' MUHAMMAD MUNIR KHAN, J.---This appeal by leave is directed against the judgment of the High Court of Sindh dated 26-9-1992 whereby a learned Division Bench accepted the Constitution petition filed by M/s. Baluchistan Industrial Gases (Pvt.) Limited (respondent No,1), against Karachi Metropolitan Corporation (appellant) and the Government of Sindh (respondent No,2), directing the appellant to give effect to the decision dated 22-2-1987 of the Chairman., Local Councils Appellate Tribunal (hereinafter referred to as the Tribunal).
2. The facts of the case briefly stated are that respondent No,1 deals with Oxygen Gas. It manufactures, distributes and sells the gas. Its registered office is at Karachi and factory at Hub, District Labella in Baluchistan. It imported cylinders of various sizes and weight from Japan and octopi on them was paid at that time. It fills gas into cylinders and sells the gas filled in these cylinders .To various customers in Baluchistan and Sindh/Karachi. When the gas in the cylinders is consumed by the customers, they return the cylinders to respondent No,1 and the gas is again filled in the cylinders and supplied to the customers. Till 1-7-1986, the appellant was charging octopi on the net weight of the gas but from 2-7-1986 it commenced charging on the gross-weight of the cylinders. On this, respondent No,1 made representation to the Director Outro, Karachi stating therein that the cylinders were returned to it after the gas contained therein was spent, and after refilling, the cylinders were sent back to the same customers, therefore, the cylinders were not liable to octopi and only the net weight of the gas contained therein was subject to octroi. The representation was rejected on 2-10-1986. Respondent No,1 filed an appeal before the Mayor, Karachi Metropolitan Corporation praying that octopi should be assessed and collected on the gas only which was dismissed on 15-11-1986. Respondent No,1 then filed an appeal against the order of the Mayor, before the Controlling .Authority i,e,, the Secretary, Government of Sindh, Karachi. On 28- 12-1986, respondent No,1 filed another appeal against the order dated 15-11-1986 of the Mayor, K.M.C., under Rule 4(1) of the Sindh Local Councils (Appeal) Rules, 1982 before the Tribunal. Along with the appeal, an application for condemnation of delay was also filed. The learned Tribunal not only condoned the delay but also accepted the appeal vide judgment dated 22-2-1987. The learned Chairman/Judge of the Tribunal held as under:--- "Octroi is payable on the net weight of gas and not on the gross weight of cylinders."
' He directed the appellant to charge octroi only on the net weight of the gas and not on the gross weight of the cylinders. As a consequential relief he directed the appellant to refund to respondent No,1 the excess amount recovered from it since 2-7-1986. The appellant was further directed to submit a schedule of such payment to the Mayor and after verifying the same he had to refund the excess within thirty days of the submission of the schedule. It was also directed that if the payment was not made as stipulated, then, respondent No,1 shall be entitled to recover compound interest at the rate of 15% per annum from the date of the order up to the date of payment. It may be significantly noted that the appellant who was a party before the learned Tribunal neither obeyed/implemented the order of the Tribunal nor challenged the same before higher forum or in the High Court through Constitution petition.
3. After eight months, respondent No,1 filed a Constitution petition in the High Court of Sindh, Karachi against the appellant and respondent No,2 seeking the implementation of the order dated 22-7-1987 passed by the Tribunal. The Constitution petition was heard by the learned Division Bench of the High Court on 24-9-1992. The appellant and respondent No,2 were represented by Mr. Abdul Ghafur Mangi, the learned Additional Advocate-General, Sindh, who did not oppose the petition and was of the view that the decision of the Tribunal ought to be given effect to by the appellant unless it (the appellant) approaches the High Court under Article 199 of the Constitution and impugns such decision.
4. The High Court vide order dated 26-9-1992 accepted the Constitution petition and directed the appellant to give effect to the decision dated 22-2-1987 of the Tribunal within thirty days. It may be noted that till today the appellant has not filed any Constitution petition against the order dated 22-2-1987 of the Tribunal in the High Court.
5. Feeling aggrieved by the order dated 26-9-1992 of the High Court, the appellant filed a petition for leave to appeal in this Court. Leave to appeal was granted on 16-3-1993 to consider whether or not the order dated 15-11-1986 of the Mayor could be challenged before the Tribunal and whether or not the law laid down in the cases reported as Cantonment Executive Officer and another v.
