1. G. N. KAZI, J.-The petitioner manufactures and supplies iron poles/sockets according to specification to the Pakistan Telegraph and Telephone Department, Ministry of Communications, Government of Pakistan, under a contract. The delivery is partly made at Telegraph Stores Depot, Kotri. The petitioner filed petition on 2nd January, 1979, challenging the levy and collection of Octroi at the barrier on the Kotri Bridge by the Peoples Municipality Kotri, Respondent No, 1, through octroi contractor respondent No,
2. The grounds taken were that respondent No, 1 can levy and collect octroi with previous sanction of the Provincial Government as provided by section 71 of the Sind Peoples Local Government Ordinance, 1972 and iron poles/sockets are not covered by any of the items of Schedule to the West Pakistan Municipal Committee (Imposition of Taxes) Rules, 1964 and further that the respondent No, 1 had no legal power to give licence for collecting octroi to respondent No, 2.
2. While arguing the case of the petitioner Mr. Rasheed Akhund the learned: counsel for the petitioner raised the point which had for the first time been taken in the affidavit in rejoinder on 27th February, 1979 that no octroi is payable on the goods being supplied at the yard in Kotri the property in the same vests in the Federal Government and not in the petitioner. Since such plea had not been mentioned even in the Memorandum of the petition it was pointed out to the learned counsel that he was precluded from, taking the fresh plea. Since however, the point raised was a legal plea, the Memorandum of the petition was allowed to be amended to include the plea. The Federal Government was not made a party.
3. The learned counsel for the petitioner has based the plea that the iron pipes/sockets being the property of the Federal Government are exempted from taxation under any Provincial Law, on Article 165 of the Constitution which reads as under :- "165. Exemption of certain public property from taxation.--(1) The Federal Government shall not in respect of its property or income, be liable to taxation under any Act of the Provincial Assembly and, subject to clause (2) a Provincial Government shall not in respect of its property or income, be liable to taxation under Act of Parliament or under Act of the Provincial Assembly of any province.
(2) If a trade or business of any kind is carried on by or on behalf of the Government of a Province outside that Province, that Government may, in respect of any property used in connection with that trade or business or any income arising from the trade or business, be taxed under Act of Parliament or under Act of the Provincial Assembly of the Province in which that rate or business is carried on.
(3) Nothing in this Article shall prevent the imposition of fees for services rendered."
The assertion that the property in the goods at the time that same were imported within the jurisdiction of respondent No, 1 had passed to the Federal Government cannot be accepted without question as the same involves mixed question of facts and law and interpretation of the terms of the contract specially when the Federal Government is not a party in these proceedings.
4. On behalf of the respondents it has been pointed out that terms and conditions of the contract a copy of which has been brought on record by the petitioner read as under "Conditions of Contract
(i) The stores must conform to the specification laid down in clause (16).
(ii) The prices as indicated in column 6 of clause (16) are firm and final and including Sale Tax, duties and other taxes and handling charges, etc., etc. No request for price hike due to any reason during the course of supply will be entertained except revision vide. Section 64-A of Sale of Goods Act, 1930.
(iii) The raw material will be procured by suppliers themselves without any assistance from this office whatsoever.
' On behalf of the respondents emphasis has been put On the fact that all tares etc. Have to be paid by the petitioners and that the warranty clause in the Contract inter alia provides that, in the event of any stores received at consignees premises are found defective, the same shall have to be replaced free of charge by the suppliers. Reference has also been made to clause (2) of the contract which is to the effect that in case of dispute the decision of Director Telegraph Store and Workshops, Karachi will be final and binding. It has also been pointed out that the Test Report Certificate produced by the Petitioner as Annexure C-1 to the affidavit in rejoinder dated 25th February, 1979 inter alia mentions that no socket should be accepted which does not bear the initials of E. S. S. Testing K. R. And the certificate also mentions that it is subject to receipt of stores in good and serviceable condition at the consignees end.
