1. NASIR A. ZAHID, J. This judgment will dispose of this Constitution petition and 129 other connected petitions details whereof are given in the last paragraph of this judgment. Common law points are involved in all these 130 petitions. What we propose to do is to give the facts of one of these petitions in some detail and then refer to the differences generally in facts in other petitions.
2. In Constitutional Petition No. D-1136 of 1979, the facts are that on 6-5-1979 the petitioners, Shershah Industries Limited, were granted an import licence by the Chief Controller, Imports and Exports, Government of Pakistan, for the import of an unserviceable ship for the purpose of scrapping. The petitioners entered into an agreement with the foreign seller for the purchase of the vessel known as "m. v. SPICA" and established a letter of credit. Through their bankers in favour of the foreign seller. It is alleged by the petitioners that the said vessel arrived and its delivery was taken by the petitioners at the Outer Anchorage, which location, according to the petitioners, is outside the Karachi Port. Thereafter, it is the case of the petitioners, the said ship was taken directly to Gadani Beach, in Lasbella District of the Province of Baluchistan, where it was beached. It is then averred that customs rummaging party boarded the vessel at Gadani and all the customs formalities including assessm ent of the duty payable on articles, examination of holds, stores and documents pertaining to the sale, purchase and transfer of the aforesaid vessel were completed at Gadani. Import duty and sales tax levied by the custom authorities was paid by the petitioners. At the time of the filing of the petition, the said ship was being dismantled and scrapped and the petitioners wanted to bring the ship scrap into Karachi by road but the Octroi Post of K. M. C.
2. Located at the R. C. D. Highway demanded the production of a copy of the bill of entry relating to the import of the ship together with the receipt showing that Octroi had been paid by the petitioners at the Octroi Seas Dues office of K. M. C. Located in Karachi, before the trucks loaded with ship scrap were permitted to enter the K. M. C. Limits. The petitioners thereupon approached the Superintendent Octroi of the K. M. C. Sea Dues Post who demanded that octroi be paid at the rate of 2 % ad valorem of the duty paid value of the vessel. The petitioners called upon the Superintendent Octroi to pass an order in writing which was done and a demand for Octroi at 2 ad valorem of the duty paid value of the vessel which came to Rs. 41,394 was made by order dated I1- 10-1979. The petitioner moved an application dated 14-10-1979 before the appellate authority, the Taxation Officer/ Director, Taxation, K. M. C. Stating the facts and informing that they were willing to pay octroi at Rs. 3'50 per ton on the scrap being brought by them into Karachi through trucks via R.
3. C. D. Highway, and asking the Taxation Officer to issue a direction to the Octroi Post on R. C. D.
4. Highway to allow the scrap to pass on payment of octroi at Rs. 3'50 per ton. They challenged the demand of octroi at 2 % ad valorem of the duty paid value of the vessel. Urgent orders were also solicited from the Taxation Officer. As no orders were passed, the petitioners filed the constitutional petition before this Court on 23-10-1979.
3. In each of the other constitutional petitions which also are being disposed of by this common judgment, a ship was imported for purposes of scrapping. In certain cases the facts are more or less identical to the facts in Constitutional Petition No. D-1736 of 1979 detailed in the previous paragraph. In some cases the ships had come with cargo which was discharged at the wharves of the Karachi Port and then the ships were taken to Gadani for scrapping. In a few cases it is alleged that the ships remained on the high seas and went straight to Gadani for scrapping. In all petitions the challenge is to the demand of octroi at 2 % ad valorem of the duty paid value of the vessels but petitioners in all cases are ready to pay duty at Rs. 3.50 per ton on the scrap of the vessels being brought by road from Baluchistan to Karachi. Vires of the relevant rules pursuant whereof the demand on ad valorem basis has been made have also been challenged. On facts it . Is the case of the petitioners that the ships in question did not enter the Octroi limits of K. M. C. It has been argued that the waters in the Karachi Port do not fall within the Octroi limits of K. M. C. And for this reference was made to the Notification dated 11-10-1960 of the Government of Pakistan. It was argued that in any case the outer-anchorage is outside the boundaries of Karachi Port and outside the Octroi limits of K. M. C.
4. On behalf of K. M. C. The assertion that the ships in question did not enter the Octroi limits of K. M.
5. C. Has been denied. It was contended that the Karachi Port with all its waters came within the Octroi limits of K. M. C. It is the case of K. M. C. That in all cases the ships came into the Octroi limits of K. M. C. Challenge to the vires of the relevant rules was also strongly resisted. Interpretation put by the petitioners on the Notifica--tion dated 11-10-1960 was also challenged.
5. We have heard the learned counsel who have appeared for the various parties in these petitions.
6. On behalf of the petitioners, the main arguments were addressed by Messrs Tariq Husain, Haider Mota and Khurshid Anwar Shaikh. Other counsel namely Messrs Abbas Ali, Mohsin Tayebally, Akram Zuberi, Mustafa Lakhani, Hassan Inamullah and Azhar Ali Siddiqui also appeared for petitioners in some cases. Main arguments on behalf of K. M. C. Were addressed by Mr. A. A. Fazeel, Mr. Syed Muslim Naqvi also appeared on behalf of K. M. C. And supplemented the arguments of Mr. Fazeel.
7. Mr. A. Sattar Shaikh, Additional Advocate-General, appeared on behalf of the Government of Sind, which was also impleaded as a respon--dent, and he adopted the argument of Mr. Fazeel.
6. Before we deal with the contentions raised before us, reference may a1 be made to two preliminary objections to the maintainability of these petitions raised by Mr. A. A. Fazeel, learned counsel who represented the K. M. C. It was first urged by Mr. Fazeel that in these petitions disputed questions of fact are involved inasmu ch as there is a serious dispute between the opposing parties whether the ships in question entered the K. M. C. Octroi limits before going to Gadani in Baluchistan Province for scrapping and that there was also a dispute as regards the exact extent of the Octroi limits of K. M. C. It was further contended that according to the Notification dated 11-10- 1960 the Port of Karachi is within the K. M. C. Octroi limits, but this was disputed by the petitioners. It was urged by Mr. Fazeel that for deciding all these disputed questions of fact evidence has to be recorded. In these circumstances, according to learned counsel, writ or constitutional petition was not the remedy and this Court should decline to entertain these petitions. In support of his contention that in cases where disputed questions of fact were involved, writ was not the appropriate remedy, learned counsel relied upon the following judgments :-
(a) Province of East Pakistan v. Kshiti Dhar Roy PLD 1964 SC 636.
(b) Mohomed Anwar v. Alah wasaya 1969 SCMR 178.
(c) Mehboob Alam v. Secretary Government of Pakistan 1969 SCMR 217.
(d) Nawaza v. Additional Settlement Commissioner 1970 SC 39.
(e) Nawazish Ali Shah v. Merajdin 1970 SCMR 196.
(f) Yasin Sakaffshah v. Government of Pakistan 1970 SCMR 494.
(g) Pakistan v. Province of Punjab PLD 1975 SC 37.
8. Learned counsel appearing for the various petitioners had, however, contended that there was no difficulty in reading and following the notification dated 1-I1-1960 ; that the ships in question never came within the Octroi limits of K. M. C. And that there were hardly and disputed questions of fact.
9. 1n addition, it was urged by Mr. Khurshid Anwar Shaikh that even otherwise, in appropriate cases, questions of fact could also be determined in writ proceedings. Learned counsel referred to Rahim Shah v. Chief Election Commissioner PLD 1973SC24,for the proposition that then High Court may even record evidence to determine the legality of the act done or proceedings undertaken.
10. Learned counsel also referred to the following passage Irshad Ahmed v. Settlement Authority Punjab 1981 SCMR 758 "There was no legal impediment in the way of the learned Judge in the High Court interfering with a finding of a fact recorded by the Deputy Settlement Commissioner which was clearly against the material on record. It is well established that ordinarily a finding of fact will not be interfered with by the High Court in the exercise of its writ jurisdiction, but if the finding is not based on any evidence whatsoever, or proceeds in disregard of material evidence, then it can be set aside."
