and guidance of the Municipality in framing its tax proposals. The Municipal Committee may adopt the Model Octroi Schedule with or without any modification in its discretion. The Municipal Committee has a large measure of independence in the matter and these provisions are not obligatory for the Committee. On this view of the matter, we find that there is nothing inconsistent in the "Octroi Schedule" in force, with any of the provisions of the Ordinance and the Rules made there under offending against subsection (2) of section 4 of the Ordinance.
8. Rules 46 of these Rules on which the learned counsel has next relied is as under: --- "Octroi shall be calculated on the gross weight of the consignment including packing and other containers; provided that where the containers outweigh the principal goods, or are to be used frequently, the Municipal Committee may, with the approval of the Controlling Authority, determine the standard weight on the basis of which such goods or containers shall be taxed."
Therefore, the learned counsel has vehemently contended that under all circumstances the octroi must always be calculated on the basis of weight. On first impression this argument appeared to us to be somewhat plausible. But on a deeper and further consideration we find that there is no force in this contention. Chapter IV of the Rules commencing with Rule 28 deals with the imposition or the "levy" of the Octroi Schedule within the meanings explained above. But Chapter VI, from Rule 41 to Rule 49 of these Rules, relates to the "Assessment and Collection of Octroi" by the Municipal Authorities after the goods are presented at the octroi post. Under Rule 41(1) the Octroi Clerk shall "assess" the octroi payable in respect thereof. In the same connection Rule 46 lays down that the Octroi shall be "calculated" on the gross weight of the consignment. Similarly Rule 47 provides that in the case of goods carried in bulk at wagon rates, the octroi shall be "charged" on the weight for charge shown in, the Railway Receipt. These rules (from Rule 41 to Rule 49) are meant for charging and come into play only after the goods are presented at the octroi post for the purposes of fixing the actual amount due on account of the duty payable to committee. "Assess" according to the dictionary means to fix the amount and "calculate" means to count, to reckon mathematically with or without the help of a table or a book. Therefore Rule 46 only means that, in cases falling under this rule and wherever this rule is applicable, the octroi clerk in the process of his mathematical reckoning in order to fix the amount to be charged from the importer, will take into account the gross weight of the consignment from its not weight.
This is the only reasonable interpretation and any other interpretation of this rule is bound to lead to absurdities. For instance, even according to the "Model Octroi Schedule" attached, as Appendix `A' to the Rules, in the case of Katcha Bricks" and. "Pacca Bricks", the rate prescribed "is per thousand". Similarly, in the case of goats, sheep and cattle the octroi prescribed is at the given rates "per head" and not by weight. These instances can be multiplied and in all those cases it cannot be said that the: octroi clerk must always, without any exception, charge the octroi on the basis of their gross weight under Rule 46. This argument advanced by the learned counsel contains the germs of its own defeat and is untenable. This rule has nothing to do with the "levy" and imposition of the Octroi Schedule by a Municipal Committee in the exercise of its powers under section 33 of the Ordinance.
9. The learned counsel for the petitioner has cited before us Muhammad Ramzan v. The Administrator, Municipal Committee, Jalalpur Jattan (PLD 1962 Lah. 358) dealing with the interpretation of sections 61. And 64 of the Municipal Administration Ordinance. This has nothing to do with the instant case and is hardly relevant. Similarly the reported case in The Punjab Association Club v. The Corporation of Lahore and another (PLD 1963 Lah. 380) relates to the interpretation of different section 41(1) of the Ordinance and is hardly relevant. It has, however, laid down that under section 4(2) of the Ordinance the old assessment could be continued till legally altered and to this extent it is helpful to the respondents. Similarly, the case in Pakistan Tobacco Co.
Ltd. v. Karachi Municipal Corporation (PLD 1967 SC 241) does not advance his case. It has laid down that the continuance of anything done under the previous Act, under subsection (2) of section 4 of the Ordinance is subject to all important conditions, namely; (1) that it should not be inconsistent with the provisions of the Ordinance and (ii) that it should be such that it can be deemed to have been made under the Ordinance and not inconsistent thereof. We have already found above that the Continuance of the "Octroi Schedule" was in no way inconsistent with or contrary to any of the provisions of the Ordinance and the Rules made there under.
10. Before us the learned counsel for the petitioners did not advance any separate arguments Challenging the validity of the auction of the lease by the Quetta Municipal Committee to respondent No. 2 for the collection of the Octroi for a period of one year from 1-8-1969 to 31-7-1970.
We find that under rule 225(t) of the West Pakistan Municipal Committee (Octroi) Rules, 1964, as amended, the Municipal Committee was authorized to lease out the collection of octroi for a period not exceeding one year. In our opinion, therefore, this writ petition has no force and is liable to be dismissed.
11. Before concluding, however we must make mention of a preliminary objection raised before us on behalf of the respondents. It was strenuously contended that an adequate alternative remedy was available tp the petitioners under the law. In fact they had actually filed an appeal/representation on the 23rd of July 1969 against the Municipal Committee in this matter, under section 39 of the Ordinance read with Rule 216 of the Rules, before the Commissioner and the Controlling Authority, Quetta Division, Quetta, which is still pending. In these circumstances it was contended that this writ petition must be dismissed on this short ground alone. In this connection we find that in the appeal/representation filed by the petitioners before respondent No. 3 on the 23rd op July 1969, they had inter alia prayed that the auction of lease for the collection of the Octroi on the old basis may be stopped. But instead of that the learned Commissioner straightaway confirm the auction in favour of respondent No. 2 on the 28th of July 1969 without even hearing the petitioners. Therefore their appeal to a material extent was rendered in fructuous and after this they could not hope for any relief from him. It would mean a sheer waste of time to wait for E its result after respondent No. 3 had virtually overruled them. There is no estoppel against statute and there was nothing to debar the petitioners from filing this petition. On the merits however, we find that this petition has no merits and is liable to be dismissed.
12. For the foregoing reasons this writ petition is dismissed with costs.
R. a. A.