5. It is therefore, argued that till delivery, verification and acceptance at the Kotri Yard, the property in the goods could not be considered to be of the Federal Government. The above-mentioned arguments have been put forth only to show that the question with regard to ownership of the iron poles at the Octroi barrier is one of facts and law which cannot be gone into and decided at this stage specially in view of the fact that the Federal Government said to be the owner of the goods has not been made a party to these proceedings.
6. The learned counsel for the petitioners had ' argued that the Provincial Law and Rules under which octroi was being levied and collected on goods belonging to the Federal Government was to that extent ultra-Tress in view of the provisions of Article 165 of the Constitution. The contention is obviously misconceived. The West Pakistan Municipal Committee Octroi Rules, 1964 apply to the instant case and Chapter XVIII of the same provides for exemptions. Rule 137 thereof is, to the effect that articles specified in Appendix C shall be exempted from payment of octroi subject to the production of a certificate by the authority specified therein. Item 3 in Appendix C reads as under :- "Goods belonging to the Central Government of Pakistan subject to the production of a certificate signed by a gazetted officer of the Department concerned, to the effect that the property belong to the Central Government and is intended for official use only."
5. It is therefore, quite clear' that there is no repugnancy with the provision in Article 165 of the Constitution. The rules provide for rational procedure for securing the exemption and we see no reason to accept the contention on behalf of the petitioner that mere declaration by person in charge of the goods at the Octroi Barrier should suffice to earn the exemption as such simplification of procedure can lead to evasion of the levy.
6. The petitioner has challenged the levy and collection of Octroi mainly on the ground that iron poles/sockets are not specified in any item of the octroi schedule. On the other hand Respondent No, 2 submits that the goods are covered by any of the three Items Nos. 128, 134 and 206 (0) which read as under :- "128. Tolls and appliances not specified elsewhere - Rs, 5` per maund.
134. All tolls, goods, appliances and apparatus to be used for mechanical purpose not specified elsewhere-Rs, 10 per maund.
' 206 (0) Iron bars, girders. Sarias Pipes, Rails and other heavy material made of iron and used in the construction of buildings-Rs, 2.50 per maund.
' A sample of the iron poles/sockets was produced in Court and it was noted that there can be no doubt that article in question is an iron pipe. According to Mr. Rasheed A. Akhund the learned counsel for the petitioner, the pipe is not meant to be used in building construction and it is therefore, not covered under Item 206 (0) of the Schedule. He argued that the pipe is also not covered by Item No, 128 or No, 134 as it cannot be said to be a tool appliance, or apparatus to be used for mechanical purposes or a tool or appliance at all. On the other hand Mr. Abdul Qadir Halepota, the learned counsel for respondent No, 2 has pointed out that the iron pipe is covered under Item No, 134 as it could be considered as goods used for mechanical purposes since it is used as socket for putting up telegraph poles on which are rested the telegraph wires. The learned counsel has further pointed out that rule 45 provides that if any article is not specifically mentioned in the Octroi Schedule and is not otherwise exempted it shall be charged under the item which in the opinion of the Octroi Clerk is allied and comparable to the article in question. Undoubtedly the article is an iron pole which is mentioned in rule 206 (0) though if the contention is accepted that it is not used in building construction it could well be said to be comparable to iron C pipe used in building construction. The learned counsel for respondent No, 2 has relied on the decision of this Court in BECO Industries Ltd. v. The K. M. C. (1) in C. P. Nos. 17/71, 261/72 and 76, 665/73, (particularly the paragraph side lined C on page 1016) wherein the provision of appeal under the West Pakistan Municipal Octroi Rules, 1964 in rule 48 was considered as an alternate and adequate remedy. The rule reads as under :- "48. If there is any doubt or dispute about the assessment of octroi on any goods, or the liability of any goods to octroi, the octroi shall be paid according to the demand of the octroi clerk and the person aggrieved any appeal to the Taxation Officer in accordance with the provisions of Chapter XXVIII of the Rules."