11. In these petitions we do not propose to decide any question of fact on which there has been any dispute between the opposing parties, but are deciding these petitions, as would be observed later, on the basis of admitted facts. As our decision on these petitions does not involve any investigation into disputed facts, the contentions raised hereinabove by learned counsel on the question of maintainability of these constitutional petitions are rendered irrelevant.
7. Mr. A. A. Fazeel, learned counsel for K. M. C. Had also raised an objection challenging the very maintainability and competence of these constitu--tional objection petitions on the ground that remedy of appeal was available to the petitioners under the 1964 Octroi Rules. It was pointed out by learned counsel that in some cases the petitioners did not avail this statutory remedy, and in other cases appeals have in fact been filed by the petitioners before the Director, Octroi K. M. C. Under rules 48 and 216 which appeals are pending. Mr. Fazeel referred to several reported judgments of the superior Courts of Pakistan in aid of his plea in this behalf. In reply to this contention Messrs Haidermota and Khurshid Anwar Shaikh on behalf of the petitioners argued that the alternate remedy of appeal in the instant case was neither efficacious nor adequate and that even otherwise the present petitions are competent and not liable to be dismissed on this preliminary objection.
12. They also relied upon case law to support their plea. Mr. A. A. Fazeel, learned counsel for K. M. C.
13. Referred to the following judgments in support of the proposition that appeal under rules 48 and 216 of the 1964 Octroi Rules was an adequate and/or alternate remedy available to the petitioners and as the same had not been resorted to or exhausted by the petitioner, they could not seek the constitutional remedy under Article 199 of the 1973 Constitution or Article 9 of the Provisional Constitution Order, 1981 :-- "(i) Habib Ahmed v. Income-tax Officer 1972 SCMR 556.
(ii) Zuhair Siddiqi v. M. H. Sufi PLD 1964 Lab. 453.
(iii) Beco Industries v. K. M. C. PLD 1976 Kar. 1011. r
(iv) Mehboob Ali v. Mubina Khatoon PLD 1977 Kar. 568."
14. Mr. Haidermota, on the other hand relied upon the following judgments for the contention that in spite of the availabillty of the appeal, present constitu--tional petitions were competent :-
(v) Muhammad Amir Khan v. Controller of Estate Duty PLD 1961 SC 119.
(vi) Nagina Silk Mill v. Income-tax Officer PLD 1963 SC 322.
(vii) Usmania Glass Sheet Factory v. Sales-Tax Officer PLD 1971 SC 205.
(viii) Murree Brewery Co. Ltd. v. Pakistan PLD 1972 SC 279.
(ix) SITE Ltd. v. Central Board of Revenue PLD 1975 Kar. 123.
(x) Municipal Committee Multan v. Burmah-Shell PLD 1976 Lab. 726.
(xi) Begum.Vusrat Bhutto v. Income-tax Officer PLD 1980 Lab. 449.'
(xii) Syed Riaz Husain Zaldi v. Md. Iqbal PLD 1981 Lab. 215.
15. Mr. Khurshid Anwar Shaikh, learned counsel for the petitioners in some cases, relied upon the following three judgments for the plea advanced by Mr. Haidermota :-
(xiii) Premier Cloth Mills Ltd. v. Sales-tax Officer 1972 SCMR 257.
(xiv) Ali Mohomed v. Husainbux PLD 1976 SC 37.
(xv) Ghulam Ali v. Commissioner Lahore PLD 1981 Lab. 368.
16. In 1972 SCMR 556 a petition under Article 98 of the 1962 Constitution filed to challenge an assessm ent order of the Income-tax Officer was dismissed by the Peshawar High Court. The petitioner bad preferred an appeal against the assessment order also. Supreme Court of Pakistan refused to grant leave holding as follows;- "The petitioner should have been left to pursue his remedy by the appeal which he had already filed. He should not, therefore, have been allowed to simultaneously pursue an alternative remedy under Article 98 of the 1962 Constitution."
17. In PLD 1964 Lab. 453 a learned Single Judge of the Lahore High Court observed at page 457 as follows :- "As regards the order of the Deputy Settlement Commissioner, dated the 31st of December, 1962, no exception can be taken to the execise of jurisdiction by him. The petitioner himself had applied to- the Chief Settlement Commissioner for demarcation of the property. The Deputy Settlement Commissioner was performing the duty of doing so under the orders of the Chief Settlement Commissioner. All that he did was to demarcate the property. If the petitioner is in any way aggrieved by the actual demarcation and he has, in fact, a genuine cause to complain that any portion of his property has wrongly been demarcated on the side of the respondent No. 2, he can have his grievance remedied in appeal. Against this order the petitioner has preferred an appeal to the Additional Settlement Commissioner who, on an erroneous ground that the writ petition was pending in the High Court, refused to exercise the jurisdiction vested in him by law. The refusal is patently wrong. The matter is still pending before him, and the Additional Settlement Commissioner will have to decide it on merits. Since the petitioner has already resorted to an alternative remedy by way of appeal, the petition under Article 98 of the Constitution of the Republic of Pakistan against order of the Deputy Settlement Commissioner is not competent."
18. In PLD 1976 Kar. 1011, which was a case relating to Octroi, a Division Bench of this rt, Couin the circumstances of that case, held that the provisions of Article 199 of the 1973 Constitution could not be invoked firstly on the ground that adequate and alternate remedy by way of appeal under rule 64 of the 1964 Octroi Rules was available and it had not been pursued, and secondly the matter involved certain questions of fact which could properly be determined only by K. M. C. Authorities.
19. The Constitutional petition was dismissed.
20. PLD 1977 Kar. 558 is another Division Bench judgment of this Court. In that case the petitioner had, lost before the Family Court and against the order of the Family Court filed an appeal which was dismissed by an Additional District Judge. Then the petitioner came to the High Court by way of a petition under Article 199 of the 1973 Constitution. One of the defences taken by the other side was that the petitioner could not challenge the order by the appellate Court as be had himself invoked the jurisdiction of the appellate Court by filing the appeal. This contention was repelled by the High Court observing as follows :- "The contention is incorrect for 'an order which is without jurisdiction ordinarily has got to be challenged in appeal, if appeal is provided, as constitutional requirement before seeking remedy in constitutional jurisdiction. Therefore, if such an order is not set aside on appeal it I can still be challenged by way of a constitution petition."
21. In the well-known case reported in PLD 1961 SC 120, while dealing with the question of the alternate remedy, the Supreme Court, at pages 127-128 of the report observed as follows; "Before proceeding to discuss the points raised in the two appeals the first preliminary objection raised by the Attorney-General has to be disposed of. The objection is that before the "appellants could be entitled to invoke the writ jurisdiction of the High Court they ought to have exhausted the remedy by way of appeal against the order of the Controller to the Appellate Tribunal.
22. The rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion. As stated in Halsbury at page 107, 3rd Edn. Vol. 11 "The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective."
23. One of the well-recognized exceptions to this general rule is a case where an order is attacked o-- the ground that it was wholly without authority. This exception was referred to in the very case on which reliance is placed by the learned Attorney-General, I.e. Tariq Transport Co. v. Sargodha- Bhera Bus Service PLD 1968 SC 437, and also in the later case of this Court S. A. Haroon v. Collector of Customs PLD 1959 SC 177. In the last mentioned case an appeal against the order of Collector of Customs was actually pending when the writ petition was decided by the High Court, yet this Court refused to give effect to this preliminary objection on "the ground that the order of the Collector was attacked as in excess of authority and a question of interpreta--tion of law which was of general importance was involved. It may be pointed out here that in accordance with a passage in Halsbury (p. 130, 3rd Edn., Vol. 11), which is reproduced in S. A. Haroon v. Collector of Customs, the objection as to existence of the right of appeal which is available in a petition for mandamus is not available in a petition for certiorari at all. The passage runs;- "There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute."