Brushing (Pakistan) Ltd. And others (1986 SCMR 1308) and Municipal Corporation, Faisalabad v. Atta Muhammad and others (1990 SCMR 84) was followed. Before us, the learned counsel for the appellant (Mr. Abrar Hasan, Advocate), raised the following points:--
(i) The High Court has allowed the Constitution petition without examining and determining the jurisdiction of the Tribunal and the legality of the order passed by it;
(ii) The Tribunal had no jurisdiction to hear the appeal against the order passed by the Mayor, Karachi Metropolitan. Corporation and as such the judgment delivered by it was a nullity in law and void;
(iii) The respondent No,1 had suppressed the factum of having filed appeal against the order of the Mayor, before the Secretary, Government of Sindh, Karachi;
(iv) The findings of the learned Tribunal are contrary to the ratio in cases reported as Cantonment Executive Officer and another v. Burshane (Pakistan) Ltd. And others (1986 SCMR 1308), Municipal Corporation, Faisalabad v. Atta Muhammad and others (1990 SCMR 84), Burshane (Pakistan)
Limited v. Cantonment Executive Officer, Cantonment Board of Korangi Greek, Karachi and 3 others (PLD 1983 Karachi 517), Messrs Khayal Muhammad & Sons v. Ghairman, Municipal Committee, Jhelum and 3 others (PLD 1985 Lahore 545) and Mukhtar Ahmed Sheikh v. Government of Sindh and 2 others (PLD 1991 Karachi 372); and
(v) The concessional statement made by the Additional Advocate-General before the High Court being admission on a point of law is not binding on the appellant.
' Contrarily, the learned counsel for the respondent No,1 (Syed Amjad Hussain, Advocate) has supported the impugned judgment.
6. We do not feel persuaded to agree with the learned counsel for the appellant. This appeal arises from the judgment of the High Court passed in a Constitution petition whereby only direction of the implementation of order dated 22-2-1987 of the Tribunal, was given. At the time of hearing of the Constitution petition before the High Court, the appellant and the Government of Sindh (respondent No,2) both were represented by a responsible Law Officer i,e,, Additional Advocfe- General. Points Nos.(i) to (v) taken before us were not raised before the High Court at the time of hearing of the Constitution petition. The order of the High Court impugned before us, is almost a consent order. There is no allegation of fraud.Or collusion against the learned Additional Advocate- General. The competency and maintainability of the appeal against the order of the Mayor, before the Tribunal, was questioned before the Tribunal itself and it gave definite finding that it had exclusive jurisdiction in the Matter. This finding of the Tribunal was not challenged by the learned Additional Advocate-General at the time of hearing of the petition, nor order of the Tribunal was ever challenged by the appellant or respondent No,2 through Constitution petition in the High Court and as such it had attained finality. No attempt was made by the appellant to get the decision of the Tribunal rectified from a competent forum. The case-law relied on by the learned counsel for the appellant was not cited before the High Court at the time of hearing of the Constitution petition.
The learned Additional Advocate-General had rather frankly conceded that the decision of the Tribunal had to be given effect to by .The appellant unless it (the appellant) approaches the High Court under Article 199 of the Constitution and impugns such decision. Neither the appellant nor respondent No,2 have approached the High Court so far. This appeal is liable to be dismissed on this score alone.
' Even otherwise the plain reading of rule 4(1)(a) of the Sindh Local Councils (Appeal) Rules, 1982 will show that the appeal against the order of the Mayor did lie before the Tribunal. The Tribunal has discussed the point raised by the learned counsel for the appellant at No,(iii) and has ignored the same for valid reasons given in paragraph 5 of its order.
7. The appeal is dismissed with no order as to costs.
' FAZAL KARIM, J.---With great respect, I am of the opinion that the High Court was not right in directing the Karachi Metropolitan Corporation, appellant herein, to give effect to the decision of the Appellate Tribunal Local Councils Sindh (the Tribunal) dated 22-7-1987 without determining the question whether the decision of the Tribunal was or was not in accordance with law.
2. The facts have been fully stated in the judgment proposed to be delivered by my learned brother Muhammad Munir Khan, J. And need not be repeated. The principal question requiring determination by the Tribunal was whether the gas cylinders had been 'used' within the meaning of rule 2(m) of the octopi Rules, 1964. The answer to that question turned on the important facts that the cylinders contained oxygen gas, and that the gas could not be retained without the cylinders.
In other words, the cylinders were used for the purpose of retaining the gas. The crucial question, therefore, was whether this 'use' did or did not bring the cylinders within the mischief of the octopi Rules.
