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Rr. 31, 32, 33, 35 & 36-Provincial Government Circular No. 5/73 (L. C. S.) (L C-1) 29-63, dated 19th July, 1974-Provincial Government can issue instructions of the nature which may override provisions of Rr. 33, 34, 35 & 36 -It was of no consequence if it was not specifically mentioned in such Instructions that it overrides Rules-Such instructions are, therefore, validly issued and has force of law and hold ground till the time Government withdraws them or issues any instructions contrary to same-Departure of Munici palities in matter of recovery of Octroi from Coalmines from policy decision contained in such Instructions, held, would be without lawful authority and of no legal effect.

Constitutional Petition No. 275 of 1978, decided on 2nd July, 1979 (Quetta) fol. ,

Alta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others P L D 1971 S C 61 ; Muhammad Yousuf Khan Khattak v. S. A. I. Ayub and 2 others P L D 1972 Pesh. 151 ; Managing Director, Pakistan Agricultural Storage and Service Corporation Limited, Lahore and another v. Nawab Din and J others 1981 C L C 284 and Shershah Industries Limited w. Government of Sind and 4 others P L D 1982 Kar. 653 distinguished-

(b) Precedent-

Judgment of Division Bench of a High Court is binding on another Division Bench of that High Court.

(c) West Pakistan Municipal Committees Octroi Rules, 1964-

--- Chaps. IX. X, X1 & XIl-"Statutory function" and "permissible function"-Distinction-No statutory obligation on part of Muni cipal Committee to provide warehouses for all types of goods including coal.

Alta Muhammad Qureshi v. The Settlement Commissioner. Lahore Division, Lahore and 2 others P L D 1971 S C 61 and Muhammad Saleh v, The Chief Settlement Commissioner. Lahore and others P L D 19 S C 326 distinguished.

Bashratullah and Ehsanul Haq for Petitioners.

Dr. Abdur Rehman Brahvi for Respondent.

Date of hearing : 15th April, 1986.

-The petitioners who are eleven in number are coalminers and have their coalmines situated at different areas of Baluchistan. According to the averment of the petition, they have their offices at Quetta and sub-offices in different cities of Sind, Punjab and N.-W. F. P. In order to arrange onward transport of coal to the down country through railway wagons the petitioners have obtained the allotment of plots alongwith the railway siding at Samungali, Quetta where they have to stock their coal till the wagons are allocated to them. It is the case of the petitioners that though they wish to make declaration under rule 35 of the West Pakistan Municipal Committees Octroi' Rules, 1964 (hereinafter referred to as the "Rules"), but their declaration is not accepted by the respondent. It has been averred that originally the coal was dumped outside the Municipal limits, as such, on coal octroi was not charged, but subsequently, the Municipal limits were extended covering the areas of coal depots/damps and thereafter, the octroi was attempted to be levied, but in order to eliminate difficulties of the coal miners, the Government of Baluchistan (hereinafter referred to as the "Government") evolved a formula contained in Circular No. 5173 (LC-1) 29-63, dated 19th July, 1974'(hereinafter referred to as the "Circular"). It may be advan tageous to reproduce the contents thereof, which read as follows :-

"Subject :-Charging of Octroi Duty on Indigenous Coalmines from Coalmines in Baluchistan.

The collection of Octroi duty on coal and mining timber in 'Quetta Municipality, other Town Committees and District Councils includ ing Mach, stacked within their limit and on the Railway platforms within the limit of Railway bad been under consideration with the Government of Baluchistan. It, has now been decided to permit Quetta Municipality and other Municipalities and Town Committees to collect Octroi duty on indigenous coalmine from the coalmines and stacked within the city limits including Railway platforms as under :--

(a) The mine, owners and coal, dealers maintain coal stock at railway stations prior to despatch by railway wagons freshly mined coal is added to the coal stocks and coal from coal stocks is loaded in empty wagons for despatch to destinations in other, Provinces/ places.

(b) According to the Municipal laws relevant rules and regulations octroi duty is not charged on goods if the goods are depatched within the prescribed time limit.