9. It has however been argued that the facts of the present case are different as the respondent, Municipal Committee has leased out the collection of octroi to respondent No, 2 and under Chapter XXX of the Municipal Octroi Rules, 1964, added by Notification No, SO 11 (Lg)-3 (202/67. Rule 226, cl. (d) provides inter alia that Jules contained in Chapter XXVIII shall not apply except rules 218 and it). The scope of appeal in the present case, therefore, is narrowed down cases in which there is miscalculation or error and in such cases excess charged from any person could be the matter of enquiry by Taxation Officer for refund of the amount. However, for the reasons already stated there was no illegality committed in charging octroi under Item 206 (0) of the Octroi Schedule.
10. It has been satisfactorily explained that the Govt. Of Sind vide letter No, SO. 11-6 (7)/76 dated 9th August, 1976 had empowered the D Municipal Committee to auction the octroi contract instead of collecting through their own officials. The contention on behalf of the petitioner (1) p L 13 1976 Kar.
1011 that respondent No, I had no authority to give licence for collection of octroi to respondent No, 2 cannot be accepted.
11. It may also be stated that the previous octroi contractor, Mujeeb Ahmed Khan, had filed Suit No, 15 of 1977 in the Court of Civil Judge, Kotri for declaration that the Petitioner was liable to pay octroi tax to him and for permanent injunction from importing taxable material for Kotri without paying octroi. A copy of the judgment has been produced and it would appear that the suit was decided ex parte on 27th April 1979 and the Advocate for the petitioner had filed application for setting aside order for ex parte proceedings on 8th April, 1977. On 22nd April, 1977 the date fixed for hearing the application the petitioner and his Advocate remained absent. The petitioner did not file appeal to get the decree set aside.
12. For the reasons given above no case is made out for interference by this Court and the petition is accordingly dismissed with costs.
' ZAFFAR HUSSAIN MIRZA, J.-I have had the benefit of reading the Judgment proposed to be delivered in this case by my learned brother B. G. N. Kazi, J. As the facts are fully set out in the Judgment of my learned brother, it is not necessary for me to repeat them. Suffice it to say that the following main questions arise for determination in this case :-
(a) Whether the goods in question are exempted from levy of octroi duty by virtue of the alleged fact that the property in the goods vests in the Federal Government at the time of their import within the octroi limits of the Kotri Municipal Committee.
(b) Whether the goods in question fall under any. Of , .Ie categories mentioned at Items Nos. 128, 134 and 206(o) of the amended Octroi Schedule issued under section 71 of the Sind People's Local Government Ordinance, 1972.
(c) Whether the present petition is incompetent for the reason that the petitioner has alternate and efficacious remedy provided by law.
2. On the first question it was contended for the petitioner that by virtue of Article 165 of the Constitution the Federal Government is exempted in respect of its property from taxation under any provincial enactment and, therefore, to the extent the Municipal Committees Octroi Rules, 1964 authorize the of octroi duty, they are ultra vires the aforesaid provision of the ' situation. It may at once be stated that as pointed on by my learned b other rule 137 of the aforesaid Rules read with Item No, 3 of Appendix "C" thereto by providing exemption from the payment of duty on goods belonging to the Central Government, the rule-making authority has taken care to avoid conflict with the provisions of the Constitution. The rules are, therefore in no way repugnant to Article 165. I also agree with my brother that there is no force in the contention of the learned counsel for the petitioner that the Municipal. Authorities would be bound to accept oral declaration as to the ownership of the goods in question. Item No, 3 of Appendix "C" to Rules provides for the procedure for claiming exemption in regard to goods belonging to the Central Government by providing for the production of a certificate signed by a Gazetted Officer of the concerned department and in doing so no provision of the Constitution is violated. On the contrary the procedure gives effect to the mandate contained in the Constitution and merely lays down the procedure for carrying out the said mandate. The provisions of Rules assailed, therefore, are the machinery provisions of giving effect to the Constitution and, therefore, are not liable to be struck down. As, to the question whether in the particular facts of this case the exemption was liable to be granted is a matter which cannot be determined in view of the frame of this petition. In the first place the petition does not seek to challenge any specific demand in respect of any specific consignment of goods, but the grievance of the petitioner as disclosed in the petition relates generally to the consignments of goods imported within the octroi limits in respect of the goods described. It will be a matter for determination in the facts and circumstances pertaining to each consignment whether the goods belonged to the Federal Government. Fortunately, for the petitioner the matter has not been left to the adjudication of the concerned Municipal Official but the certificate by a Gazetted Officer of the department concealed to the effect that the property belongs to the Central Government and is intended for official use only has been made conclusive for the purposes of exemption. I am, therefore, unable to see how this grievance can be brought before this Court as it should not be difficult for the petitioner, if the goods really belonged to the Government to obtain and produce such certificate at the time the goods are brought within the Municipal limits. The first contention raised by the learned counsel is, therefore, devoid of force.