24. This is not in accord with what is stated in Ferris on Extraordinary Legal Remedies, but it may be pointed out in support of the statement in Halsbury that if the existence of a right of appeal be an obstacle to petition for certiorari, then petitions for certiorari against the orders of the Custodian, the various Election Tribunals and Industrial Tribunals, will have as a general rule to be dismissed because an appeal by special leave does lie in all such cases to this Court and the grounds of such appeal are surely not narrower than the grounds for certiorari. The existence of the right of appeal to this Court has however never been -regarded as a bar to the entertainment of petitions for certiorari by the High Court. So far as proceedings in excess of jurisdiction are concerned it is accepted even in Ferris on Extraordinary Legal Remedies that certiorari will lie even though a right of appeal exists.
25. In the present case, the attack was on the very jurisdiction of the Controller to proceed with the assessm ent of estate duty on account of the section 74-A of the Estate Duty Act. An appeal had been filed during the pendency of the writ petition, but that could not stand in the way of the exercise of writ jurisdiction by the High Court. In fact, in cases where an order is challenged as wholly without jurisdiction a petition for a writ appears to be a more appropriate remedy".
26. In PLD 1963 SC 322, the Supreme Court, on this question observed (at pages 326-327) as follows:- "In the present two cases, writs of certiorari had been prayed for in the High Court for quashing the impugned orders which were alleged to suffer from lack of jurisdiction. The circumstances in which certiorari may issue to quash the orders of administrative Tribunals that are required to act judicially, fell for consideration in two recent cases decided by this Court and reported as S. A.Haroon v. Collector of Customs, Karachi PLD 1959 SC 17 7 and Pakistan v. Ziauddin PLD 1962 SC
440. In both cases certain orders passed by Customs authorities had been challenged by means of writ petitions in the High Court. It was laid down that the general rule undoubtedly is that it is wrong on principle to entertain petitions for writs except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal, fully competent to award the requisite relief. At the same time, it was held that in cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on face of the record, a certiorari may be granted even though the right of statutory appeal had not been availed of. A certain amount of flexibility is allowed by the law in the case of a prayer for a writ of certiorari as compared with a case for a mandamus. It was further observed that if the application for certiorari is made by a party aggrieved, then it ought to be granted ex debito justitiae and the High Court, has not the general discretion which it would have, when the application is made by a member of the public, who is no; personally concerned. This would specially be the case where the alternative remedy provided by the relevant statute is not as efficacious, speedy or convenient as the one available under the writ jurisdiction of the High Court. This principle would be found discussed in Ferris on Extraordinary Legal Remedies at pp. 185-187, 1926 Edn. That relief in these cases could not have been obtained as quickly or with as such facility and convenience under the Act which provides for a series of appeals, revision and reference to the High Court on law points, on condition that the tax assessed is first paid, as by recourse to the writ jurisdiction of the High Court, can hardly be contested."
27. Then in PLD 1971 SC 205, it is observed at pages 209-210 as follows :- "The objection of the respondent that the appellant had alternative remedies by Departmental means is also not of much substance. It has been held by this Court that in a case where the dispute arises between the parties in respect of a fiscal right based upon a statutory instrument the same can be easily determined in writ jurisdiction. In the case of Burma Oil Company (Pakistan Trading) v. The Trustees of the Port of Chittagong PLD 1962 SC 113, it was held as under :- "We consider that since the question which arose was one of fiscal right based upon a statutory instrument, it was easily and conveniently determined in a writ petition as by means of a suit. By the exempting notification, a duty was cast upon by the taxing authority viz. The Port Trustees to relieve the subject against certain imposition and thereby a corresponding right to such relief was created in favour of the subject. Mandamus is in every way an appropriate remedy for the assertion of such a right by enforcement of the corresponding duty."
28. To the same effect there is a decision of this Court in the case of Pakistan and another v. Qazi Ziauddin PLD 1962 SC 440. This point was also considered in the case of Abdul Ghani and another v. Government of Pakistan and others PLD 1968 SC 131. It was held in that case that "any thing done beyond or in excess of powers conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case, the High Court can examine if the Officer concerned has acted in accordance with the powers conferred upon him by the statute". I would, therefore, repel the preliminary objections raised on behalf of the respondent."
29. Affirming its view expressed in the aforementioned case of Muhammad Amir Khan v. Controller of Estate Duty PLD 1972 SC 279the Supreme Court observed as follows (on page 287) :-- "It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as `the . C. D. A.') to make the impugned acquisition under the Ordinance. If it bad succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col. Na1vabzada Muhammad Amir Khan v. Controller of Estate Duty and others PLD 1961 SC 119 that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well-recognised exceptions to the general rule is a case where, an order is attacked on the ground that it was wholly without authority.
30. In PLD 1975 Kar. 128, a Division Bench of this Court holding that the writ petition under Article 98 of the 1962 Constitution was competent observed that the act of the Income-tax Department being without 1 jurisdiction altogether, it was not incumbent upon the petitioners to avail themselves of the remedies provided to them under the Income-tax Act or even to wait for the adjudication of their appeals or reference.
31. In PLD 1976 Lah. 726 a learned Single Judge of the Lahore High Court repelling an argument that the petitioner should have filed a suit and the High Court should refrain from exercising its extraordinary jurisdiction under the Constitution, observed as follows (at page 728) :- "As regards the first objection, this Court has ample authority to exercise its extraordinary jurisdiction under Article 199 of the Constitution in an appropriate case even if civil Suit may be pending. Reference is made to Salahuddin etc. v. Frontier Sugar Mills and Distillery Ltd.
32. PLD1975SC226.
33. Normally a person should approach this Court after exhausting the alternative legal remedy provided by law, but if such remedies are inadequate and are not efficacious and the order complained of is passed without lawful authority then this Court can entertain a petition under Article 199 of the Constitution."
34. In PLD 1980 Lah. 449, on the question of adequate and efficacious remedy, a learned Single Judge of the Lahore High Court observed (at page 457) as under :- "I agree with the learned counsel for the respondent that where there is another adequate and efficacious remedy open to the petitioner, a petition under Article 199 of the Constitution of 1973 would be incompetent unless the legal remedies including remedies as provided in the Income-tax Act are exhausted. But one essential condition for applicability of this rule is that the alternative remedy should be adequate and efficacious. It appears clear from the authorities cited at the Bar that where the question of jurisdiction of the Authority passing the impugned order is raised, the remedy of appeal is not as adequate or efficacious as the writ jurisdiction of the High Court and consequently in such cases a petition under Article 199 would be competent."
35. In PLD 1981 Lah. 50 at page 57-58, a learned Single Judge of the Lahore High Court dealt with the question of alternate remedy in these words :- "It has been argued that since petitioner has adequate remedy in pursuing the matter before the Controller in compliance with the remand order and can prove his claim by referring to the relevant material available on record, therefore, be cannot invoke the extra--ordinary jurisdiction of this Court.
36. This contention has no force in the given circumstances, as held by a Full Bench of this Court in Mehboob Ali Malek v_ Province of west Pakistan and another PLD 1963 Lah. 575 and in Salahuddin and 2 others v. Frontier Sugar Mills Ltd. And others PLD 1975 SC 244 adequacy of alternative remedy is to be judged in relation to the requisite relief. If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief the alternative remedy is not "other adequate remedy". If the relief available through the alternative remedy in its nature and extent is what is necessary to give the requisite relief, the adequacy of the alternative remedy must further be judged with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy with the speed, expense or convenience of obtaining it through writ jurisdiction,"
37. Mr. Khurshid Anwar Shaikh had referred to the case reported in 1972 SCMR 257. In that case a contention was raised that in case of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, writ of certiorari could be issued. (Reliance had been placed on PLD 1963 SC 322 and PLD 1971 SC 205. In that case the High Court did not express any opinion on two contentions raised relating to the order of the Sales Tax Officer being void on account of limitation and on account of not granting an opportunity of hearing to the appellant, on the ground that the said contentions were the subject matter of an appeal filed by the appellant before the Income-tax Authority and that it would amount to usurpation of the jurisdiction of the Special Tribunal if the High Court were to adjudicate upon the subject matter of the appeal. The Supreme Court overruling the High Court on this point observed; "On the basis: of these decisions learned counsel contended that the High Court should have exercised jurisdiction in respect of the last mentioned two points raised in the present appeal. The contention of the learned counsel is not without force. The appellant's contention is that the assessm ent authority has no jurisdiction to assess the appellant owing to lapse of time. In this connection reference is made to section 28 of the Sales-tax Act, 1951. This goes to the very root of the jurisdiction of the assessm ent authority. We would, therefore, remand this case to the High Court for considering the question whether the Sales-tax Authority could assessee the appellant after a lapse of four years, two months and twenty-nine days, and also to consider the question whether they were justified in imposing a penalty upon the appellant without affording him any opportunity of hearing."
