1. ' The applicant in this case is running a petrol pump known as Shahbaz Petrol Pump in Ranipur Taluka Gambat, District Khairpur, since 1968 and has been willingly paying the octroi tax charged by the Municipality of Khairpur State. This tax was originally levied by an order of the council of Ministers of the erstwhile Khairpur State. It is an admitted position that this body enjoyed the legislative powers and as such this tax was properly levied. After the State became a part of the Province of West Pakistan this tax continued to be realized under orders of the Commissioner, Khairpur Division and was paid by the applicant. There is no denial that there was no break in its levy or payment of this tax continuously. Sometimes in 1971 it occurred to the applicant that the recovery of this tax was not justified and some notices were exchanged between the applicant and the Government. Ultimately on the 2nd of January, 1973 a suit being Suit No, 2/1973 seeking a declaratory relief and injunction was filed by the applicant against the Province of Sind, Administrator, Town Committee and Contractor Octroi, Tax Town Committee, Ranipur, Taluka Gambat. The relief prayed for in the suit is as follows :- "That it be declared that imposition and recovery of octroi tax in the area of town Committee, Ranipur from the plaintiff on petroleum, high speed diesel, mobile oil and other such petroleum products is void, illegal, ultra vires and without jurisdiction as shown in above-mentioned paras."
2. ' The main grievance for which this relief was sought was stated in the plaint in the following words :- "That attempts are being made by the Administrator, Town Committee Ranipur and the Contractor of the said town committee to realize octroi tax from the plaintiff on petroleum, high speed diesel oil and other products connected with the subject of mineral oil, natural and liquid in spite of the fact that the plaintiff is challenging the imposition and collection of such octroi tax on the petroleum, high speed diesel oil etc. On the ground that the petroleum, high speed diesel oil, mobile oil and other such products belong to the category of the subject of mineral oil, natural gas, liquids and substances declared by Federal law to be dangerously inflammable and that this being subject included in the Federal list in the Constitutions over which only the Central Government has right to make law and impose Octroi or any other tax and that to this day the Central Government has not imposed octroi tax and, therefore, the defendant No, 1 is not competent to make law or impose and recover octroi tax muchless any other tax on petroleum high speed diesel and other such products and, therefore, such imposition and recovery of Octroi tax on petroleum high speed diesel oil, mobil oil and other such products by the Town Committee Ranipur, Taluka Gambat is void, ultra vires, illegal and without jurisdiction."
3. ' The suit was contested by the defendant No, 2 and it was urged in paras. 4 and 8 of the written statement that the tax is being recovered with full legal authority. Para. 8 may be reproduced below "That the contends of para. 8 are not admitted. The schedule of this Town Committee has been enforced since 1959 i,e, much earlier to the Constitution of 1962, and therefore the demand and the recovery is quite legal and valid."
4. ' On these pleadings three issues were framed but the controversy turned on the Issue No, 1 which was to the following effect :- "Whether the imposition and recovery of octroi tax in the area of. Town Committee, Ranipur from the plaintiff on the petroleum high speed diesel mobile and other such petroleum products is void, illegal, ultra vices and without jurisdiction ?"
5. ' The learned Senior Civil Judge, Gambat by his judgment, dated 30th of May, 1982 decided the issue against the plaintiff holding that the levy and recovery of the tax was justified and with full legal sanction and the learned Court dismissed the suit. Against the decree the applicant filed an appeal being Appeal No, 3/82 which has also been dismissed by the learned First Additional District Judge, Khairpur by his order, dated 12th of November, 1983. This revision is filed against this judgment.
6. ' A bare reading of the grounds of revision would indicate that there is serious misconception in the mind of the applicant about the octroi tax when he co-relates this tax with the power of the Central Government and refers to the Schedule to the different Constitutions of Pakistan little realizing that in its very nature the octroi tax is a Municipal tax to be recovered on the sale of a particular commodity within the Municipal A area. It is to be distinguished from such tax as import duty or other taxes imposed on its import, processing or handling by the Central Government. This position has been very thoroughly examined and this point has been adjudicated in the case of Universal Merchants v. The Commissioner of Karachi (1). In this very exhaustive judgment the late Chief Justice Tufail Ali A. Rehman has distinguished the levy of this tax with other taxes. The following discussion in the judgment may be quoted :- "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 important 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 country and is, therefore, within the competence of the Provincial Legislature and, therefore, of the Municipality."
7. Mr. Mangi learned counsel for the applicant faced with this situation has dropped all his objections which were raised in the plaint regarding the legal competence of the Municipality for levying and recovering that tax and on which adverse concurrent findings have been recorded against him by the two judgments below. I would, therefore, not elaborate the discussion on these points. The concurrent findings on Issue No, 1 would, therefore, remain' undisturbed.
8. The learned counsel now has turned back to the procedural aspect on the matter and has advanced his arguments on the question that all the formalities relating to the levy of new tax by the Municipality have not C been complied with. I am afraid it is too late in the day now to switch over to a totally new subject. The procedure laid down in these rules,
(1) 1980 CLC 704 which Mr. Mangi complains has not been followed, is an elaborate procedure and no material has been placed before me in support of the contention that the rules, the violation of which he is now complaining, were not followed at the relevant time. It may be mentioned that the rules have been undergoing change from time to time since 1968 when the applicant started paying tax unto 1973 when he filed the suit. This is purely a question of fact whether the notification of the Commissioner, Khairpur Division, dated 16th May, 1959 and subsequent notifications were issued after compliance of the rules in force at that time. Mr. Mangi has not been able to produce the relevant rules prevailing at that time and there is no material before me to hold that these rules were. Not complied with. Mr. Mangi has relied on the current rules but the learned counsel overlooks the fact the cause of action formulated in the. Plaint pertains to 1972 and it is not clear what were the exact position of rules ate that time. No material has been placed before me to show that these rules were not complied with. Moreover, the two judgments against which the revision has been filed do not proceed on the premises now sought to be raised by the learned counsel. May be that such a plea was raised in the plaint but neither it is reflected in the issues nor indeed it seems to have been urged at the time of hearing in Courts. On the other hand there are findings; to the effect that the applicant never challenged before filing the suit the authority or competence of the respondents muchless violation of any rules. He has been paying willingly the tax since 1968 without any objection. Mr. Jafferi learned counsel for the respondent No, 2 has relied on Sind Councils (Validation of Tax) Ordinance. 1982 and has contended that assuming for the sake of arguments that some rule was not followed, the recovery would be immune from any attack by force of this Ordinance, section 2(a) of this Ordinance runs as under :-- "(2) Validation of certain recoveries.-Notwithstanding anything contained in the Sind Local Government Ordinance, 1979, the Sind Council (Imposition of Taxes) Rules, 1979 or any judgment, or decree of any Court -
(a) Any tax, rate, toll or fees levied, charged collected or realized by a council on or after 3rd June, 1980 shall be deemed to have been validly levied, charged or collected or realized, as the case may be."
9. There seems to be force in the contention of Mr. Jafferi. Not on the objection raised is belated but the Ordinance saves the recovery from E any irregularity that might have occurred. In this view of the matter this revision is to be dismissed but in the circumstances of the case the parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.