(c) Keeping the above in view Quetta Municipality. other Munici pality; Town Committees and District Councils can charge octroi duty on coal stocks at Railway Stations. The Municipalities, Town Committees and District Councils may charge octroi duty by assessing the coal stocks. It is understood that Railway Authorities assess the coal stocks on Ist of every month The Municipalities Town Committees and District Councils may accept those figures for the purpose of charging octori duty,

(d) It is clear that octroi duty can be charged on the coal stocks only. As the tonnage of coal stocks keeps on changing from time to time, the octroi duty may be assessed on the coal stocks of maximum quantity during the year. For example at Mach Town a mine-owner had a coal stocks "of 1,000 tons on Ist July, 1973. The coal stock it built upto 3,000 tons. After that the coal stocks kept on decreas ing and by 1st June, 1974 it reduced to nil. Under the Circum stances the Mach Town Committees should have charged octroi duty on the maximum tonnage of coal stocks from the concerned mine-owner, that is the octroi duty should have been charged on 3,000 tons of coal.

(2) It has further been decided that you may charge octroi duty on coal stock's and mining timber of maximum tonnage during the last year from 1st July,. 1973 to 30th June, 1974. Octroi duty on coal stocks arid mining timber may also be charged in future.

(3) Please acknowledge. receipt of this communication and all the mine-owners and coal/timber dealers may be formed accordingly under intimation to this department.

It has been averred that now the Municipal Corporation is charging octroi on each and every bag of coal brought by the petitioners from their mines to their coal depots/dumps irrespective of the fact that the same is not imported for use, consumption or sale. It has also been averred that under the Rules, the petitioners have a right to have the coal imported by them to be retained by the respondent in an octroi warehouse after making the requisite declaration and to retain the same for 30 days without payment of octroi duty, provided the same is exported from the Municipal limits. It has- also been averred that the respondent was repeatedly requested to either establish warehouse and allow the petitioners to have their coal retained therein or to refrain from charging the octroi, or that the petitioner s dumps/depots may be declared as octroi warehouses and requisite. staff be appointed to see the complainance of the Rules. On the basis of the above averments, the petitioners have prayed for the following reliefs :-

"It is, therefore, prayed that in the interest of law and justice the impugned action of the respondent i e. charging of octroi on such coal which is not imported by the petitioners for the purpose of consumption, use or sale within the Municipal limits of the respon dent and of not maintaining warehouses within Municipal limits may kindly be declared as illegal, arbitrary and without lawful authority, with a direction to restrain them from charging octroi on such coal and to (if) establish their own warehouses or in the alternate to declare and treat the petitioners depots damps as warehouses. Any other relief deemed fit and proper in the circumstances of the case may also be granted with cost of the petition."

2. The above petition has been resisted by the respondent. They have filed a counter- affidavit, in which, it has been averred that respondent has been charging octroi on the coal, the sale of which, takes place within the octroi limits as the petitioners' Company's Head Offices are situated within the said limits. It has also been averred that the period for temporary retention is 24 hours and if the coal is not dispatched outside the Municipal limits within the said period, then the octroi is chargeable. It has also been averred that the petitioners do not need any warehouse at the coal which is brought within the octroi limits is sold within the said limits. It has been further averred that under the instructions contained in the Circular, the intention was to charge octroi on total coal stock which view has been upheld by-the High Court in Constitutional Petition No. 275 of 1978 filed by the petitioner No: 7.

3. In support of the above petition Mr. Basharatullah. learned counsel for the petitioners assisted by Mr. Ehsanul Haq. Advocate has urged as follows :- .

(i) That the Rules indicate that the octroi is chargeable only if the goods are-imported for consumption, use or same which depends on a declaration under rule 35 of the Rules ;

(ii) That the respondent is under statutory duty to provide facility to terms of rule 35 of the Rules ; and

(iii) That the respondent is also under statutory obligation to maintain warehouses for coal or in. the alternative to declare the petitioner's depots as warehouse in terms of the Rules and to maintain Staff to the cost of the petitioners.

On the other hand, Mr. Abdul Rehman Brahvi learned counsel for the respondent has urged as follows :-

(i) That the respondents is still adhering to the instructions contained in the Circular, which supersede rules 33 to 36 ;

(ii) That the respondent cannot maintain warehouses for coal, nor can declare the petitioner's depots as the warehouses in terms of the Rules for the reason that can only be done with the approval of the Government ; and

(iii) That since the petitioners have their Head Offices in Quetta where sale of coal takes place and, therefore, the octroi is leviable on the coal.