38. In PLD 1976 SC 37, Supreme Court had (at page 39) observed as follows :- "On the question of limitation, the learned Judges referred to a number of decisions of this Court and held that if an order is without jurisdiction and void, then it need not be formally set aside. In Yousuf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104 it was said by this Court, `Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non. Existent.' In Ch. Altaf Hussain and others v. The Chief Settlement Commissioner PLD 1967 SC 294, it was said that an order without jurisdiction is a nullity in law and it does not require to be set aside formally. Again in Syed Ali Abbas and others v. Vishan Singh and others PLD 1965 SC 68.
39. It was observed that where an authority bas passed an order in excess of jurisdiction, the petitioner cannot be refused relief and penalized for not throwing himself again by way of revision or review, on the mercy of authorities who were respon--sible for such excess. This being the rule firmly established, the dismissal of the writ petition by the learned Single Judge on the finding that the appeal before the Additional Settlement Commissioner was barred by time and in dismissing it he had acted with jurisdiction, was not warranted in law."
40. In PLD 1981 Lah. 368, a learned Single Judge of the Lahore High Court, while dealing with the contention that the petitioner---s appeal was pending decision, observed that mere pendency of the appeal in no way precludes, the exercise of the constitutional jurisdiction by the High Court in appropriate cases, where the alternative remedy is not deemed as efficacious.
8. A review of the case-law referred to hereinabove shows that I certain cases the superior Courts of our country did not allow the petitioners to invoke the writ jurisdiction on the ground of availability of an alternate remedy by way of appeal or otherwise, but on the other hand, in other cases, notwithstanding the pendency of an appeal or availability of an alternate remedy, the Courts did not hesitate to exercise such writ jurisdiction and in fact granted relief to the petitioners.
41. It may be expressed as a generally accepted principle, however, that just because an alternate remedy by way of appeal or otherwise is available to a petitioner the High Courts will invariably decline to exercise their extraordinary constitutional jurisdiction. The mere availability of an alternate remedy does not debar the High Courts from exercising such jurisdiction. But, as observed by Dorab Patel, J., in Hassan Ali v. Muhammad Ahsan Baloch 1980 CLC 412the question whether a writ should be entertained when an alternate remedy is available is always one within the discretion of the Court. In cases of total lack or absence of jurisdiction or authority, or apparent excess of jurisdiction, the Courts general would not hesitate much is entertaining a constitutional petition although an alternate remedy may well be available. In other cases, the Courts would generally direct the party to avail and exhaust the alternate remedies available first before entertaining the writ, if in the opinion of the Courts the alternate --remedy is an adequate remedy.
9. Whether the alternate remedy available to the applicant who is seeking the constitutional remedy, is adequate or not depends on the special or particular circumstances of the individual case, and it is precisely for this reason that in one case the High Court may not entertain the petition under its constitutional jurisdiction and in another case the same may be entertained. In taking a decision whether the alternate remedy in a given case is adequate or not to enable the High Court to take the further decision relating to entertaining the constitutional petition, the Court, in the background of the particular facts of the case before it, considers several factors. The question of speed and expense of the alternate remedy may be considered. Whether the alternate remedy is as effective or efficacious as the constitutional remedy is also a relevant factor. Whether, in the circumstances of the case, the alternate remedy or the writ would be the appropriate remedy can also be a pertinent consideration.
10. In the instant cases an alternate remedy by way of appeal under rules 48 and 216 of the 1964 Octroi Rules is available to the petitioners. In some cases, the petitioners have, in fact, filed appeals which are pending before the concerned Officer of K. M. C. In other cases appeals have not been filed and the petitioners have straightaway approached this court .Nevertheless we have decided to entertain these constitutional petitions and the following reasons have prompted us to take this decision :-.
(a) The vires of the relevant Octroi Rules have been challenged in these petitions and it could not be reasonably expected that an Officer of K. M. C. The designated appellate authority, would decide that the Rules were ultra vires.
(b) On merits the point involved in these petitions is the interpretation if the words "consumption, use or sale within the octroi limits" used in the 1964 Octroi Rules.
(c) Nearly two years have passed and not a single decision by the appellate authority has apparently been given. Huge amounts are involved and practically the entire ship breaking industry is affected. A speedy decision on the question involved was not only necessary but desirable to clarify the legal position.
(d) If the petitioners are now directed to go back and file appeal or pursue them, as the case may be, the final decision would be further delayed by some years. If K. M. C. Were very serious about their objection in this regard, the point about the maintainability should have been taken immediately the first petition was filed and the Court asked to decide the question.
(e) The point involved for decision in these petition is matter of general importance and is going to affect a very large number of citizens.
(f) The question being decided does not involve an inquiry into any disputed facts. In fact the decision being given is based on admitted facts only.
42. In the circumstances of the present cases and for the reasons recorded above, we are of the view that constitutional petition was the appropriate remedy in these cases and the appeal under rules 48 and 216 of the 1964` Octroi Rules is not an adequate and efficacious remedy.
11. We may now refer to the relevant legal provisions so as to appreciate the various contentions raised before us by the counsel appearing for the parties. Admittedly the relevant rules are the West Pakistan Municipal Committee Octroi Rules, 1964, as amended from time to time. Initially these 1964 Rules were made by the Governor of West Pakistan in exercise of the powers conferred by sections 35, 37, 38, 39, 41 and 121 of the Municipal Administration Ordinance, 1960. The Ordinance of 1960 was repealed by section 4 of the Sind People's Local Government Ordinance 11 of 1972.
43. Section 4(2) of 1972 Sind Ordinance inter alia saved the rules made arid taxes, rates, tolls accordingly remained in the field and did not die with the repeal of the 1960 Ordinance. The Sind 1972 Ordinance was itself repealed by section 120(1) of the Sind Local Government Ordinance XII of 1979. Saving provisions in the 1979 Ordinance are embodied in section 120(2) thereof.
44. Through two notifications of Government of Sind, both dated 15-6-1973, certain amendments were made in the 1964 Octroi Rules. By Notification No. MCI/6(4) Admn/70, in rule 2, after clause (r) the following new clause was added; "(r) `value' with relation to goods imported by sea means the price which shall include cost, insurance and freight determined by the Customs Authorities."
45. The notification also added the words "on goods other than those imported by sea" in rule 46 between the word `Octroi' and the word `shall'. Further the said notification added a fresh Chapter VIII-A titled "Assessm ent of Octroi on goods imported by Sea". The aforesaid notification dated 15- 6-1973 was issued by the Government of Sind pursuant to provisions of sections 79 and 80 of the 1972 Sind Ordinance.
46. The other Notification No. MC-1/6(4)/70 also dated 15-6-1973 was issued by the Government of Sind pursuant to the provisions of section 74 of the 1972 Sind Ordinance. This notification directed that with effect from 1-7-1975, octroi would be levied by K. M. C. And Landhi Korangi Municipal Committee on the goods in accordance with the rates specified in Schedules 'A' and 'B' to that notification. Schedule 'A' to the notification related to goods imported through sea and it provided for levy of octroi on ad valorem basis. Schedule 'B' to the notification relates to levy of octroi on import of goods through other than sea routes and the basis for levy of octroi is the weight of the item brought within the octroi limits.
