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P L D 1967 Karachi 537

 

Before A. S. Faruqui and Abdul Kadir Shaikh, JJ

 

KARACHI MUNICIPAL CORPORATION‑Appellant

 

versus

 

MESSRS KARIMI & Co.‑Respondents

 

Letters Patent Appeal No. 119 of 1963, decided on 14th December 1966.

 

 

Tahir Hussain for Appellant.

 

Haji Motiur Rehman for Respondent.

 

Dates of hearing : 2nd and 3rd November 1966.

 

JUDGMENT

 

FARUQUI, J.‑This is a certified letters patent appeal against the judgment of Qadeeruddin Ahmad, J. by which he set aside the judgment of the Additional District Judge, Karachi, passed in Civil Appeal No. 80/1959.

 

2. The material facts are these: The plaintiff‑respondent Messrs Karimi & Co. are the owners of the Liberty Cinema situated in Block No. 5 (Paposh Nagar) Nazimabad, Karachi. The appellant‑defendant, the Karachi Municipal, Corporation, demanded show tax from the plaintiffs at the rate of Rs. 10 per show for exhibiting films in the said cinema and also required them to submit written returns on the prescribed forms in that regard. The plaintiffs challenged this demand by a suit instituted in the Court of the III Sub‑Judge, First Class, Karachi praying for a declaration that the demand, levy and imposition of the tax on the plaintiffs’ cinema or the demand for submission of show returns were illegal, ultra vires and invalid. A permanent injunc tion was also sought restraining the K. M. C. from doing .We things in respect of which the declaration was sought. The learned Sub‑Judge held that the K. M. C. did not have any control over the Nazimabad area which had been allotted by the Ministry of Works; Government of Pakistan and which had not transferred it to the Corporation and continued the control it itself. He further held that Nazimahad where the Liberty cinema was situated did not lie within the municipal limits of the K. M. C. It further held that under section 99 of the City of Karachi Municipal Act, the Corporation was entitled to levy and impose tax for the purposes of the Act which meant that the tax had to be levied for the obligatory duties enumerated in section 34 of the Act and as it was admitted that the defendants had no control or concern with the management, development, scavanging, lighting, etc. in the area it would be most unreasonable to hold that the Corporation was entitled to levy taxes. In view of these findings the plaintiffs’ suit for declaration was decreed and it was further provided that the Corporation shall be entitled to levy and recover taxes after they have started rendering service to the residents of the locality as enumerated under section 34 of the Act and the area is handed over to them by the Government. On appeal by the Corporation the learned Additional District Judge revered the judgment of the Sub‑Judge and dismissed the plaintiffs’ suit. It appears that the main question which was argued before the learned Additional ‘District Judge was that the Nazimabad had been excluded from the limits of the Karachi Municipal Corporation. This contention of the plaintiffs was repelled. It was further found that from the fact that the K. M. C. was not exercising any control over the Nazimabad it did not follow that it had lost its right to levy taxes which it otherwise was entitled to do. The plaintiffs preferred a second appeal to this Court which was allowed by the learned single Judge who decreed the plaintiffs suit in regard to the prayer made in the plaint subject to the condition that the declaration and injunction would be operative only relating to the period ending on 13th October 1958. It was conceded on behalf of the plaintiffs that as from 13‑10‑58 the K. M. C. was entitled to levy the said tax. Upon a certificate granted by the learned single Judge under clause 10 of the Letters Patent Appeal the K. M. C. has filed this appeal.

 

3. Mr. Motiur Rehman, the learned counsel for the Respondent‑plaintiffs took a preliminary objection. It was urged that this appeal was barred by limitation. The relevant facts in this regard are these. The judgment was ‑delivered on 27‑8‑63 and the appellant applied for a copy of the judgment on that very date. This copy was delivered on 24‑9‑63 and the Letters Patent Appeal was filed on 14‑10‑63. It is conceded by Mr. Motiur Rehman that if time for obtaining the copy of the judgment is excluded this appeal would be within time. It is, however, contended that that time cannot be excluded. Reliance is placed by him on a Division Bench judgment of this Court sitting at Baghdadul Jadid in the case of Abdul Karim v. Sheikh Muhammad (P L D 1966 B J 14), in which their Lordships had mainly relied on a Full Bench judgment of the Lahore High Court in the case of Jogdhian v. Husain (A I R 1935 Lah. 328). Following this decision their Lordships held after quoting rule 4 in Chapter I‑A of Volume V of the High Court Rules that as it was not necessary to file a copy of the judgment of decree with the appeal the time taken in obtaining such copy cannot be excluded for the purposes of limitation. Unfortunately the attention of their Lordships of the Division Bench was not drawn to a subsequent Full Bench judgment consisting of 5‑Judges of the Lahore High Court in the case of. Punjab Co‑operative Bank Ltd. (A I R 1941 Lah. 257) in which the earlier decision in the case of Jogdhian was overruled. It was held that the statutory rules flamed by the High Court under clause 27 of the Letters Patent are a “Special Law” and, therefore, by virtue of the provisions of section 29, Limitation Act, section 12 of that Act governs appeals under clause 10 from the judgment passed by the High Court in its appellate jurisdiction so that the “time requisite” in obtaining a copy of the judgment appealed from must be excluded.

