Haji MUHAMMAD DIN Versus TOWN COMMITTEE, KHANQAH DOGRAN

The petitioner who is carrying on the business of dyeing hides and animal skins has filed this Constitution petition calling in question the notification dated 18-3-1981 whereunder octroi duty was levied and the notification dated 8-3-1980 whereby the limits of the Town Committee were extended.

2. The octroi duty at the rate of Rs. 0.05 per killo was levied on "Chhal Kikar" and "Chhilka Anar" the two items used in the colouring process being carried out by thse petitioner under the impugned notification. The Town Committee, however, during the pendency of this petition issued another notification dated 8-6-1983 whereby the octroi duty in these two items has been decreased and duty is now payable at the rate of 0.03 per killo. The petitioner has not challenged the subsequent notification till date. It may also be mentioned that prior to this one Lal Din filed Writ Petition No. 9505/80 challenging the demand and collection of octroi duty on these very items on the basis of the notification then in force anti the same was accepted by this Court vide order dated 2-12-1980 with the direction to refund the fee recovered from Lal Din as it was found that there the item in respect of which objection was taken in the writ petition were not included in the schedule of then in force Khanqah Dogran, respondent issued a public notice declaring its intention to impose octroi duty on the items in question. It is the case of the respondent Town Committee that after following procedure prescribed by law the notification dated 18-3-1981 was issued levying the octori duty at the aforementioned rates by including Chhal Kikar and Chhilka Anar under item No. 39 of the Schedule to the said notification. The petitioner on the other hand asserted that extension of the limits of the Town Committee and the levy of octroi duty is unauthorized and illegal. It was further asserted that to avenge the action of filing writ petition in the High Court by Lal Din and of filing a suit in the Civil Court at Sheikhupura, the Chairman of the respondent manipulated a false report and issued notice dated 20-4-1981 under sections 192 and 220 of the Punjab Local Government Ordinance, 1979, calling upon the petitioner to pay a sum of Rs. 5,307.50 within three days of the issuance of the notice. This demand was raised on the allegation that the petitioner imported Chhal Kikar weighing 250 bags (9,250 kilograms) through Bilty No. 92 via Sargodha into the .limits of Municipal Committee Khanqah Dogran. The petitioner asserted that these allegations are false as Bilty No. 92 (Annex-B) did not pertain to the petitioner as one Muhammad Akbar resident of Kamoki Mandi transported these 250 bags under the said Bilty on 11 4-1981 and the aforesaid Lal Din transported another 250 bags under Bilty No.99 in truck No. SSA-9251 on 18-4-1981, the date on which the petitioner is being alleged to h ave imported the material. The assertions that Bilty No.92 does not pertain to the petitioner and it refers to one Muhammad Akbar and that it was Lal Din who has transported 250 bags of Chhal Kikar on 18-4-1981 through Bilty No. 99 were taken for the first time in the writ petition without making any repay to the notice served and without demanding any enquiry into the allegations on the basis of which the notice was issued.

3. As regards the notification extending ate limits of Municipal Committee, it was argued that an area cannot be included within limits of Municipality only for the purpose of extracting or collecting tax or octroi duty and that the notification of extension of limits having been made for achieving the said purpose is ultra vires as such colourable exercise of statutory power is unauthorized. In support of this plea reliance was placed on Sind Fine Textile Mills Ltd., Karachi v. People's Municipality only Sheiichulrura and 2 others (PLD 1978 Ear. 449). The legality of the notification laying octroi duty was challenged on the ground that the same was ineffective in law; the procedural steps required by law were not taken.

4. Learned counsel for the petitioner when asked to specify the procedural steps which were allegedly not taken before issuing the impugned notification, stated that the requisite information of the items mentioned m rule 4 of the Punjab Local Councils Taxation Rules, 1980 was not given in the public notice issued by the Committee. There is no a either of these submissions. In the writ petition necessary factual oasis to the two legal objections has not been laid down. The only assertion made in respect of the notification extending limits is contained in para. 14 (a) of the petition. The only plea taken is that the 'area where the petitioner and others are running their business have been extended unauthorised and the inclusion is beyond the purposes of law. Similarly in respect of the other legal contention the assertion made in para. 7 is hat respondent No.2 acting with mala fides arranged the levy of octroi fee hastily thought due observance of the procedural steps required m law and that no notification has so far been issued in the official Gazatte under the orders of the competent authority. It is apparent that with these assertions it cannot be successfully argued that the inclusion of the area in question within the Municipal limits was unauthorised. The precedent cited by the learned counsel is also of no avail as in the instant case the area in question has been included and declared for all intents and purposes of the Punjab Local Government Ordinance, 1979 and not for the purposes of levy of octroi duty only. This was not the situation in the precedent cited and as such the same is not applicable to the instant case. As regards the second contention it will be noted that in the written statement submitted by the Town Committee it has been asserted that change in the old notification was in hand already on the directions given by the Government contained in Memo. No. SOVI (IG) 3 (14) 79, dated 2-9-1980 to enhance octroi duty by 10% each year and that instead of taking any hasty steps a fresh notification was got published after following all prescribed procedure and publication of public a notice inviting objections, etc. The petitioner has not appended these public notices and as such the assertion that requirements of rule 4 of the Taxation Rules, 1980, were not fulfilled cannot be examined. This disposes of the two legal contentions raised by the learned counsel for the petitioner. The other grievance made is in respect of issuance of notice demanding octroi duty and penalty amounting to Rs. 5,307.50. Admittedly, the petitioner till date has not demanded even a hearing or an enquiry in to the allegations on the basis of which demand was raised. Learned counsel for the Town Committee submitted that in case the petitioner even now submits a reply to the notice, the same will be looked into and examined on merits by the Finance Committee and the recovery will be effected if any octroi duty is found payable after due inquiry and after providing opportunity of hearing to the petitioner. Learned counsel for the Committee further states that the prosecution initiated will be withdrawn by the Committee in view of the fact that the Committee is prepared to give an opportunity of hearing to the petitioner. The position taken by the respondent is reasonable. The petitioner, if so desires, may, therefore, submit a reply to the demand notice and in case any reply is submitted within 15 days the matter shall be enquired by the Finance Committee as undertaken before me and shall be decided on merits.

5. The net result of the above discussion is that the petition fails on merits and the same is disposed of with the observations made above.

6. No order as to costs.

M.Y.H./383/L Petition dismissed.