47. By notification dated 7-11-1973, issued pursuant to sections 79 and 90 of the 1972 Sind Ordinance, Clause (s) of rule 2 was substituted by the following "(s) `value' means the price which shall include cost, insurance, freight, custom duty, sales-tax and any other levy determined by the Customs authorities.
48. " Though another notification dated 7-11-1973 issued pursuant to section 74 of . The 1972 Sind Ordinance the headings of aforesaid Schedules 'A' and 'B' were substituted. Heading of Schedule 'A' was changed to "Octroi on ad valorem basis for goods imported from abroad through sea or air route" and heading of Schedule `B' was changed to "Octroi for import through any route from up- country".
49. Then comes the notification dated 23-8-1976 of the Government of Sind issued pursuant to section 74 of the 1972 Sind Ordinance which introduced the metric system of weight by substituting a new Schedule `B' (which relates to oetroi for import through any route from upcountry and the basis is weight of the concerned imported goods). The rate of octroi leviable on scrap is Rs. 3'50 per ton (Item No. 1 (b) of Class VIII Metals).
12. Reference way also be made here to certain other legal provisions which were referred from time to time during the arguments :- Rule 2(i).-"Import" means import within the Octroi limits.
50. Rule 2(m).-"Octroi" means a tax on the import of goods for consump--tion, use or sale within the octroi limits.
51. Rule 3.-Unless otherwise prescribed, the limits for the purposes of the collection and administration of octroi shall be the limits of the municipality.
52. Rule 4.-A map of the municipality showing the octroi limits and the location of the Octroi posts shall be kept at the oetroi Office, and shall be available for public inspection during office hours.
53. Rule 33.-Every person importing goods liable to octroi shall present such goods at the octroi Post specified by the Municipal Committee for intercepting import traffic from the route by which such goods are imported.
13. There is also a notification dated 11-10-1960 of the Government of Pakistan No. S. R. O. 26(R) published in the Gazette of Pakistan issued in exercise of the powers conferred by section 7 of the Municipal Ordinance, 1960 describing in its Schedule the limits of the Karachi Municipality. In reply to a query from the Court, Mr. S. Muslim Naqvi, learned counsel for K. M. C. Informed that so far as the portion of the sea waters was concerned, this notification is the latest notification prescribing the K. M. C. Limits.
14. As observed earlier, K. M. C. Are demanding octroi at 2 % ad valorem of the duty paid value of the vessels under item 89 of Schedule A' of the Octroi Schedules. Vires of this Schedule has been called in question on behalf of the petitioners. In any event, according to the petitioners they are not liable to pay octroi under item 89 of Schedule `A` on the value of the ships, but are only liable to pay octroi at Rs. 3'50 per ton on the scrap of the ships which is physically brought by road from Lasbella, Baluchistan into Karachi and octroi at this rate is payable at the K. M. C. Octroi Post on R. C.
54. D. Highway, Karachi.
15. For the first time, through the aforementioned two notifications both dated 15-6-1973 of the Sind Government, Octroi was levied on goods entering the K. M. C. Octroi limits through sea from abroad. These notifications and the notification dated 7-11-1973 amending the 1964 Octroi Rules have been challenged as being ultra vires of the Interim Constitu--tion 1971 as well as the 1973 Constitution. On behalf of the. Petitioners this point was agitated by Mr. Haidermota and developed by Mr. Khursbid Anwar Shaikh during his arguments. It was contended by Mr. Khurshid Anwar Shaikh that octroi in question though described as Octroi was actually a customs or import duty which is a Federal subject under the two Constitutions and the Provincial Government by levying such octroi duty has transgressed the Federal field of legislation, Mr. Khurshid Anwar Shaikh referred to Article 138 and the following items of the Federal Legislative list contained in the Fourth Schedule to the 1972 Interim Constitution :- "Item. 19.-Import and export across customs frontiers as defined by the Federal Government, trade and commerce between the Provinces and foreign countries; standard of quality of goods to be exported out of Pakistan.
55. Item 26.-Carriage of passengers and goods by sea or by air.
56. Item 45.-Duties of customs, including export duties.
57. Item 61.-Terminal taxes on goods or passengers carried by railway, sea or air ; taxes on their fares and freights.
58. Item 65.-Matters incidental or ancillary to any matter enumerated in this (Federal) List."
59. Learned counsel also referred to Articles 70 and 142 of the 1973 Constitution and Items 24, 27, 43, 53 and 59 of Part I of the Federal Legislative .List in Fourth Schedule to that Constitution. Items 24, 27, 43, 53 and 59 of the Federal Legislative List of the 1973 Constitution are more or less identical to Items 26, 19, 45, 61 and 65 respectively of the Federal List of Interim Constitution 1972.
60. As observed earlier, "Octroi" has been defined in the 1964 octroi Rules as a .Tax on the "import" of goods for consumption. Use or sale within the Octroi limits, and "import" has been defined as import within the Octroi' limits, therefore, does not attract octroi but the import within the Octro' limits must also be coupled with the purpose of consumption, use or sale within the Octroi limits.
61. Unless Octroi is equated with customs duty, do not see how such tax falls within the items of Federal Legislative Lists of the two Constitutions of 1972 and 1973 pointed out by .The learned counsel. We say so as by Item No. 47 of the Provincial List of the Fourth Schedule to the Interim- Constitution, framers of that constitution specifically and with clarity included octroi within the Provincial Legislative field. Item 47 reads as follows;-- "Cesses on entry of goods into a local area for consumption, use or sale therein."
62. Now in the Interim-Constitution of 1972, apart from the Federal and Concurrent Lists, there was a separate Provincial Legislative List, whereas in the 1973 Constitution there are only two Legislative List namely the Federal Legislative List and the concurrent Legislative List. However, Article 142(c) If 1973 Constitution provides that "Provincial Assembly shall, and Parliament shall not, have power to make laws with respect to any matter not enumerated in either the Federal Legislative List or the concurrent Legisla--tive List. It may be mentioned here that Article 142 remains intact and has not been deleted by the Provincial Constitution Order; 1981. Subject contained in Item 47 of the Provincial Legislative List of the Interim-Constitu--tion, 1972 is neither mentioned nor covered by any item of the two Legislative Lists of the 1973 Constitution. The only logical conclusion is that by virtue of Article 142(c) of the 1973 Constitution, the Subject "Cesses on entry of goods into a -local area for consumption, use or sale therein falls squarely" within the Provincial Legislative field. Mr. Khurshid Anwar Shaikh had sought support from the following three reported decisions :-
(i) Pakistan Textile Mill Owners Association v. Administration of Karachi PLD1963SC137.
(ii) Pakistan Tobacco Ca. Ltd. v. K. M. C. (PLD 1967 SC 241).
(iii) Nawab Brothers v. Collector of Customs (PLD 1977 Kar. 94'1).
63. None of these three cases can come to the rescue of learned counsel. Firstly the two Supreme Court cases related to terminal tax and the Karachi case related to regulatory duty. Secondly the aforesaid three cases are clearly distinguishable from the instant cases and thirdly in the instant cases there is the specific item 47 of the Provincial Legislative List of the Interim-Constitu--tion, 1972, which was not. In issue in any of the aforesaid three judgments.