3. As to the second question, the submission on behalf of the petitioner was that the goods in question do not specifically fall under any category of goods mentioned in any of the Items of the Schedule and are, therefore, not liable to be taxed. Such a. Situation is not envisaged in the Rules as rule 45 provides as under :- "If any article is not specifically mentioned in the Octroi Schedule and is not otherwise exempted, it shall be charged under the item which in the opinion of the Octroi Clerk is allied or comparable to the article in question."
' It was thereupon contended that the goods by application of the aforesaid Rule would fall under Item No, 206(t) chargeable at the rate of Re.
0.03. Item 206 deals with the general heading of 'building materials' and sub-Item (t) reads as follows :- "Electric fittings and goods required for the construction of buildings."
' On behalf of respondent No, 2 it was on the other hand, contended that the goods admittedly being intended for use for mechanical purpose fall under Item No, 134 chargeable at the rate of Rs, 10 per maund. In the alternative it was argued that the goods are comparable with the category mentioned in Item No, 128 relating to appliances chargeable at the rate of Rs, 5 per maund of the category mentioned at Item No 206(o) being heavy material made of iron chargeable at the rate of Rs, 2.50 per maund.
3. There is no dispute between the parties about the description of the goods, which consists of Cast Iron Sockets of prescribed specifications, conical in shape 4'-7" long, used by the Pakistan Telegraph and Telephone Department as a foundation base for holding poles to support the telephone and telegraph wires. If also seems to be admitted that the Octroi Schedule does not specifically mention such goods in any of the Items described therein. Items Nos. 128 and 134 both fall under Class XIII relating to `Articles for Metallurgical and Mechanical purposes' and as already pointed out Item 206 deals with the class of goods under the heading building materials'. The question for determination, therefore, is whether the goods in question are allied or comparable to the Class of goods mentioned by the parties respectively as contended. It was urged on behalf of the respondents that this question is a matter of enquiry on facts and must be left to the concerned departmental authorities. In my opinion, the question raised is a question of interpretation of law and has to be properly determined in these proceedings, for there is no dispute about the nature and description of the goods. It was further urged on behalf of the respondents that these goods are used for mechanical purpose and ace, therefore, comparable to goods falling under Item No, 128 or.
134. Alternatively, the submission was that since the goods can be used as a building material as sanitary or drainage pipes, they are comparable with the goods under Item 206(o). It is unfortunate that the concerned authorities are unable to make up their mind even at this stage to come out with a specific classification. If the pipe in question can be compared and considered as an allied article with the sanitary goods and fittings then it could fall under Item 206(o) which relates to sanitary goods and fittings chargeable with Re.
0.03 and not with Item 206(0 relating to electric fittings etc. However, the guidelines laid down by rule 45 are that the goods can be charged under the Item which is "allied or comparable" to the article mentioned in any other Item. The words "allied to" mean according to the dictionary meaning as "connected with" ; and the word "comparable" means that which can be compared with. The word "compare" means liken or estimating the similarity of one thing with another..