4. Before taking up the above contentions of Mr. Basharatullah, it may be pertinent to observe that the petitioner No. 7 had filed Constitu tional Petition No. 275 of 1978 in this Court against the respondent challeng ing the respondent's right to claim octroi, otherwise to amend the methods provided in the Circular quoted hereinabove. A Division Bench of this Court allowed the above petition by a judgment. dated 2nd July, 1979 and observed as follows as to the effect of the Circular :-

"The learned counsel for the- respondents Municipal Committee how ever contends that because firstly the directive does not invoke the provisions of rules 31 and 32 of the Rule and secondly that they did not specifically relex or override rules 33 to 36 of the Rules therefore, Annexure 'A' cannot be deemed to be an instruction in terms of rules 31 and 32 of the Rules. We are unable to subscribe to such view. Annexure 'A' has been issued with proper lawful authority which can be easily traced to the provisions of rules 31 and 32 of the Rules. It cannot be denied that the Provincial Government has the authority under such rules. to issue instruction of the nature contained in Annexure 'A'. The effect of such instruc tions is that they would override the provisions of rules 33 to 36. It is of no consequence if it is not specifically mentioned in Annexure 'A' that it overrides such rules. The instructions contained in the directive Annexure 'A' are, therefore, validly issued having force of law."

From the above-quoted passage of the judgment, it is evident that this Court has held that the Circular overrides the provisions of rules 33 to 36. The above judgment is binding on us being a judgment of a Division Bench. In this view of the matter, so long as the above Circular holds ground, the petitioners cannot make declaration in terms of rule 35.' From the above quoted Circular it is evident that the respondent had been R/C directed by the Government to charge octroi on a different basis than the normal basis in order to eliminate the coalminers difficulties. Mr. Ehsanull Haq, learned counsel appearing with Mr. Basharatullah, Advocate for the petitioners has submitted that in case the respondent would adhere to the Circular, they would not press their petition. In the above judgment of this, Court, dated 2nd July, 1979 given in the above Constitutional Petition a declaration was granted that the departure of the respondent in the matter of recovery of octroi from the petitioner from the policy decision contained in the Circular is without lawful authority and is of no legal effect.

In our view, the only relief which can be granted to the petitioners is the declaration of the nature which was granted by a D. B. of this Court in the above earlier petition' It may be observed that the petitioners have not challenged any specific recover of octroi for obvious reason that the alternate remedy in the form of appeal is provided under the Rules. It may also-be observed that the above instructions shall hold good till the time the Government withdraws it or issues any instructions contrary to the same.

5. Mr. Basharatullah, learned counsel for the petitioners has referred to the following cases --

(i) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others P L D 1971 S C 61, in which, the Honourable Supreme Court of Pakistan held that it is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is td be done, will invalidate the thing being done in some other manner if the enact ment Is absolute but not if it is merely directory."

(ii) Muhammad Yousuj Khan Khattak v. S. M. Ayub and others P L D 1972 Pesh. 151. In the above case, a D. B. of the erstwhile High Court of West Pakistan at Peshawar held that if a statute provides for doing a thing in a particular manner, it impliedly prohibits that thing cannot be done in any other manner.

(iii) Managing Director. Pakistan Agricultural Storage and Service Corporation Limited, Lahore and another v. -Nawab Din .and 2 others 1981 C L C 284, in which, a learned Single Judge of the Lahore High Court while construing rules 2(m), 35 and 36 of the Rules held that potatoes imported within Municipal Limits and declared under rule 35, for preservation in cold storage and not for consumption, use or sale, are not liable to octroi duty.' It, was pointed out that the word 'use' and has been employed between the words 'consumption' and 'sale', both of which carry the meaning that the goods will get disposed of by consumption or sale.

(iv) Shershah Industries Limited v. Government of Sind and 4 others P L D 1982 Kar. 653, in which, a D. B. of the Sind High Court while construing the definition of 'Octroi' observed that the octroi has been defined in the Octroi Rules as a tax on the import of goods for consumption, use of sale within the octroi limits. It was further observed that the import should be coupled with the purpose of consumption, use or sale.

There cannot be any cavil to the propositions of law laid down in the above-cited cases, but in view of the Circular referred to hereinabove and the judgment given by this .Court in the aforesaid Constitutional Petition No. 275 of 1978, the petitioners cannot invoke rules 33. to 36.