64. We may now examine the other limb of the argument of the learned counsel for the petitioners that octroi on goods imported by sea is in essence and reality a duty of customs but in the garb of Octroi. According to Mr. Khurshid Anwar Shaikh as octroi becomes leviable as soon as the goods are imported into Karachi from abroad, the notifications of 15-6-1973 are in effect imposing a duty of customs. Mr. A. A. Fazeel, learned counsel for K. M. C., referred us to a Division Bench judgment of this Court in the case of Universal Merchants v. Commissioner of Karachi 1980 CLC 704and urged that this point has been considered and decided in that judgment. In paragraph 4 of the said judgment it is observed as under; "Assuming however, for the sake of argument in favour of the, petitioners that the Municipality cannot, under the Ordinance, impose a tax in any field which belongs to the exclusive competence of the Central Legislature I still do not think that Octroi is such a tax as comes within the relevant item which I have quoted from the 1956 and the 1962 Constitutions. It is true of course that goods which enter the city of Karachi may be entering from a province other than the one in which Karachi is situate or even from outside the country altogether. The tax is nevertheless a tax upon the import of goods for consumption, use or sale in a Municipality. The purpose of the tax, therefore, is to levy a charge upon goods which are brought in, not only within the city but for consumption, use or sale within the city. If goods are landed from abroad but are not intended for such consumption, "sale or use but are intended to be so used, let us say, in Lahore, then octroi would not be leviable. The entire purpose of making the Central Legislature the authority who alone is competent to legislate upon inter-provincial trade and trade with foreign countries, is to allow it to have control over such trade. Octroi on the other hand is a charge upon import within a city. The fact that in a given case. The goods may happen to come. From another province or from outside the country is incidental and besides the point. Even so if they are not intended. For use in the city the tax would not be chargeable. The argument, therefore, I -think is wholly fallacious ; octroi is not a tax which is concerned with inter-provincial trade or trade .With foreign countries and is, therefore, within the competence of the Provincial Legislature and therefore of the Municipality."
65. We are in respectful agreement with the aforesaid observations. Octroi tax has been clearly distinguished from other taxes and the basic reason is that .It' is a tax "upon goods. Which are brought in not only within the city but ford consumption, use or sale within the city." In our view Octroi tax on good's coming from abroad and entering the municipal Octroi limits for the purpose) of consumption, use or sale within the Octroi limits cannot be equated with duties of customs.
66. Learned counsel had relied upon the following four cases :-
(a) Attorney-General v. McDonald Murphy Lumber Co. (AIR 1930 P C 173).
(b) A.
8. Alberta v. A. G. Canada (AIR 1943 P C 76).
(c) Lahore Municipality v. Daulat Ram (AIR 1942 P C 14).
(d) A. G. Canada v. A. G. Quebee (AIR 1947 P C 44).
67. These four judgments no doubt deal with the questions of competence of the provincial and central legislatures. However, none of them is specifically on the point in issue here. We have already observed that we agree with the Division Bench Judgment of-'this Court reported in 1980 CLC 704 and learned counsel was not able to pursuade us to take a different view on the basis of any of the aforesaid four judgments.
16. Another contention was raised by Mr. Haidermota for declaring the notification of 15-6-1973 ultra vires of the Sind Legal Government Ordinance, 1979. It was argued that section 120 (2) of the 1979 Ordinance which is the saving clause is subject to the proviso "if not inconsistent with the pro-- visions" of the 1979 Ordinance and section 60 of this Ordinance requires the taxes to be levied by the Municipal Corporation whereas the said notifica--tions were issued by the Government of Sind itself, In the circumstances it was contended that the notifications of 15-6-1973 were inconsistent with section 60 of the 1979 Ordinance and, therefore, ueltra vires of the Ordinance. We do not see any inconsistency. The notification were lawfully issued and in any case section 62 of the 1979 Ordinance depicts the powers of the Provincial Government. Section 62 reads as follows :- "62. (1) Government may direct any council-
(a) to levy any tax, rate, toll or fee which the council in competent to levy under this Ordinance ;
(b) to increase or reduce any rate, tax, toll or fee to such extent as maybe specified ;
(c) to suspend or abolish the levy of any tax, rate, toll or fee ;
(2) if a direction issued under subsection (1) is not complied with, within the specified time, if any, Government may make an order giving effect to the direction."
68. The contention that the notifications dated 15-6-1973 and 7-11-1973 are 104 ultra vires of the 1972 or 1973 Constitution or the 1979 Ordinance is notaccepted and we hold that the said notifications have been lawfully made and octroi can be levied by the Province on goods imported by sea or air-route from abroad which enter the municipal Octroi limits for the purpose of con--sumption, use or sale within these limits. The power to levy the Octroi tax is given by section 71 of the 1972 Ordinance read with item No. 1 of Part I of Schedule VII of the said Ordinance. Under the 1979 Ordinance the charging provision is section 60 read with item No. 3 of Part II of Schedule V thereof.
17. The first contention on merits raised by Messrs Tariq Hussain and Haidermota, which was adopted by other counsel for the petitioners, wasp that the vessels in question were never imported within the Octroi limits of K. M. C. As observed earlier, in some cases the petitioners have taken the factual stand that their vessels remained at the outer anchorage and in some cases ' that the vessels had come within the Karachi Port, whereas in some cases it was alleged that the vessels had gone directly to Gadani. It was contended that in none of the cases the vessel entered the K. M. C. Octroi limits. On behalf of the K. M. C. These factual assertions were denied. The K. M. C.
69. Has taken the position that the vessels in question had come within their Octroi limits and then they were taken to Gadani for scrapping. All the `'counsel appearing for the petitioners as well as the counsel for the K. M. C. Had relied upon the Notification dated 11-10-1960 of the Government of Pakistan regarding the extent of K. M. C, limits and man had also been produced in Court on behalf of the K. M. C. (not kept on the file) on which, according to the K. M. C., the limits of K. M. C. --were shown in accordance with the Notification dated 11-10-1960 as regards the areas covered by sea waters. In the face of the serious disputes on facts about the exact octroi limits of K. M. C. And whether the vessels had at all entered the K. M, C Octroi limits or not, and on account of hardly any evidence on record to be in a position to decide with certainly these two questions of fact, we do not consider. It appropriate in these .:;institutional petitions to decide these questions. In any case, without recording evidence, which may include expert evidence for reading and understanding the Notification dated 11-10-1960 about the K. M. C. Limits these questions cannot be decided. The proper forum before whom such evidence could be recorded is the appellate authority under rules 48 and 216 of the 1964 Octrci Rules.
18. The next contention on behalf of the petitioners was that for being liable to pay Octroi, there must be physical importation of the vessels within the Octroi limit and reference was made in this respect to rule 2 (1) of the 1964 Octroi Rules. Reliance was also placed on Pakistan Textile Mill Owners Association v. Administrator of Karachi and others PLD 1963 SC 137,for the proposition that no artificial meaning can be given to the word "import" and there should be an actual physical importation of the article in question within the Octroi limits. The contention is no doubt correct but this contention is connected with the contention of the learned counsel referred to in the previous paragraph and as we have decided not to take any decision on a disputed question of fact, this point has become irrelevant.
19. The next contention of Messrs Tariq Husain and Haidermota, which was also adopted by all the other counsel for the petitioners, was that octroi was liable to be charged on the type of goods which enter the Munici--pal limits, and, in the present case, the type of goods which were being imported by road via R. C. D. Highway, was iron scrap and, therefore, the K. M. C. Could only charge octroi at the rate of Rs. 3'50 per ton which was the prevalent rate according to the relevant Octroi Schedule. With this con--tention, the argument of Mr. Haidermota, who appeared for certain peti-- tioners, may also be referred. According to him, even if it was conceded that there was an import of the vessels initially within the K. M. C. Octroi limits, the import was not for "consumption, use or sale within the Octroi limits" of K. M. C., but the vessels were imported for scrapping and which scrapping wag done entirely in Gadani, District Lasbela, Baluchistan. Now, it is an admitted position that the dismantling and scrapping of ,all the- vessels in question was done or is being done at Gadani.
70. After scrapping the vessels, the scrap recovered from the vessels is loaded on trucks and is brought by road to Karachi from Gadani via R. C. D. Highway by the petitioners on trucks. When this is done, the trucks are intercepted by the Octroi Post of K. M. C. At R. C.. D. Highway. As observed earlier, we have decided neither to go into any disputed questions of fact nor decide such disputed questions in these constitutional petitions. However, it is an admitted position of all the parties that the vessels in question were imported for purposes of scrap--ping and that the process of their dismantling and scrapping had taken place at Gadani in Baluchistan. On the basis of this factual admitted position we propose to decide the contention relating to the interpretation of rule 2 (i) of the 1964 Octroi Rules.
