1. SAEEDUZZAMAN SIDDIQUI, J.--We heard the above-noted five petitions on 6-4-1989 and adjourned them for today as Mr. Abdul Hamid Khan, the learned counsel for the petitioners wanted to file an affidavit in Petition No.849/86 to clarify that petitioners are not carrying out any construction activity within the jurisdiction of Union Council Pipri (Dadu) and that the goods on which Octroi Tax is charged by Union Council Pipri only pass through the limits of that Union Council in transit for use at Jamshoro/Bholari. The learned counsel is however, absent today and no affidavit has been filed to the above effect. Mr. Rasool Bux Unnar, the learned counsel for respondent No.3 (Union Council Pipri) (Dadu) on the other hand has filed an affidavit and has categorically stated that octroi tax is demanded by the respondent No.3 from the petitioner only on those goods which are brought by them for use and consumption within the limits of Union Council.
2. Learned counsel further states that Union Council Pipri (Dadu) has neither charged, nor has any intention of charging octroi on the goods of petitioner which only pass through its limits in transit.
3. (1)That the goods and material imported by the petitioner within the local limits of abovementioned councils and corporation are used in the works which are public works and as such no octroi is payable thereon.
4. (ii)That Government .Of Sind vide Notification No.SO II-1(23)/79, dated 3-12-1980, issued in exercise of its power under Rule 137 of West Pakistan Municipal Committee Octroi Rules, 1964, has exempted all construction material meant for use in public works, from payment of Octroi tax and as such charging of octroi tax by the councils and corporation concerned on material imported by the petitioner for use and utilization- in connection with the construction of two Grid Stations at Jamshoro and Bholari is wholly without jurisdiction.
5. (iii)That the goods and material brought by the petitioner for use in the construction work at Grid Station being imported material from abroad is exempted from payment of octroi tax.
(iv) That Union Council Pipri (Dadu) and Hyderabad Municipal Corporation arc charging octroi on goods which pass in transit through their local limits.
6. (v)That the petitioner had entered into a contract with Union Committee Bholari in the year 1982 to pay Octroi tax at a particular rate and as such revision of the rate of such tax in 1985 by the said Union Council without notice to petitioner is without jurisdiction.
(vi) That the levy of octroi tax by the Union Council is contrary to law.
7. Before considering the above contentions of petitioner we may briefly state here, the facts alleged by the petitioner in the above petitions.
8. The petitioner is engaged presently in the construction of two new Grid Stations within the limits of Bholari and Jamshoro Union Councils. The petitioner claims that Union Councils Bholari and Jamshoro are illegally demanding octroi tax from the petitioner on the material which is imported by the petitioner within the limits of the Union Councils in connection with the above construction work. The petitioner similarly have their establishments and network within the limits of Union Council Pipri (Dadu) and Hyderabad Municipal Corporation for maintenance and supply of electric energy and in that connection they import goods and material and claim that no Octroi is payable thereon. It is accordingly contended by the learned counsel for the petitioner that the goods and material brought by it within the limits of above local councils and Hyderabad Municipal Corporation is not liable for payment of octroi tax as these goods and material are used in connection with works which are of the nature of public works. Learned counsel for the respondents on the other hand jointly contended that the octroi tax is demanded by the respective Union Councils and Corporation in respect of the material and goods brought within their respective jurisdiction for consumption by the petitioner in accordance with notification issued by them under section 60 of the Sind Local Government Ordinance, 1979. With regard to exemption from payment of Octroi duty and the notification issued by Government of Sind in this regard, the contention of the respondents jointly is that the notification did not apply to the petitioner. Regarding revision in the rate of octroi tax in 1985 the respondents jointly contended that such revision in octroi tax was done after following the procedure prescribed under the Act and rules in this regard. In addition to above the learned counsel for Union Council Bholari also raised a preliminary objection that petitioner has no locus standi to file the petition as they arc: not paying any octroi tax which is paid by the contractor cmpioved by the petitioner. After hearing the learned counsel for the petitioner we arc of the view that neither the preliminary objection nor these petitions have any merit. In support of preliminary objection, the learned counsel for Union Council Bholari relied on the agreement between the petitioner and their contractor which provides for payment of octroi tax by the contractor. On the basis of this stipulation in the agreement between petitioner and their contractor, the learned counsel contended that petitioner is not entitled to maintain the petition.
