1. MUSHIR ALAM, J.--- C.M.A. No. 1065-K of 2016 As regards Civil Petition No.680-K of 2016 being barred by 498 days, learned counsel for the Petitioner submits that consolidated judgments and decrees were passed in two High Court Appeals (HCAs Nos. 152 and 153 of 2009 and Suits Nos.1556 of 1997 and 1135 of 1998), one and the same decree was prepared, which was challenged through C.P. No.274-K of 2015. However in view of the dicta laid down by this Court in the case of Zahid Zaman Khan and others v. Khan Afsar and others (PLD 2016 Supreme Court 409), this Court vide order dated 11.7.2016 directed the petitioner to file/obtain separate decree in each of the appeals. Accordingly separate decree was obtained and separate C.P. No.80-K of 2016 was filed pursuant to order dated 11.7.2016 of this Court. Heard, in this view of the matter we do not wish to engage ourselves into this controversy which has since been set at rest, in the judgment noted above and it appears that it was a bona fide mistake on the part of the petitioner who has in fact challenged the very judgment and decree through common petition, which was later rectified as noted above, therefore, under the given facts and circumstances, the delay is condoned.
2. Civil Petitions Nos.274-K of 2015 and 680-K of 2016 Petitioner seeks leave to appeal against the impugned common judgment dated 27.2.2015 (since reported as Messrs National Transmission and Despatch Company Ltd. v. Pub Corporation through Sole Proprietor and 2 others) (since reported as PLD 2015 Sindh 397) passed by learned Division Bench in HCAs Nos.152 and 153 of 2009, whereby consolidated judgment dated 10.1.1998 passed by learned Judge in Chambers [reported as Messrs Pub Corporation v. Water and Power Development Authority (PLD 2009 Karachi 139)] in Suits Nos. 1156 of 1997 and 1135 of 1998, were maintained.
3. 2.Brief facts as may be necessary appears to be that M/s Pub Corporation, a proprietary concern of Ghulam Murtaza was awarded contracts by the Union Council Gadap, (UC Gadap) for the collection of Octroi Tax on goods brought within its territorial bounds, for two consecutive terms, one from 1st July, 1995 to 30th June, 1996 and another from 1st July, 1996 to 30th June, 1997.
4. 3.WAPDA, the predecessor of National Transmission and Despatch Company (NTDC), brought in various electrical equipments within the jurisdiction of the UC, Gadap. Since the amount of Octroi Tax was substantial, arrangement to issue (pre-payment) bills [per Rule 127, of Sindh Municipal Committee (Octroi) Rules 1964] (Rules 1964) was agreed. However, the petitioner despite demand had not paid the outstanding dues of Octroi Tax. Resultantly, respondent No.1 declined passing of the goods through the check post, which led the petitioner to seek in dugence of the Deputy Commissioner, Malir who intervened in the matter, petitioner gave undertaking to pay off outstanding Octroi dues in installment. Out of the total amount of Rs.1,07,22,579/- petitioner made part payment, leaving a sum of Rs.89,80,377/- outstanding. The respondent No.! on 8.11.1997 filed a Suit No.1556 of 1997, for the recovery of the unpaid Octroi Tax, together with claim of damages in the sum of Rs.1,019,623/- on account of devaluation of the currency. WAPDA on 20.61998, also filed a suit No. 1135 of 1998 for the recovery of the sum of Rs.72,36,934.61/- with 20% markup, which per pleadings was paid erroneously.
5. 4.Record shows that at the motion of the petitioner on 24.1.2006, learned Single Judge ordered that "suit No.1135 of 1998 is to be treated as leading matter. Evidence in one case is to be treated as in both cases". Record also shows that respondent No.1 did not press their claim for damages, for this reason, no evidence was required to prove quantum of damages on account of devaluation of currency as prayed.
6. 5.After hearing the parties, examining the record, learned Single Judge decreed the suit No.1556 of 1997 filed by the respondent in the sum of Rs.89,80,377/- being the total outstanding amount of Octroi Tax, with cost. At the same time dismissed the suit No.1135 of 1998 filed by the petitioner for the recovery of the amount of the Octroi Tax, which they claimed was paid erroneously. Petitioner unsuccessfully assailed the judgments and decrees in the suits before the learned Division Bench through HCAs Nos.152 and 153 of 2009 respectively. Learned Division Bench thoroughly examined the claim and dismissed the appeals through impugned consolidated judgment and decree with no order as to costs.