20. It has been urged by the learned counsel appearing for the peti--tioners that the import of vessels in all these petitions was for purposes of scrapping and the dismantling and scrapping of the ships is also a `use' or consumption of the ships and, therefore, if at all there has been any "use" or "consumption" of the ships, it was in Lasbela District Baluchistan outside the K. M. C. Octtoi limits.
71. It was contended that after the vessels were scrapped, the scrap which was recovered could not possibly be treated as a "ship" or "vessel"; and if any scrap recovered from any of the said ships or vessels was being brought by road from Baluchistan to Karachi, it would be an import of the scrap and not the import of the vessels from which the scrap was recovered. On the other hand, Mr. A. A.
72. Fazeel, learned counsel for the K. M. C., contended .That the ultimate purpose of impor--ting the vessels was that the scrap of the vessels was to be consumed or used in Karachi and, therefore, when the vessels initially came to Karachi, the importers of these vessels become liable to Octroi although the vessels after entering into the K. M. C. Octroi limits were taken out of the Octroilimits to Gadani and were scrapped there. Mr. S. Muslim Naqvi, who had also appeared for the K. M. C., had urged that dismantling and scrapping of the vessels in Gadahi is to be considered as a part of the use of the said vessels in Karachi, and further that as soon as the vessels initially entered the K.
73. M. C. Octroi limits, a presumption arose that after these were dismantied at Gadani every part of the scrapped vessels would be sold or used or consumed within the octroi limits of K. M. C.
74. According to Mr. Naqvi, the importation of the ships initially within the Octroi limits ,of K. M.. C. Was for the purpose of use and/or presumption of the ships at Karachi.
75. As observed earlier, it is an admitted position that the ships in question have not been dismantled or scrapped within the octroi limits of K. M. C. But were dismantled and scrapped at Gadani in Lasbela District Baluchistan. It is also an admitted position that the ships were imported for purposes of scrapping. In our view, there is great force in the contention of the learned counsel for the petitioners that when the scrap was being imported from Baluchistan via R. C. D. Highway to Karachi, it was scrap which was being imported and not the ship. It cannot be said by any stretch of imagination that when the scrap of a ship is being imported, it could be treated as the import of the ship itself. Secondly, even if it is (assumed that the ships in question had entered the K. M. C, Octroi limits which is denied by the petitioners), at the time of the initial import of the ships within the Octroi limits of K. M. C., it could not be presumed that the ships had been imported for consumption, use or sale within the Octroi limits of K. M. C., as admittedly the ships were imported for scrapping and further admittedly the entire dismantling and scrapping was being done at Gadani. It, therefore, follows that the ,ships themselves were not imported for con--sumption, use or sale within the K. M. C. Octroi limits, and further after the ships had been scrapped or dismantled, they no longer remained ships and became scrap. If in these circumstances, the scrap recovered from the ships was brought within the Octroi limits of K. M. C. By roads, as observed earlier, it could .Not be said that the ships were being brought within the K. M. C. Octroi limits. By bringing the scrap of the ships within the Karachi , Octroi limits there was no "consumption, use or sale" of the ships within the Octroi limits of K. M. C. It may be added that if similar provision for levy of Octroi were to exist in Lasbela and the ships were first brought to Karachi and then dismantled and scrapped in Gadani it would not have been open to the importers to urge that no Octroi was payable to the local authority of Lasbela on the ground that only dismantling or scrapping was being done in Gadani, Lasbela, but the scrap recovered from the ships was being sold at Karachi. We are of the view that the ships were imported for scrapping and by dismantling and scrapping the ships, the same are consumed and no longer remain ships.
21. Mr. A. A. Fazeel, learned counsel for K. M. C., had relied upon two reported judgments of the Indian Supreme Court during his arguments. First is the case of Ram Krishna Ramnath v. Secretary, Municipal . Committee, Kamptee AIR 1950SC11In that case, the appellant, who was a manufacturer of bidis in Kamptee, had brought tobacco from outside to Kamptee to make bidis. As the tobacco was brought within the Municipal limits of Kamptee for use and Consumption therein, he wag asked to pay Octroi at the concerned Municipal outpost which was paid by him but he recorded his protest. He challenged the levy on the ground that excise duty was levied on tobacco by the Central Government and the levy of Octroi on tobacco in question was covered by excise duty and, therefore, it was illegal and not recoverable. Supreme Court of India held that there was a separate entry in the Provincial Legislative List which covered octroi duty levied by the concerned Municipalities Act and, therefore, the levy of Octroi was not ultra vires. It was observed in para. 9 of the judgment as follows :- "The case however is different where as in the-Constitution Act there are two complementary powers, each expressed in precise and definite terms. There can be no reason in such a case for giving a broader interpretation to one power rather than to the other ; and there is certainly no reason for extending the meaning of the expression "duties of excise" at the expense of the provincial power to levy taxes on the sale. Of goods."
76. This judgment of the Indian Supreme Court supports the view that we have taken in the instant cases that the levy of Octroi under a provincial ordinance by the Provincial Government in respect of goods entering the K. M. C., limits from sea is not ultra vires the Constitutions of 1972 and 1973.
77. The other judgment relied upon by Mr. Fazeel was Burmah-Shell Oil Storage and Distribution Co. Of India Ltd. v. Belgoum Borough Municipality AIR 1963 SC 906Reliance was placed on this judgment in support of the contention that in the instant cases Octroi was leviable on the ships in question on ad valorem basis at the rate prescribed against item No. 89 of Octroi Schedule 'A'. In the aforesaid case the appellant company dealt in petrol and other petroleum products which it manufactured in its refineries situated outside the Octroi limits of the respondent municipality. It brought these products inside the municipal limits of the respondent, either for use or consumption by itself or for sale generally to its dealers and licensees who in turn sold them to others. In the Bombay Municipality Boroughs Act of 1925 the word 'sale' had not been mentioned in relation to levy of Octroi but mentioned only "consump--tion and use". The word 'sale' was added later on by an amendment of 1954. Supreme Court of India, on the facts of that case, held that the appellant company was liable to pay Octroi tax on goods brought into local area (a) to be consumed by itself or sold by it to consumers direct and (b) for sale to dealers who in turn sold the. Goods to consumers within other Municipal area irrespective of whether such consumers brought them for use in the area or outside it. It was, however, held that the company was not liable to Octroi in respect of goods which it brought into the local area and which were re-exported. While discussing the meaning of `consumption' it was observed that this word in its primary sense means the act of consuming and in ordinary parlance means the use of an article in a way which destroys, wastes or uses up that article. In para. 22 of the Judgment it was observed as follows; "In our opinion, even without the word 'sale' ..In the Boroughs Act the position was the same provided the goods were sold in- the local area to a consumer who bought them for the purpose of use or consumption or even for. Re sale to others for the purpose of use or consumption by them in the case. It was only when the goods were re-exported out of the area that the tax could not legitimately be levied and in this case the municipality has agreed to refund the amount of tax op goods re-exported without being used or-consumed in the Municipal area. In this view of the matter it was not necessary for the Municipality to follow the procedure for imposing taxes when the section was amended. The tax still remained the same. Its nature, incidence or rates werenot altered."
78. In our view the above judgment of the Indian Supreme Court does not help the contention of learned counsel for K. M. C. As the facts and points involved are clearly distinguishable from the instant cases. Secondly the ships in the instant cases had been imported for scrapping. If they were all brought within the K. M. C. Octroi limits, they were taken out of the limit for scrapping in Baluchistan. By dismantling and scrapping the shiphad been "destroyed" or to use the relevant parlance "consumed". As observed earlier, on the scrap recovered from theseships, Octroi would be payable if the same was brought within the K. M. C. Octroi limits by road according to the rates prescribed in Schedule 'B' of the Octroi Schedule.