9. The contention of the learned counsel has no force. It is true that the agreement between petitioner and his contractor provide for payment of octroi tax by the contractor, but the learned counsel overlooked the fact that such payments are to be reimbursed by the petitioner. We are, therefore, of the view that the petitioner is entitled to maintain the petition. The first contention of the petitioner is that they are not liable for payment of octroi tax on the goods and material brought within the limits of Union Councils, Bholari, Jamshoro, Pipri and Hyderabad Corporation as it is meant for use in two new Grid Stations constructed by them which is a public work. Firstly, it is an admitted position in. The above cases that since 1982 the petitioner's contractor who are carrying on construction work of two Grid Stations situated within the limits of Bholari and Jamshoro Union Councils has been paying octroi tax on building material brought within the limits of those Union councils. This fact is admitted in the agreement executed between the petitioner and its contractor which is Filed alongwith the counter-affidavit of respondent No.4 in Petition No.660/86. It is also established from Annexure `D' to the above petition that the petitioner had entered into an agreement for payment of octroi charges on the articles imported for use in the construction of Grid Station within the limits of Union Council Bholari and this agreement was signed by the petitioner and Chairman of Union Council Bholari and also on behalf of Local Government Department, Kotri. With regard to objection regarding revision of octroi duty by the Union Councils in the year 1985, the learned counsel for the petitioner is unable to point out any irregularity. In fact there is no assertion by the petitioner in the, above petitions that the respondent Union Councils or Hyderabad Municipal Corporation had violated any of the provisions of S.L.G.O. Or rules framed in this behalf while revising the rate of octroi duty in 1985. On the contrary in the counter-affidavits filed on behalf of Union Councils it is specifically averred that revision in the rate of octroi duty was made after following the procedure prescribed by the Government in this behalf' and this fact has not been disputed by the petitioner. The learned counsel for the petitioner is unable to point out any provision m the Sind Local Government Ordinance, 1979 which exempted material meant for use in the, work of public nature from payment of octroi duty. The petitioner has, however, relied on the notification of the Provincial Government dated 3rd December, 1980, in the above petitions to claim exemption from payment of octroi duty on goods imported by it for use in connection with the construction of two Grid Stations which reads as follows:-- "GOVERNMENT OF SIND HOUSING TOWN PLANNING LOCAL GOVERNMENT Karachi, dated the 3rd December, 1980.
10. NOTIFICATION No. SO 11-1(23)/79 In exercise of the powers conferred by Rule 137 of the West Pakistan Municipal Committees, Octroi Rules, 1964 read with item 11 of Appendix `C' thereto the Government of Sind, are pleased to declare that the construction -material for "public works" shall stand exempted from payment of octroi tax subject to the production of a certificate by an officer of the Communication and Works Department, Government of Sind (not below the rank of Executive Engineer) to the effect that the material is meant for the public works.
11. M. SALMAN FAROOQUI SECRETARY TO GOVERNMENT OF SIND NO.S0.11-1(23)/79 Karachi, Dt. The 3rd Dec: 1980:'
12. This notification has been issued by the Provincial Government in exercise of its power under rule 137 of the West Pakistan Municipal Committee Rules, 1964. A reading of this notification will show that the construction material for the public work has been exempted from payment of octroi tax on the condition of production of a certificate by an officer of the Communication and Works Department, Government of Sind (not below the Tank of an officer of Executive Engineer) to :the effect that the material is meant for public work. Mr. Abdul Hamid Khan, learned counsel for the petitioner contended before us that the Executive Engineers employed by the petitioner are equal in rank with the Executive Engineer employed by the Communication and Works Department, Government of Sind and as such a certificate issued by-them certifying that the building material imported by the petitioner is meant for use in public work should be accepted as valid under the motification. We are unable to accept the contention of the learned counsel for the petitioner as under the notification relied by the petitioner to claim exemption from payment of octroi on goods imported by, them for use in the construction of Grid Station, the exemption is admissible only upon production of a certificate of an officer of Communication and Works Department of Government of Sind (not below the rank of an Executive Engineer) to the effect, that the material is meant for use in a public work. This notification does not admit of any such certificate by an employee of petitioner. It is, therefore, rightly contended by the learned counsel for the respondents that the building material imported by the petitioner for use in the two Grid Stations situated within the limits of Union Councils Bholari and Jamshoro is not entitled to exemption under the aforesaid notification. The next contention of the learned counsel for the petitioner is, that since the material used by the petitioner in construction work at Bholari and Jamshoro is imported 1 from abroad it is not subject to payment of any octroi. Learned counsel is unable to point out any provision either in the Sind Local Government Ordinance, 1979 or in any other law for the time being in force which allowed such exemption to the petition. The learned counsel for the petitioners also urged that the Union Councils are demanding recovery of octroi not only on the value of the material but also on the sales tax, surcharge, iqra surcharge etc. Paid by the petitioner on such material. This contention of the learned counsel for the petitioner is not supported either by the pleadings in the above petitions or by any document on record. Learned counsel for the respondents categorically stated that they are demanding octroi on the value of material as defined in Rule 2(s) of the Octroi Rules, 1964. We are- not inclined to go into this question any further as neither the petitioner has specifically pleaded it in the petitions nor there is material available before us to decide this point: The petitioners have objected to the recovery of octroi tax by the H.D.A. And Pipf Union Council
(Dada) on the goods which are bought within their local limit's on the ground that these goods only pass through the limits of the said council and Corporation in transit. There is nothing on the record before us to show that Union Council Pipri or Hyderabad, Municipal Corporation are charging Octroi tax on building material which passed though their respective limits in transit. On the contrary the pleading and record clearly show that octroi tax is charged by the Union Council Pipri and Hyderabad Municipal Corporation on goods and material which is brought in their respective limits by petitioner for consumption there. There is no merit in. The above petitions which are accordingly dismissed but in the circumstances of the case, we make no order as to costs.