7. 6.Mr. Badar Alam, learned ASC appearing for the petitioner contended that the petitioner was executing the contract on behalf of the Federal Government, essentially to bring light/electricity for the public at large. Learned ASC urged for consideration; firstly that the petitioner is not liable to pay any Octroi in view of policy decision dated 11.04.1993 made at the Inter-Provincial Coordination Committee that required the "Provincial Government would exempt WAPDA from payment of property tax and Octroi on its equipment and materials. It was also decided that WAPDA would change electricity tariff on streetlight and drinking water scheme under its purview throughout country on domestic rates ". It was urged that pursuant to such policy decision, clause (d) was added to section 62(i) of the Sindh Local Government Ordinance, 1979 (the Act of 1979), which provisions inter alia; empowered the Government to exempt any person or property/goods from payment of Octroi duty, per learned ASC, such decision was endorsed by a learned Division Bench of the Sindh High Court in the judgment reported as WAPDA v. Government of Sindh and others (PLD 1998 Karachi 209), wherein it was held that WAPDA is not liable to pay any Octroi Tax, Secondly, that the electrical equipment used by the petitioner for the supply of the electricity does not fall within the purview of the Rule 2(m) read with Rule 35 of the Rules, 1964. It was therefore, urged that impugned judgment and decree passed by learned Judge in Chambers and so also in appeal are flawed both on fact and legal plain, thus liable to be set aside, suit filed by the petitioner is liable to be decreed and that filed by the respondent is liable to be dismissed.
8. 7.Mr. Abbas Ali, learned ASC appearing for the respondents opposed the petitions, objected to the very maintainability of the suit No.1135 of 1998 filed by the petitioner and so also instant petition on the ground inter alia that the suit No.1135 of 1998 filed by the petitioner was not maintainable on the ground that the respondent No.1 being Octroi Collector was collecting of Octroi on behalf of their principal namely UC Gadap. It was urged that in terms of Section 230 of the Contract Act, agent cannot be bound or held personally liable for the contract entered into by him on behalf of the principal namely UC Gadap and cases of the nature could only be filed against the disclosed principal and not against the agent. In support of his contention he has placed reliance on the case of Ghulam Mustafa v. Rashid Akbar Ansari and others (2009 MLD 1305).
9. 8.Without prejudice to the legal objections, on merits Mr. Abbas Ali, contended that the judgment relied upon by the learned counsel for the petitioner viz. WAPDA (Supra) is Per in curiam, to the very knowledge of the petitioner; it was urged that attention of the learned Division Bench was not drawn to the earlier judgment passed in the case of WAPDA titled as WAPDA through Shamsdin Shaikh v. Government of Sindh and others (C. P. No, D-660 of 1?86) wherein it was held that WAPDA is liable to pay the Octroi Tax. He further relies on the cases of Messrs Saif Nadeem Kawasaki Motors Limited v. The Government of N.W.F.P through Secretary, Local Government, Peshawar and another [(PLD 1992 Peshawar 166) (171)], Zila Council, Jhang, District Jhang through Administrator and others v. Messrs DAEWOO Corporation, Kot Rartjeet Sheikhupura through Director Contract and others (2001 SCMR 1012), Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Limited [(1993 SCMR 468) (480)] and Messrs Army Welfare Sugar Mills Ltd and others v. Federation of Pakistan and others (1992 SCMR 1652).
10. 9.Heard the learned counsel for the parties and perused the record. Mr. Abbas Ali learned ASC for the respondent No.1 has raised the objections as to maintainability of suit No.1135 of 1998 filed by the petitioner against the respondent No.1 least realizing that if at all such objection is sustained then the suit No.1156 of 1997 filed by the Respondent No.1 against the petitioner would also fall on the ground; as the agent cannot personally enforce nor is bound by the contract made on behalf of the principal.
11. 10.Therefore, before adverting to the merits of the case, examining objection as to maintainability of suit, is to appreciate the such contentions, scheme of the SLGO, 1979, the Sindh Municipal Committee Octroi Rules, 1964 (Octroi Rules, 1964) needs to be examined. Chapter IX, of the SLGO, 1979 deals with the levy, assessm ent, compounding, administration of all such taxes, rates, toll, fees and other charges in the prescribed manner as mentioned in the Schedule V of the SLGO, 1979 read with Octroi Rules 1964. Under section 60 SLGO, 1979 impost of the kind as authorized and leviable, the Metropolitan Corporation, District Municipal Corporation or the Council as the case may be is responsible to collect the same. Under section 45(4) read with section 64 of the SLGO, 1979 read with rule 225 of the Octroi Rules 1964 a Council through open auction and in the manner provided for in the Rules ibid; may contract or lease out the rights to collect taxes including Octroi on yearly basis.
11. Once collection of Octroi is contracted or leased out by the Municipal Corporation or Council as the case may be, all Octroi collecting post comes under the control of Octroi contractor/lessee, who exercise all powers of the Metropolitan, District Metropolitan Corporation or the Council as the case may be barring powers as detailed in such clause (i) of clause (d) of Rule 226; ibid. Under the SLGO, 1979 all amounts collected as Octroi charges belong to the Lessee/Contractor (see Sub Rule
(a) of Rule 226 ibid) and the Municipal Corporation and or the Council has neither any claim on such collection nor liable for any claim for refund to any person. It is the lessee who is liable to make refund of the amount of Octroi duty charged and recovered erroneously or on account of miscalculation, per Rule 219 read with sub-clause (iv) to clause (d) to Rule 226 ibid; thus it could be seen that elaborate statutory frame work regulating relationship between the Council and the Octroi collector/lessee; as discussed above, exist. It is the lessee/Octroi contractor who is personally responsible to recover the Octroi impost during the contract period from any person liable to pay the same and so also liable to refund the same if recovered erroneously in the manner provided for under the Octroi Rules 1964, therefore, the general principals of principal and agents contained under the Contract Act cannot be pressed into service in instant case as attempted by the learned ASC for the Respondent No.1 . Therefore, suit filed by the Petitioner against the Respondent No.1, the Octroi Contractor for the recovery of amount of Octroi impost claimed to have been paid erroneously was maintainable. It may be observed the question of maintainability of suit, in presence of alternate remedy to claim refund of the amount charged in excess [per rule 226 (d) (iv) read with rule 219 of Rules ibidd was not raised; is not being dilated upon. See also Rupali Polyester Ltd. v. Zila Council and others [2004 YLR 1676 (Lahore)].