22. In these admitted circumstances, we hold that the petitioners are no liable to pay octroi at 2 % ad volorem of the duty paid value of the ships, question according to Schedule 'A' of the Octroi S9hedules and the demand of the K. M. C. Authorities for the same from the petitioners are declared to b without lawful authority and of no legal effect. The petitioners are, however, liable to pay Octroi on the scrap or any other part or article recovered from the scrapped ships and brought by road into the K. M. C. Octroi limits a the rates prescribed in Schedule 'B' of the Octroi Schedules and in the manner laid down in the 1964 Octroi Rules. These 130 petitions are allowed to this extent with no orders as to costs. This judgment disposes of the following 130 Constitutional petitions; S. No.No. Of petitionName of petitioners 1.1736/79Shershah Ind.Ltd.
79. 2,227/80Messrs Abbas Steel Ind.
80. 3.311/80Ditto.
81. 4.390/80Habib Maritime Ltd.
82. 5.671/80Messrs Jilani Corporation 6.613(80Messrs Baloch Associates 7.666/80Messrs Al-Noor Steel Ind.
83. 8.708/80Zulfiqar Metals Ltd.
84. 9.758/80Messrs Dada Steel Corporation 10.765/80Messrs Rahmatullah Ossain Ltd.
85. 11.812/80Haji Abdul Karim & Co.
86. 12.867/80Messrs Dada Steel Corporation 13.882/ 80Messrs Dada Steel Mills 14.939/80Messrs Pakistan Molasses Co.
87. 15.957/80Ahmad Ship Breakers Ltd: 16.1075/80"Al-Noor Enterprises 17.1121/80Messrs Kohinoor Traders.
88. 18,1188/80Adam Corporation Ltd.
89. 19,1242/80Yashma Ltd.
90. 20.1243/80Premier Ship Breaking Co.
91. 21.1256/80Dewan Sons 21.1322/80Messrs Adam Corporation Ltd.
92. 23.1362/80Messrs Rashid Ltd.
93. 24.1424/80Messrs Adlam Trading Co.' Ltd.
94. 25.1429/80Hyderi Steel Ind.
95. 26.1430/80Hyderi Trading Agency Ltd.
96. 27.1433/80Messrs Noori Trading Corp. Ltd.
97. 28.1452/80Dilawar and Sons 29.1474/80Diwan Sons 30.1494/80Al-Murtaza Metals Ltd.
98. 31.1495/80Wahid Abdul Sattar 32.1524/80Messrs Karim Ship Breaking Ltd.
99. 33.1527/80Messrs Paruma Ind.
100. 34.1548/80Bay Trading Corporation 35.1587/80Messrs Admiral Ltd.
101. 36.1586/80Habib Builders Ltd.
102. 37.1603/80Messrs Cotim Ltd.
103. 38.1627/80Messrs Ahmad Ship Breakers Ltd.
104. 39.1635/80Messrs M. R. & Co.
105. 40.1679/80Abdul Karim Sakarwala 41.1698/80M. F. C. Ship Breakers Ltd.
106. 42.1699/80Messrs Dada Steel Mills 43.1740/80Messrs Zulfiqar Metals Ltd.
107. 44.1741/80Messrs Al-Noor Steel Ind. Ltd.
108. 45.6/81Messrs Firdous Traders 46.12/81Cake & Oil Products Ltd.
109. 47.14/81Muslim Rolling Mills Ltd.
110. 48.22/81Messrs Golder Pickers & Leather Ind.
111. 49.29/81S. Z. Enterprise Ltd.
112. 50.35/81Messrs Indus Rice Mills Ltd.
113. 51.36/81Ghulam Ali Kassim Ali Co.
114. 52.46/81Messrs Ahmad Maritime Ltd.
115. 53.47/81Habib Maritime Ltd.
116. 54.48/81Tawwakal 55.50/81Rehmat Investment Co. Ltd.
117. 56.56/81Sea Interprises Ltd.
118. 57.57/81Messrs Haji Abdul Karim.
119. 58.66/81Gilani Timber Mart.
120. 59.73/81Indus Oil Expellers Ltd.
121. 60.74/81Muhammad Iqbal Goawala Co. Ltd.
122. 61.77/81Messrs Shershah Ind. Ltd.
123. 62.83/81Messrs Rehmatullah Hossain Ltd.
124. 63.88/81Messrs Pakistan Moolasses Ltd.
125. 64.103/81Messrs Deen Corporation 65.108/81A. Rehman & Co.
126. 66.109/81Asghar Ali & Co.
127. 67.121/81Messrs Jamal Enterprises 68.167181Al-Murtaza Metals Ltd.
128. 69.168/81Abbas Steel Ind. Ltd.
129. 70.169/81Lucky Traders 71.174/81Mushtaq Traders 72.190/81Messrs Abbas Steel Ind. Ltd.
130. 73.19''1/81Abbas Steel Ship Breaking Ind.
131. 74.194/81'Zulfiqar Metals Ltd.
132. 75.230/81Abbas Steel Ind. Ltd.
133. 76.231/81Abbas Steel Ind. Ltd.
134. 77.239/81Messrs Sayani Agencies 78.265/81Messrs Cotmin Ltd.
135. 79.266/81Messrs Sombals Shipping Agencies 80.299/81Messrs H. M. Ishaq Ltd.
136. 81.313/81Messrs Pak. Mehran Ltd.
137. 82.321/81Messrs Capricon Enterprise Ltd.
138. 83.325/81Messrs Inter Marine Ltd.
139. 84.329/81Messrs'Seigfried Becon 85.335/81Messrs Karim Ship Breaking Ind. Ltd.
140. 86.370/81Messrs Baloch Techno Consultants 87.377/81Commercial Centre of Pakistan 88.379/81Messes Dada Steel Mills 89.380/81Mohammad Ishaq & Co.
141. 90.389/81Dewan Sons 91.392/81Abbas Steel Industries Ltd.
142. 92.. 404/81Messrs Gujranwala Steel Ind.
143. 93.405/81Messrs Zarat Development Ltd.
144. 94.406/81Messrs Unitra Ltd.
145. 95.409/81Messrs Idris & Bros.
146. 96.419/81Habib Maritime Ltd.
147. 97.424/81Messrs M. R. & Co.
148. 98.425/81Hyderi Trading Agency.
149. 99.431/81Moslasses Trading & Export Ltd.
150. 100447/81Vaiversal Business Associates 101465/81Messrs Muhammadi Re-Rolling Mills, 102.441/81Goafman International 103.476/81Fairdeal Commercial Corporation 104.477/81Messrs Karim Ship Breaking Ind.
151. 105.526/81Muzzammilullah Khan 106.527/81Arshad Ali & Co.
152. 107.536/81Messrs Zulfiqar Metals Ltd.
153. 108.538/81Jamal Younus 109.539/81Continental Trading Corp. Ltd.
154. 110.542/81Kohinoor Trading Ltd.
155. 111.565/81Gulf Trading Agency 112.609/81Hyderi Trading Agency Ltd.
156. 113.610/81Abbas Steel Ind.
157. 114.643/81Messrs Rashid Ltd.
158. 115.654/81Messrs Olympia Trading Co, 116.665/81Mercantile Trading Co.
159. 117.671/81Golden Pickers & Leather Ind.
160. 118.674/81Messrs Gbanchi Re-Rolling Mills 119.680/81Dilawar & Sons 120.687/81Messrs Cotmin Ltd.
161. 121.689/81Messrs Paruma International 122.694/81Messrs Ahmed Ship Breakers 123.698!81Messrs M. R. & Co.
162. 124.701/81Messrs Shershah Industries 125.710/81Messrs Salahuddin Bros.
163. 126.711/81Geofman International 127.70/81Noor International 128.730/81Geofman International 129.815/81Messrs Steelmen Ltd.
164. 130.816/81Muhammad Jqba1 Goawala Co. Ltd.
165. In these petitions consent orders were passed on Stay applications whereby the Petitioners were allowed to bring the ship scrap to Karachi by road on payment to K M. C. Of a portion of the amount claimed by K. M: C: and on furnishing a bank guarantee for the balance amount to the satisfaction 61 the Nazir of this Court. Bank guarantees given in these petitions shall stand canceled and discharged on the expiry of 60 days of the date of this judgment, This time limit has been provided to enable the respondents in these petitions to approach the Supreme Court of Pakistan for obtaining a stay against this judgment.