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Constitutional Petition No. 964 of 1973, decided on 11th February 1982.

‑‑Art. 199 read with West Pakistan Local Councils (Imposition of Taxes) Rules 1961‑Imposition of tax‑Non‑compliance of proce dure‑Petitioners objecting to imposition of tax on ground of non‑compliance of requisite procedure‑Respondents even not filing any counter affidavit in spite of opportunity given‑Held, respondents not entitled to recover octroi without complying with legal requirements provided under rules.

Mansoor Ahmed Khan for Petitioners.

Imam Ali G. Kazi for Respondents.

Date of bearing : 11th February, 1982.

In this petition the petitioners have sought following reliefs :‑

(a) to issue an appropriate writ or writs restraining the respondents together with their subordinates, officers, servants and the auction purchaser and each of them from realising the octroi tax or otherwise enforcing the said notification or any part thereof against the petitioners, their factories directors, officers, servants, guards and company property and assets or otherwise obstruct any goods intended for use into or going out of the factories ;

(b) to issue a writ of quo warranto quashing and declaring void the notification NOADBD/UC (tax) 87 dated 10‑1‑1973 published in the Sind Government Gazette on 18‑1‑1973 as corrected by Notification No. ADLG/UC/Tax/2229 dated 14‑7‑1973 published in, the Sind Government Gazette dated 19‑7‑1973 and also to be of no legal effect or consequence and cannot be enforced in any part thereof against the petitioners or any of them ;

(c) the writ of mandamus restraining the respondents from giving effect to the provisions of the tax notification referred to in clause (b) above or any part thereof against the petitioners ;

(d) the costs of this petition ;

(e) special cost of Rs. 5,000 ; and

(f) any other/further/additional relief or reliefs which Honourable

Court may deem fit and proper under the circumstances of the case.

2 In the above petition one of the pleas raised by the petitioners was hat the respondents have not complied with the procedure for the imposi tion of tax under the West Pakistan Local Councils (Imposition of Taxes) A Rules, 1961. No counter affidavit to the petition has been filed though the petition is pending for nearly 9 years. On 28‑1‑1982 we had heard the arguments of the learned counsel for the petitioner, who during the arguments fairly submitted that another opportunity be given to the respondents to produce documents to show that in fact they have complied with the procedure referred to hereinabove. We had accordingly adjourned the above case for today and had ordered that the respondents would file their counter‑affidavit With the relevant documents within 7 days from the date of the order. No counter‑affidavit has been filed in spite of this further opportunity given to the respondents Mr. Imam Ali Kazi, learned R counsel for the respondents states that in spite of the fact that he had sent a telegram to the Deputy Commissioner Nawabshan, with the request to depute the officer concerned with the relevant record in order to file a counter‑affidavit but no body has contacted him. He requests for further adjournment, which is opposed by the learned counsel for the petitioners.

3. Since the above petition is pending for nearly 9 years and as the respondents in spite of the fact that they were given further opportunity on the condition mentioned in the order dated 28‑1‑1982 have not filed any counter‑affidavit in our view the opposition to the request of adjournment made by the learned counsel for the petitioner seems to be reasonable. As there is no refusal to the averment that the procedure referred to herein above and provided for in the imposition of tax under the West Pakistan Local Councils (Imposition of Taxes) Rules, 1961 has not been followed, we allow the petition and declare that the respondents are not entitled to recover the levy of octroi without complying with the legal requirements provided for under the above rules and, therefore, the impugned demand is without lawful authority and of no legal effect. The respondents are also restrained from acting upon the above impugned demand.

There will be no order as to costs.

K. M. A. Petition allowed.

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