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Constitutional Petition No. D‑989 of 1982, decided on 1st February, 1983.
‑‑Provincial Legislative List, Item No. 47‑Provisional Con stitution Order (1 of 1981), Art. 9‑Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2‑Octroi‑Imposition by Town Committee‑Octroi imposed on petroleum challenged in constitu tion petition before High Court on ground that petroleum being a Federal subject even a cess in nature of octroi was not leviable for bringing same within Municipal area because petroleum was to be sold throughout country at uniform price ‑ Constitution of Pakistan, 1972, Item 47, not inserted in any of two lists viz. Federal List and concurrent List of Constitution of Pakistan, 1973 and imposition of cesses on entry of goods in local area appearing to have been within Provincial field‑Matter involving important question of law and interpretation of Constitution and point being of first impression Constitution petition, in circumstances, admit ted‑Prayer for interim stay rejected because of matter being related to imposition of cess.
C. R. A. No. 138/1963 and C. P. No. 199/1972 (unreported); Administrator, Lahore Municipality v. Doulat Ram Kapoor A I R 1942 F C 14 and Burmah Oil Storage and Distribution Company of Pakistan Ltd. v. Additional Commissioner (Judicial), Karachi 1982 C L C 2528 ref.
Imamally G. Kazi for Petitioner.
‑Granted, subject to all just exceptions.
2. The contention of the learned Advocate is that petroleum, being a Federal subject, even a cess in the nature of octroi tax was not leviable in respect of bringing in of petrol within the Municipal area. He further states that it is the policy, or, a directive of the Government that the petroleum should be sold at uniform price throughout Pakistan, and the imposition of octori tax will unbalance the Federal Government's Policy, or, directive, because the seller will, as of necessity, pass on this expenditure to the buyer. He has, however,, not produced any copy of the directive, or policy statement before us.
Additionally, the learned Advocate has relied on an unreported decision of West Pakistan High Court, Peshawar Bench, in Civil Revision Application No. 138/1963, decided by Mr, Justice Muhammad Afzal Cheema on 25th May, 1971. The case of Administrator, Lahore Municipality v. Doulat Ram Kapoor (AIR 1942 F C 14) decided by the Federal Court and is also a case in point. The learned Advocate also relied on a Division Bench judgment of this Court in the case of Burmah Oil Storage and Distribution Company of Pakistan Ltd. v. Additional Commissioner (Judicial), Karachi (1982 C L C 2528) The judgment may also be found in the record of C. P. No. 199/1972, decided on 20th May, 1982.
It was pointed out to Mr. Imamally G. Kazi that levy of octroi has to be distinguished from imposition of a tax. Levy of octroi would be in the nature of a cess rather than a tax. It was also pointed out to the learned Advocate that in the Interim Constitution of Pakistan, 1972, a Item 47 in the Provincial Legislative List, it was provided that the Provincial Government, or, the Legislature had the power to impose a cess on the entry of goods into a local area for consumption, use and sale therein. However, in the Constitution of 1973, no separate Provincial Legislative List was provided, but Item 47 of the Provincial Legislative List, as appearing in the Interim Constitution, does not appear to have been inserted in any of the two lists, viz. the Federal List and the Con current List, in the Constitution of 1973. It would thus appear that the makers of the Constitution had intended to reserve the imposi tion of cesses on entry of goods in a local area with the provincial field.
This petition does involve important questions of law and interpretation of the Constitution. The point is also of first impression. We will, therefore, admit this petition. Notice.
3. We are not inclined to grant stay in this case, as the matter relates to imposition of cess, or tax. Dismissed.
M. A. K. Appeal allowed.
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