3. The Tribunal held, without deciding that question as a matter of law, that "Outro is payable on the net weight of gas and not on the gross weight of cylinders" and directed the appellant to refund to the respondent the excess amount recovered from them since 2-7-1986. One of the grounds which weighed with the Tribunal in so holding was that by means of Notification No,50(VI) 13-57/86, dated 6th November, 1986" only the contents of gas cylinders shall be liable to payment of Octroi" and that the Government of Sindh had exempted "empty gas cylinders from the levy of octopi". The effect of this notification, so held the tribunal, was that (1) empty gas cylinders were exempted from Octroi and (2) when cylinders filled with gas are imported within K.M.C. Limits, octopi is payable on the weight of the gas only and not on the-gross weight of the cylinders. As regards this ground, the appellant's case is that this Court had, in C.A. No,39-K of 1984 decided on 8-11-1989 which was followed by the High Court of Sindh in a reported case, held that the Government of Sindh could not grant exemption from Octroi and such an exemption was ultra vires of the Sindh Local Government Ordinance, 1979, the result being that the notification dated 6-11-1986 "also stood nullified in law..." It is sufficient to say that this aspect of the matter too was not considered by the High Court.
4. Now the relief claimed by the respondent in its petition under Article 19 of the Constitution, which relief was by the High Court's judgment in question dated 26-9-1992 granted, was "that the octopi recovered from 2nd July, 1986, onwards be refunded to the petitioner in accordance with the order of the Chairman/Judge, dated 22-2-1987, plus compound interests... And also future amount recovered from October, 1987". This relief was obviously in the nature of writ of mandamus falling within sub-clauses (a)(i) of clause (1) of Article 199 of the Constitution namely a direction to a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of Federation, a Province or a local authority,... "to do anything he is required by law to do".
5. The object of the orders and directions under Article 199 of the Constitution is to foster justice and to right a wrong. "Nawab Syed Raunaq Ali, etc. v. Chief Settlement Commissioner and others" (PLD 1973 SC 236, 258). But it is well-settled that the Courts administer justice in accordance with law. It is equally clear that in the exercise of its jurisdiction under Article 199 of the Constitution, the High Court was not acting as an executing agency of the Tribunal so that it could not go behind the decision, of the Tribunal. Therefore, in order to make a direction under sub-clauses fal(i) of clause
(1) of Article 199 of the Constitution, the High Court was not only r entitled but required by that sub- clause itself to determine whether the appellant was required by law to implement the decision of the Tribunal dated 22-2-1987. It is plain that a person cannot be required to do what is not in accordance with law. And if I am right in thinking that for the exercise of the High Court's jurisdiction to make the direction under sub-clauses (a)(i) of clause (1) of Article 199, it was necessary to determine whether the decision of the Tribunal was in accordance with law, then, the fact that the appellant had not had the Tribunal's decision set aside should not make any difference.
6. There is a long line of authority on the meaning of the expression "used". It will, however, be sufficient to refer to two recent cases namely: "Cantonment Executive Officer and another v.
Brushing (Pakistan) Ltd. And others" (1986 SCMR 1308) and "Municipal Corporation, Faisalabad v.
Atta Muhammad and others" (1990 SCMR 84). In the Brushing (Pakistan) Ltd. Case the question was whether octroi duty was not chargeable on empty liquefied petroleum gas cylinders brought into the Cantonment area for "refilling" the cylinders with L.P.G. In Atta Muhammad case, the respondent had installed power looms in a Chak outside the octopi limits and in the process of manufacturing iron beam (an essential part of the loom) wrapped yarn was thus consumed in the manufacture, the iron beams became empty, and those were sent to a mill situated within the octopi limits of the Corporation for re-filling and re-wrapping the yarn on them. Those were then exported back by the respondents to the Chak for use in their looms for the purpose of weaving. It was held that the process to which the gas cylinders in one case and the iron beams in the other were subjected amounted to 'using' them within the octrci limits. In so holding, this Court enunciated certain principles and applied them to the facts of those cases. It is in the light of the guidance to be gleaned from the decided cases, Brushing (Pakistan) Ltd. And Atta Muhammad cases in particular, that the question whether in the facts of this case, the cylinders can be said to have been 'used' within the octopi limit has to be answered. Unfortunately the Tribunal had not its attention invited to the principles of law enunciated in these cases and the learned Judges of the High Court were content to assume that the decision of the Tribunal was in accordance with law and the appellant was, therefore, required by law to implement it. In my view, therefore, the case should be sent back to the High Court for deciding the matter afresh after determining the questions of law noticed above.
7. I would, therefore, accept the appeal, set aside the High Court's judgment dated 26-9-1992 and send the case back to the High Court for deciding the question of law noticed above afresh. In the circumstances, I would leave the parties to bear their own costs.
ORDER OF THE COURT ' By majority view, the appeal is dismissed with no order as to costs.