' MUHAMMAD MUNIR PERACHA. J.---The appellant is a public limited company, which has established a cement plant at Sangjani, Islamabad. The petitioner-Company is a consumer of electricity and is being charged at Tariff B-4. Through section 13 of the West Pakistan Finance Act, 1964, electricity duty was levied. Section 13 of West Pakistan Finance Act (XXXIV) of 1964 reads 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 the extent specified therein: ' Provided further that for reasons to be recorded, Government may be 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 the duty collected and paid by him , under this subsection.
(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 subsection (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.
' Subsection (1) of section 13 was substituted through section 5 of the Punjab Finance Ordinance
(XIII) 1978. The substituted section 13 is 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 per cent 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 the Act".
2. The petitioner approached the High Court of Lahore, through Writ Petition No,1959 of 1996, praying therein that the petitioner Company is not liable to pay the electricity duty as it is located in Capital Territory of Islamabad.
3. A learned single Judge of High Court of Lahore, Rawalpindi Bench, Rawalpindi, vide judgment dated 4-4-2003, dismissed the writ petition. Through the present Intra-Court appeal, the appellant has challenged the above said judgment of the learned single Judge.
4. We have heard the learned counsel for appellant as well as the respondent. The learned counsel for the appellant submits that the Islamabad Capital Territory, wherein, the Cement Plant of the appellant-company is located, is not part of the Province of Punjab. According to the learned counsel for the appellant, in view of Article 142 (d) of the Constitution, Parliament have exclusive powers to make laws with respect to matters not enumerated in either of the lists for such areas in the Federation as are not included in any province. The learned counsel submits that the electricity is mentioned in concurrent legislative list. It is the Federal Legislature, which has the power to legislate in respect of Islamabad Capital Territory.
' Contrarily, the learned counsel for the respondent supports the judgment of the learned single Judge.
5. The Establishment of West Pakistan Act, 1955, was promulgated in the year 1955. Section 2(1) of the Act provides:-- "Integration of the Provinces and States into West Pakistan.---(1) The Governor-General shall declare by public notification that as from the date specified in such notification, hereinafter referred to as the "appointed day", the territories which, before the appointed day, were the territories of--
(i) the Governor's Provinces of Punjab North-West Frontier the and Sindh,
(ii) the Chief Commissioner's Province of Baluchistan and the Capital of the Federation.
(iii) the States of Bahawalpur and Khairpur, and the Baluchistan States Union,
(iv) the Tribal Areas of Baluchistan, the Punjab and the North-West Frontier, and the States of Amb, Chitral, Dir and Swat (hereinafter referred to as the "specified territories"), shall be incorporated into the Province of West Pakistan."
6. The area which is now called Islamabad was the part of Province of Punjab at the promulgation of the Establishment of West Pakistan Act, 1955. Therefore, by virtue of section 2 of the Act, it became the part of West Pakistan. On 27-6-1960, the Capital Development Authority Ordinance 1960 was promulgated. Section 3 of the Ordinance empowered the Federal Government to declare any part or parts of the specified area to be the site of the Pakistan Capital. "Specified area" is defined in clause "p" of section 2 of the Capital Development Authority Ordinance 1960. In the year 1962, the Constitution of Islamic Republic of Pakistan was enacted. According to 1962 Constitution, territories of Pakistan shall comprise of:
(i) Province of East Pakistan;
(ii) Province of West Pakistan;
(iii) Such States and territories as are or may become included in Pakistan whether by accession or otherwise", On 26-10-1963, an Ordinance known as Capital of the Republic (Determination of Area) Ordinance 1963 was promulgated. Section 2 of the Ordinance reads as under:-- "The area specified in the Schedule measuring three hundred and fifty square miles or hereabout within the District of Rawalpindi in the Province of the West Pakistan at the site selected for the Capital of Pakistan shall be the area of the Capital of the Republic."
' Despite the declaration of the area of the Capital, the area which is now called Islamabad remained part of the Province of West Pakistan.
' As has already been observed, the Provincial Legislature of the Province of West Pakistan enacted West Pakistan Finance Act, 1964. Section 13 of the Finance Act 1964 levied electricity duty. The Province of West Pakistan was dissolved through the Province of West Pakistan (Dissolution) Order (P.0.1) of 1970. Article 19 of the P.O.! Reads 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, until altered, repealed or amended by the appropriate Legislature or other competent authority.
(2) For the purpose of bringing the provisions of any existing law in 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 by 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."
' Then came the Constitution of Islamic Republic of Pakistan, 1973. Article 1(2) of the Constitution provides; "The territories of Pakistan shall comprise---
(a) the Province of Baluchistan, the North-West Frontier, the Punjab and Sindh;
(b) the Islamabad Capital Territory, hereinafter referred to as the Federal Capital;
(c) the Federally Administered Tribal Areas;, and
(d) such States and territories as are or may be included in Pakistan, whether by accession or otherwise.
' Article 268 (1) of the Constitution provided that, all existing laws shall, subject to the Constitution continue in force. Sub-Article (7) of this Article defines existing laws as; "In this Article "existing laws" means all laws (including Ordinances, Order-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting High Court, any notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extraterritorial validity, immediately before the commencing day."
' What is meant by the word "In force" is mentioned in explanation to Article 268, which provides:-- "In this Article "in force", in relation to any law, means having effect as law whether or not the law has been brought into operation."
' By virtue of Article 268 of the Constitution, section 13 of the West Pakistan Finance Act, 1964, being an existing law and in force in the Capital Territory of Islamabad was to continue in force.
' On 27-6-1978, Punjab Finance Ordinance 1978, was promulgated. Through section 5 of the Ordinance, section 13 of the West Pakistan Finance Act 1964, was substituted. The substituted section 13 has already been re-produced in the earlier part of our judgment.
8(sic).There is no doubt that after 1973, the Provincial Legislature of Punjab could not have legislated with respect to the Islamabad Capital Territory. We would, therefore, agree with the learned counsel for the appellant that the substituted section 13 would not be applicable to the Capital Territory of Islamabad. However, the original section 13 of the West Pakistan Finance Act 1964 shall continue in force in the Capital Tefritory of Islamabad being an existing law in force on the proinulgation of the Constitution of Islamic Republic of Pakistan. The judgment cited by the learned counsel for the appellant: "Hashwani Hotels Ltd., Karachi Versus Government of the Punjab and another, PLD 1981 Lahore 211" is distinguishable, because in the above said judgment, the applicability of the Punjab Finance Ordinance, 1978 was examined by the Hon'able Judge of the Lahore High Court vis-a-vis the Islamabad Capital Territory. In paragraph 13 of the Judgment at page 215 of the report, it was observed:- "The short question thus arising for determination is, could the Provincial Government by virtue of section 6 of the Punjab Finance Ordinance, 1978, require of the petitioner to pay hotel tax for an hotel situate in Islamabad Capital Territory"
' It is thus, clear that in the precedent case, the law declared was that section 5 of the Punjab Finance Ordinance 1978 would not be applicable to the Islamabad Capital Territory.
9. For the above said reasons, we will partly allow this appeal and hold that substituted section 13 of the West Pakistan Finance Ordinance, 1964 (Substituted by section 5 of the Punjab Finance Ordinance, 1978) shall not be applicable to the Islamabad Capital Territory. However, the original section 13 of the West Pakistan Finance Act 1964 shall continue in force in Islamabad Capital Territory and the appellant shall be liable to pay the duty in accordance with the original section 13.
The appeal stands disposed of in the above terms.