MUNCIPAL COMMITTEE, MULTAN Versus BURMAH SHELL STORAGE & DISTRIBUTING CO. OF PAKISTAN LTD.

This order will dispose of two writ petitions, namely, Writ Petition No. 483 of 1964, and Writ Petition No. 207 of 1966. The earlier was filed by Municipal Committee, Multan, against the Burmah Shall Oil Storage and Distributing Company, while the later was filed by the said company against the Municipal Committee, Lyallpur.

2. In the earlier petition the Chairman, Municipal Committee, Multan, by his order dated 22nd January 1963 directed that entire bulk supply of oil and lubricants in Multan be levied octroi charges and no export pass be issued. Only Burmah Shell Oil Storage and Distributing Company of Pakistan Limited filed an appeal against this order before the Additional Commissiocer (Revenue) Multan, who on 23rd October 1963, made an observation in his order that the contention of the Chairman, Municipal Committee that the oil was sold in Multan was wrong as it was merely exported and was sold to the agencies in outlying places like Dera Ghazi, Khan. This order of the Additional Commissioner was challenged in Writ. Petition No. 483 of 1964.

3. In Writ Petition No. 207 of 1966, Burmah Shell Oil Storage and Distributing Company, The Mall, Lahore, challenged the notice of demand No. OB/1204/G dated 9th September 1963, issued by the Municipal Com mittee, Lyallpur, claiming a sum of Rs. 44,655.44 as octroi charges on the import into Municipal area, of 178621 maunds 30 seers of furnace oil for the period from 20‑5‑1960 to 30‑5‑1962. This order was appealed by the company before the Commissioner, Sargodha Division who dismissed the appeal vide his order dated 10th August 1965. Counsel for the parties say, that a common question of law is involved in the decision of both these writ petitions.

4. I shall embark upon deciding the legal question involved. By virtue of section 33 of the Municipal Administration Ordinance X of 1960. al Municipal Committee is competent to levy taxes, rates, tolls and fees mentioned in the Third Schedule with the previous sanction of the Govern ment in the prescribed manner. Item No. 4 of the Third Schedule mentions: "tax on The import of goods for consumption, use or sale in a municipality." The dispute between the parties is that the lubricants purchased at the regional office of the company, of which the price is paid there, are liable to levy of tax by the Municipal Committee when they are brought in the depots situated within the precincts of the Municipal Committee, irrespec tive of the fact that some of the goods were desptched to destinations outside the limits of the Municipal Committee to the agents of the com pany for use and consumption in those areas. The company is not entitled to the benefit of provisions of section 32‑A of the Municipal Accounts Cede. There is no denying the fact that the lubricants which are brought to the storage depot for sale and consumption within the area of Municipal Committee, can be subjected to octroi duty, but when the price o the goods has been paid by an agent of the company working in a city other than the place where storage of the company is situate and the lubri cants are sent to him, in that case such goods cannot be liable to octroii duty, provided the distributor complies in letter and spirit the conditions laid down in para. 5, Chapter 32‑A of the Municipal Account Code. Reliance is placed on Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corpo ration ( PLD1967SC241 ).

5. Ch. Muhammad Anwar Buttar, learned counsel for Municipal .Committee, Lyallpur, raised the following four preliminary objections:‑

(i) The petitioner should have filed a civil suit and this Court should refrain from exercising its extraordinary jurisdiction under Article 98 of the Constitution of Islamic Republic of Pakistan.

,(ii) The alternate legal remedy should have been availed of by way of appeal.

#ii) The company is estopped from challenging the resolution passed by the Municipal Committee on the basis of discussion between the Chairman and the Municipal Committee, Lyallpur, specially when the representative of the company admitted the liability.

(iv) No appeal against recovery is competent.

6. As regards the first objection, this Court has ample authority to ‑exercise its extraordinary jurisdiction under Article 199 of the Constitution yin an appropriate case even if civil suit may be pending. Reference is made to Salahuddin etc. v. Frontier Sugar Mills and Distillery Ltd. (PLD1975SC226).

Normally a person should approach this Court after exhausting the alternative legal remedy provided by law, but if such remedies are inade quate 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. The objection is otherwise irrelevant, for, in both the petitions either the Municipal Committee or the private party has gone in appeal against the orders of imposition of octroi duty.

7. Admission by representative of the company acknowledging the ,liability before the Chairman, Municipal Committee, Lyallpur, would no stand in his way, for, the imposition of duty was not in accordance with D ‑law, upon the well known principle of expressum facit cessare tacitum. (If .doing of a particular thing is made lawful, doing of something in conflict .of that will be unlawful). Reliance is placed on E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 536 ).

8. The last objection has equally no force, for, if the amount demanded :to be recovered has been illegally imposed by an authority no competent to levy the same the realisation of the amount cannot b given effect to, for, if the basic order is wrong the superstructure raised thereon falls to the ground. Yousaf All v. Muhammad Aslant Zia and others ( P L D 1958 S C (Pak.) 104 ) refers.

9. Learned counsel for the Municipal Committee, Lyallpur submitted that the sale and delivery of the goods in this case has taken place within the municipal limits of Lyallpur and as such the Municipal Committee is competent to levy the octroi duty even if the goods are despatched outside the limits thereof. He cited Pakistan Textile Mill Owners Association, Karachi and others v. Administrator of Karachi and others (P L D 1963 S C 137). In that case the goods were despatched to the Mill area outside the tax area by railway although it was loaded and conveyed to the Mill premises situate within the Municipal Committee.

According to Mr. M. Anwar learned counsel for the company the bargain was struck and the price was paid at the regional office of the company not situate within the Municipal Committee, Lyallpur, and as such the Municipal Committee, Lyallpur, is not competent to levy the tax. Ch. Muhammad Anwar Buttar was unable to convert the submission made by Mr. M. Anwar.

10. I am, therefore, clear in my mind that if the sale of the lubricants has taken place at the office of the company not situate within the pre cincts of the Municipal Committee concerned and such goods are neither used nor consumed within the area of the Municipal Committee and are despatched to purchasers living in different cities, they cannot be subjected to octroi tax. In this view of the matter Writ Petition No. 207 of 1966 isaccepted while Writ Petition of the Municipal Committee, Multan, is dismissed. It is argued by Mr. M. Anwar learned counsel for the company that Municipal Committee, Lyallpur, has charged oetroi tax on such goods which cannot be subjected to this levy since they were purchased by different dealers of the Burmah Shell Company, carrying on their business in cities other than Lyallpur simply because the lubricants were despatched to them from storage depot at Lyallpur. That amount may be refunded. Tne company is obviously entitled to the refund of that amount after taking accounts from the Municipal Committee. The company of course shall be entitled to the commercial interest on that amount which was illegally charged. The parties are, however, left to bear their own costs. s. o. Petition dismissed.