1. The plaintiff has filed this suit for the reliefs of declaration, injunction and accounts. The case of the plaintiff is that they are statutory Corporation who have been importing goods within the territories of Karachi Airport fog the purpose of plaintiff's use and disposal within the said airport area and therefore, according to the plaintiffs these goods are not liable to octroi imposed by the defendants. It is further asserted that the defendants started realising octroi from the plaintiffs on the said goods from July, 1973 which was accordingly paid by the plaintiffs till June, 1976 whereafter the plaintiffs filet the present suit. The plaintiffs have based their suit on the grounds that the import of goods being by air within the local limits of the airport, which is at exempted area cannot be subjected to payment of octroi and secondly that the area of airport was included in the limits of the defendants only for the purpose of elections of the basic democracies or local councils.
2. The defendants contested the suit and filed their written statement wherein they have taken the plea that the area of the airport was initiall; included in the limits of Drigh-Malir Municipality, which was subsequent; included in Karachi Municipal Corporation. They have also taken the plea that the octroi is duly imposed under the Municipal Committees Octroi Rules 1964; and that the defendants were competent and authorised to impose such octroi. The other pleas with regard to non- maintainability of the suit have also been raised.
3. On these pleadings of the parties, the following issues were settled:
(1) Whether the suit for accounts is maintainable?
(2) Whether the suit is barred by sections 88 and 98 of the Sindh People Local Government Ordinance, 1972?
4. (3)Whether the goods carrying by air at the airport and being used within the airport area are liable for payment of octroi?
5. (4)Whether the notification Annexure C is competently issued. If sowhat is the effect?
(5) Relief The plaintiffs examined one Ghulam Haider as Exh. 5, who produced three notifications as Exhs.5/1 to 5/3 while the defendants examined their Deputy Director Octroi, Airport, namely, Mr. Syed Zafar Nizami as Exh.12, who produced notifications as Exhs.D-4/1 and map of Karachi as Exh.13/2 and a notification as Exh.13/3. The learned counsel thereafter submitted the note of arguments in writing.
6. I have perused the submissions of the learned counsel for the parties as made in their note of arguments in writing and also perused the evidence on the record. My findings are as under: Issues Nos. 3 and 4: 1 will take up these issues jointly. The case of the plaintiffs is that such goods imported by them are being consumed within the limits of the airport area; and that the airport area is exempted from being liable to any taxation specially octroi. A reference to the evidence of the plaintiffs' witness would show that he has not speed as to what goods are imported by the plaintiffs. The only reference made by him in his evidence is to the effect that the head office of the plaintiff is situated in the airport area and so are their flight kitchen and hotel. He has also stated that they supplied foods and drinks to the crew on duty as well as passengers: This is not in consonance with the case of the plaintiffs as made out in the plaint or submitted in their written arguments wherein it has been asserted that octroi has also been charged on spare parts. Be that as it may, the initial burden is on the plaintiffs to show that the airport area is exempted from imposition of octroi tax. They have not produced any document in support of their above plea nor their witness has even stated so in his evidence. In these circumstances the exemption claimed by the plaintiffs cannot be said to have been established in law.
7. As regards the imposition-6f octroi by the defendants through the notifications, it may be observed that the two notifications have been produced by the defendants which are dated 16-6-1973 and 7-11-1973 which mentioned that the octroi to be levied on the goods imported through sea and air shall be on the basis of the C.I.F. Value of the goods as determined by Customs Authority. Also notifications Exhs.5/1 and 5/2 show that the airport area was included in the limits of Drigh-Malir Municipality initially and subsequently on March 2, 1971, the same was included in Karachi Municipal Corporation. The contention of the plaintiff is that this inclusion of airport area was only for the purpose of elections of the basic democracies or local councils is not supported by any evidence nor these two notifications specified the same. As against this Rule 2, Clauses `M' and `N' defined octroi and octroi limits as under: "(m) "Octroi" means a tax on the import of goods for consumption, use, or sale within the octroi limits;
(n) "Octroi limits" means the limits prescribed for the purposes of octroi and includes the limits of an adjoining Cantonment or other local area where octroi is collected jointly."
8. It is clearly established that the airport area was included in the limits of the defendants and the defendants had the dominance over the area and said area would be subject to all laws and rules applied by the defendants. A reference may also be made to section 114(e) -of the Evidence Act as was applicable then and the present Article 129(e) of the Qanun-e-Shahadat, 1984 B whereby it is provided that all official acts are deemed to have been done regularly. There being nothing brought on record by the plaintiffs to the contrary, it cannot be held that these notifications were not issued competently. Accordingly, the two issues are answered in affirmative and it is held that the goods imported by the plaintiffs at the airport are liable to payment of octroi as the impugned notifications are competently issued.
9. Issue No. 2: The contention of the defendants is that section 98 of the Sindh Local Government Ordinance, 1972 provides a protection to the actions taken by the defendants; and that no suit could be filed. The provisions of section 98 above read as under: "98. Protection of action taken in good faith. -- No suit, prosecution or other legal proceedings shall lie against Government or any council or against any person authorised by either for anything done in good faith or intended to be done under this Ordinance or for any damage caused or likely to be caused by any such things."
10. It may be observed that the protection is provided only with regard to those acts which are done in good faith under the Ordinance and, therefore, any action outside the scope of provisions of the Ordinance would not be protected under the provision. Accordingly, it cannot be said that the said provision applies to every suit challenging the acts of the defendants. The action taken by the defendants if outside the scope of the authority under the Ordinance, can certainly be challenged in Civil Court and the Civil Court will be competent to adjudicate in the matter., The second plea taken by the learned counsel is that in the present Base an appeal would be competent under Rule 216 of the Municipal Committees Octroi Rules, 1964, the said Rule reads as under: "216. Notwithstanding anything to the contrary contained, in the West Pakistan Municipal Committees (Appeal) Rules, 1960, appeals against the assessments made and orders issued under these giles shall lie as specified in Appendix G." .
11. It may be observed that this rule provides for filing of appeal against an assessment order or orders issued under the rules. In the present case it is not the assessment of octroi which is challenged but it is imposition of the octroi and, therefore, provisions of this Rule would not be attracted to the present case. In light of above discussion, the issue is answered accordingly.
12. Issue No.1: One of the relief sought by the plaintiffs in the suit is for direction to be given to the defendants to render accounts of all amounts recovered and received by them. It is an admitted position in the present suit that the payments are one-sided made by the plaintiffs to the defendants towards the octroi. A suit for accounts is an equitable remedy which is available to the plaintiff only if he is entitled to accounts and has not been given accounts. From this it follows that such relief would not arise out of mere contractual relationship or because accounts may have. To be examined in the course of a suit but in order to bring a suit for accounts one has to see that there had been an open current and mutual account. One has to look at each particular case and see if it is really a case of debtor and creditor or only a case of mutual obligation which in the ordinary way results in enforceable liabilities on each side. In a case of account where one party never had any demand against the other cannot fall within this purview. For rendition of accounts there ought to be debit and credit on both sides.. In the present case admittedly it is only the plaintiffs who had been making payment of the amounts and could very well note or ascertain the total amounts paid by them for which they are seeking the recovery of. In such circumstances, the only cause of action which could have accrued to the plaintiffs could be for a suit for recovery of certain ascertained sum and not suit for: accounts. Accordingly, the issue is answered in negative and it is held that the suit for accounts is not maintainable.
13. Issue No. 5: In view of findings on issues Nos. 1, 3 and 4 the present suit is dismissed with costs.