Bearing in mind the language employed in the aforesaid Rule, therefore, the common characteristic of the goods enumerated in the Item under which the Taxing Officer seeks to levy the tax has to be determined and applied to the gods in question, in order to determine the connection or comparison between the two. There hardly appears to me any similarity or connection between the electric fittings as the expression is commonly understood and the goods in question. Nor can the goods be equated in that respect with sanitary fittings as it is common knowledge that such fittings even though made of metal cannot be said to be "heavy" which is the main determining factor so far as Item 206(o) is concerned. I am, therefore, clearly of the view that classification of these goods under sub-item (t) will not be just and proper. A somewhat similar question was raised in Pakistan Steel Products v. Controlling Authority K. M. C. (1), in which a similar item came up for interpretation in connection with the import of M. S. Bars, Angles, Tees etc. Item 1(c) in Class VIII of the K. M. C. Octroi Schedule described the articles as under :- "Iron Beams, Girders, Rails and all other heavy materials made of Iron used in the Construction of buildings."
' It was observed by I. Mahmud, J.
"No doubt, the word "heavy" is a relative term depending on length, (1) PLD -1977 Kar.. 1027 thickness or gauge. But the word "heavy" has to be construed in relation to iron beams, girders and rails which precede the words "and gill other heavy materials" in Item 1(c). The common characteristic of iron beams, girders and rails is that they are heavy materials. This is clear from the words "other heavy materials", therefore, suggesting that other materials in order to fall in Item 1(c), should also be heavy materials, like iron beams, girders and rails."
Thus the determining factor for application of the Item under consideration is that the article or material should be heavy to be considered as comparable with the goods mentioned therein.
There can hardly be any dispute that the goods in question are cast iron pipes and Item 206(o) also includes iron pipes in its description. Consequently, it is reasonable to hold that the goods in question are comparable to the goods classified , under the aforesaid Item 206(o). The fact that this pipe cannot be used in construction of buildings is not relevant for the simple reason that the classification is being determined with reference to rule 45 as an article which is not specifically mentioned in the Octroi Schedule. This conclusion is further strengthened by the fact that the respondents themselves have classified these goods under the aforesaid Item and had charged duty a the rate of Rs, 2.50 as mentioned in paragraph 7 of the Petition. Since it is admitted by the respondents that they have been levying octroi duty on the aforesaid basis, it is unnecessary to examine the contention that the goods would fall under Item 128 or 134.
5. Coming now to the last question about the maintainability of this petition, it was urged on behalf of the respondents that the petition is not maintainable as the petitioner has alternate and adequate remedy of appeal available under rule 216 of the Octroi Rules. Reliance in this behalf was placed on BECO Industries Ltd. v. Karachi Municipal Corporation (1), where it was held that as the petitioner had alternate remedy of appeal under rule 48 of the Octroi Rules available, the constitutional jurisdiction of this Court could not be invoked. Rule 48 no doubt provides that in case of a dispute about the assessm ent of Octroi on any goods, or the liability of any goods to octroi, the person aggrieved may appeal to the Taxation Officer in accordance with the provisions of Chapter XXVIII of the Rules. However, the facts in the present case are materially different inasmuch as admittedly in the present case the respondent Municipal Committee has leased out by public auction the collection of octroi to respondent No, 2 under Chapter XXX of the Rules and clause (d) of rule 226 provides, inter alia, that Rules contained in Chapter XXVIII shall not apply except rules 218 and 219. The appeal is provided under rules 216 and 217 both of which have been excluded from operation if the Municipal Committee leases out the collection of octroi to any person. , Obviously, therefore, the statutory remedy of appeal is not open to the petitioner in the present case. It, therefore, follows that the petition is maintainable and no fault can be found with it on this account.
6. The petitioner has challenged the right of the respondents to levy and collect Octroi on his goods imported within the octroi limits of the Municipal Committee, but as held by me he is liable to be charged octroi under Item 206(o) of the Octroi Schedule. He has further sought the relief to the effect that respondent No, 1 was not competent to authorise (1) PLD 1976 Bar, 1011 respondent No, 2 to collect octroi, but very rightly this relief was not urged at the hearing.
7. In the result, I would agree with my learned brother that this petition merits to be dismissed but for different reasons as mentioned above.