6. Adverting to Mr. Basharatullah's contention that the respondent is under statutory obligation to provide ware house for the coal for temporary retention or to declare the petitioners' depots warehouse, it may be observed that the Rules contemplate the goods in transit, for which a transit pass is to be obtained under rules 64 to 75 Chapter 1X and the amount of octroi is to be deposited but its refund is to be claimed after the goods are taken out of the limits within the period specified in the transit pass in terms of Chapter X. The petitioner's case do not fall under the above category as the dump their coal at the sites situated within the octroi limits and from there, they export the same outside the octroi limits as per their averment, through the railway wagons. Whereas, Chapter XI1 deals with tlr retention of goods at warehouses. It may be observed that rule 86 provides that when it is declared under rule 35 that the goods to be imported are not intended for consumption, use or sale within the octroi limits, but are intended for temporary retention and the purpose is not covered by the provisions of Chapter XI of these rules, the importer may apply for tile retention of such goods in an Octroi Warehouse, .if any, whereas, rule 87 provides that the Municipal Com mittee may, with the approval of the Government, establish an Octroi Warehouse where such arrangements as may be necessary, shall be made for the reception and custody of goods as are meant for temporary retention within the Octroi limits. It may further be stated that under rule 89 every Octroi Warehouse shall be deemed to be an Octroi Post for the purposes goods to be imported or exported from the Octroi Warehouse, for which a Municipal Committee may levy such charges for the use of the Octroi Warehouse as may be fixed by it, from time to time, with the approval of the Controlling Authority in terms of rule 90. It has been pointed out by Mr. Abdul Rehman Brahvi, learned counsel for the respondent that factually the respondent has warehouses in terms of the, move rules, but it is not the case of the petitioners, nor of the respondent that the above warehouses are suitable for the. Storage of coal, which is brought in a very large quantity and which can not be kept with other goods it view of its nature.

From the reading of the above rules we cannot infer a statutory obligation on the part of the respondent to provide warehouses for all types of goods including for coal.' As pointed out hereinabove, rule 8 provides that Municipal Committee may with the approval of the Govern meat establish an octroi warehouse, which indicates that it is a permissible function and not a function which the 'respondent is bound to perform. A distinction is to be drawn between the statutory function, which a Corporation is bound to carry out in view of mandatory nature of the duties and permissible function, which a Corporation may perform or may not perform. The establishment of warehouses by the respondent, in our view, falls under the second category. However, it was contended by Mr. Basharatullah that the word "may" employed in rule 87 is to be read as "shall" as the above two words are interchangeable. In this behalf, reliance has been placed on the following cases by him :-

(i) Atta Muhammad Qureshi v. The Settlement Commissioner Lahore Division, Lahore and 2 others P L D 1971 S C 61, in which, the Honourable Supreme Court of Pakistan held that as a general rule, statutes, which enable persons to legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions there of are expressed in merely affirmative language.

(ii) Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 others P L D 1972 S C 326: In the above case, the Honour able Supreme Court of Pakistan while construing Para. 20 of Settlement Scheme No. 1 observed that the word may does not necessarily suggest a recommendatory directive, but person satisfying all conditions of Press note, was entitled to transfer of property even -instructions contained in the Press note be merely directory and not mandatory.

7. The above cases have no application to the present case for more than one reason, firstly, a perusal of the Rules will indicate that in some rules the word "shall" has been employed, whereas in some other, the word "may" has been used and, therefore. it is evident that the use of the above two different words in the same rules indicate that the framers of the Rules intended to convey two different meanings, secondly, under rule 87 a Municipal Committee cannot of its own establish a warehouse, but it is required to obtain approval of the Government which approval may and may not be given. If doing of a thing or an act by a Corporation depends on the volition of another functionary, in our view, it cannot be said that it is under a statutory duty to do that thing or act. In this view of the matter, a writ or direction in the nature of mandamus can not be issued, particularly, when the Government has not been impleaded a party to the above writ petition.

8. This lead us to the question, whether the respondent is under any statutory duty to declare that petitioners' depots or dumping sites a s warehouses under rule 91. In this behalf, it "may be pointed out that rule 91 provides that the Municipal Committee may, subject to such conditions as may be determined from time to time with the approval o the Government, set up an Octroi Warehouse at the premises of an business concern to cater to the requirements of such concern with regard to the temporary retention of goods in the octroi limits, provided the such octroi warehouse shall be under Municipal management including the staff and the business concern shall reimburse for the same. The language employed in the above rule is more or less in identical term as used in the above rule 87 and, therefore, some parity of reason is applicable as referred to hereinabove in relation to rule 87.

9. For the aforesaid reasons, we allow the petition to the extent of declaring that the respondent is entitled to recover octroi on coal in term of the Circular so long as it is not withdrawn or modified. Any departure from it would be without lawful authority and of no legal effect. There shall be no orders as to cost.

M. s. A. Order accordingly.

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