12. 12.Now adverting to merits of the case; contention of the learned counsel for the petitioner that exemption from payment of Octroi impost was available to the WAPDA in view of the policy decision dated 11.4.1993 made by the Inter-Provincial Coordination Committee. It was urged that the decision will not override the law. In the alternative it was stated that no exemption pursuant to clause (d) to subsection (1) to section 62 of SLGO, 1979 was issued. It was further urged that the petitioner, never claimed any exemption from payment of Octroi at the Octroi post nor filed any declaration to such an effect no exemption was extended by the Government of Sindh under section 62(1)(d) of Sindh Government Ordinance, 1979. Therefore, policy decision if any is not binding on the respondents.
13. 13.We have heard the arguments and perused the record. Attending to the first argument of the learned ASC for the petitioner, such argument was thoroughly examined in the case of Water and Power Development Authority through General Manager and Project Director and another v.
14. Administrator, District Council Swabi and 5 others (2005 SCMR 487). This Court after examining Articles 165 and 165-A of the Constitution of Pakistan conclusively held that sub-Article (1) of Article 165 of the Constitution, 1973 relates to the property owned by the Federal Government, which could not be taxed by the Provincial Government. Secondly that a trade or business of any kind carried on by or on behalf of the Province beyond its territorial boundaries could be taxed under the Act of the Parliament or the Provincial Assembly. Thus the activity of subject matter of the present controversy is not covered by Article 165. Coming to Article 165-A it empowers the Parliament to make law for the levy and recovery of the tax on the income of a Corporation, Company or other body. From the language of Article 165-A of the Constitution of Pakistan it is manifest that such imposition could be inflicted by the Federation through a statute on the income and not otherwise.
15. In the said case,' it was also conclusively held that the WAPDA not being Federation, levy of tax in the capacity of the contractor cannot be exempted. In another case reported as Zila Council (Supra), it was held that Zila Council is competent to levy exporter/ goods exit tax.
14. Now attending to other objection of the learned counsel for the petitioner that a policy decision of the Inter-Provincial Coordination Committee meeting dated 11.4.1993 whereby it was unanimously decided that Provincial Government would exempt WAPDA from payment of Property Tax and Octroi Tax on its equipment and material. Contention is preposterous, learned counsel was not able to demonstrate or point out any constitutional and or statutory provisions that mandate or otherwise gives to the decision of the Inter-Provincial Coordination Committee any precedence over the statutory law, rules and or regulations framed there under. The decision of the Inter- Provincial Coordination Committee, if any, is merely recommendatory in nature, such decision would neither override nor make the statute law redundant.
16. 15.. Power to levy, increase, reduce, suspend, exempt or abolish the levy of any tax, rate, toll or fee or for that matter to exempt any person or class of person's or property/goods or class of property/goods squarely vest in the Provincial Government (see section 62 of the SLGO, 1979). The Union Council on the direction issued by the Provincial Government in terms of subsection (1) of section 62 ibid is obligated per subsection (2) thereof to, issue Notification to give effect to such directions of the Provincial Government. Learned ASC for the Petitioner failed to show that the any such direction either to exempt the petitioner or for that matter goods sought to be imported within the Octroi limits of the subject Union Council in terms of clause (d) to subsection (1) of section 62 of the SLGO, 1979 was ever issued. Any person, who seeks any exemption from payment of Octroi impost, is required to make such declaration in terms of Rule 35(b) of the Rules ibid at the time of bringing goods within the limits of the concerned Union Council. In case no exemption is claimed, then in terms of Rule 36 ibid statutory presumption is attracted that the goods or class of goods are intended for consumption, use or sale within the Octroi limits thus liable to Octroi impost. It is apparently; for this reasons petitioner never claimed any exemption from payment of such impost at the time of import through Octroi Post within the contemplation of rule 35(b) of the Octroi Rules, 1964. Learned counsel for the petitioner, was not able to establish on record that either the petitioner or the goods brought with the concerned municipal limits were exempted from payment of Octroi tax. It is well entrenched legal position in law that fiscal statutes are to be strictly construed imposition of any impost and or exemption from payment thereof, cannot be claimed on mere assumption and or supposition.
16. In this view of the matter, we do not see any factual or legal error in the judgments of the two Courts below. Accordingly, finding no merits leave is declined and both petitions are dismissed.