 

4. Mr. Motiur Rahman, who had also not brought to our notice this Full Bench judgment, argued that rule 4 referred to above made it clear that the only time which was to be excluded was the tune spent in obtaining the certificate for the purposes of filing a Letters Patent Appeal from appellate judgment of a single Judge. He pointed out teat rule 4 provided for the period of limitation of 30 days within which such an appeal had to be filed from the date of the judgment appealed from and that in computing this period what was to be excluded was the time spent in obtaining the certificate as provided by the latter part of the rule. It was pointed out that under this rule it was expressly stated that in an appeal under clause 10 of the Letters Patent the memorandum of appeal need not be accompanied by a copy of the judgment, decree or order appealed from. It was, therefore, argued that time taken in obtaining the certified copy of the judg ment was not to be excluded in computing the period of limitation. This argument was considered in the said Full Bench judgment of the Lahore High Court (A I R 1941 Lah. 257) which overruled the earlier judgment. It had been argued before their Lordships that in an appeal from the order of a single Judge to a Bench of two or more Judges the appellant was not required to file copies of the orders appealed from and so the time spent in obtaining such copies cannot be said to be `time requisite’ within the meaning of section 12 of the Limitation Act. Their Lordships noted the fact that this question had been the subject of con troversy in the Courts in India for a long time but that controversy has been set at rest by the Judicial Committee of the Privy Council in the cast of J. N. Soorti v. T. S. Chattiar (Rang. 302). Their Lordships after quoting from a portion of the judgment of the Judicial Committee which had been delivered by lord Phillimore, observed that after this clear pronouncement it could no longer be maintained that in appeals governed by Art. 151 or other Articles of Schedule 1 to which section 12 of the Limitation Act applied the appellant was not entitled to the benefit of that section in cases in which it was not necessary to file copies of the judgment, decree or order appealed from.

 

5. Rule 4 itself provides that the period of limitation pres scribed in this rule shall be computed in accordance with the provisions of section 12 of the Indian Limitation Act. Section 12 pro vides that in computing the period of limitation prescribed for an appeal, etc the time requisite for obtaining copy of the judgment shall be excluded. That being so, the only argument which could be pressed in support of the preliminary objection would be upon the basis that copies of the judgment or decree need not be filed in an appeal under clause 10 of the Letters Patent as provided in rule 4. However, for the reasons contained in the said Full Bench decision of the Lahore High Court with which we are in respectful agreement, this argument must be repelled. The fact that a copy of the judgment need not be accompanied is merely a facilisy which is permitted under the rule but it often becomes necessary for a counsel to examine the judgment before drafting the grounds of appeal. Therefore, when such a copy has been applied for it is difficult to see how the time taken in obtaining such copy is not to be excluded in computing the period of limitation, particularly when the rule itself provides that section 12 of the Limitation Act would apply. We accordingly repel the preliminary objection raised by the learned counsel and bold that the appeal is within time.

 

6. On the merits Mr. Muhammad Tahir, the learned counsel for the appellant Corporation and Mr. Motiur Rahman for the respondent mostly repeated the same arguments which had been advanced by them before the learned single Judge and which have been fully brought out in the elaborate judgment delivered by him.

 

7. With regard to the question whether the area of Nazimabad was excluded from the limits of the City of Karachi so as to disentitle it from imposing any tax in that area the learned Judge in para. 16 of his judgment observed thus:

 

“It is immaterial from the above point of view that Nazimabad was a part of the territory over which the jurisdic tion of the respondents extended and that the present appellants were `residents’ of it because the appellants are not questioning the personal or territorial jurisdiction of the respondents to impose taxes but they are questioning the statutory authority of the respondents to do so, in the absence of all real prospects of the accrual of any those benefits that were statutorily assured from the tax.”

 

From this question it would appear that the plaintiff assessees had made a concession upon the point which had been found against them by the Additional District Judge with regard to the question whether Nazimabad was within the limits of the city of Karachi over which the K. M. C. has jurisdiction. Apart from this concession we are satisfied that the stand taken by the plaintiffs in the first and the second‑‑ Courts in this respect v as not correct. It is not disputed that the area comprising Nazimabad does, according to the Schedule to the Act, failed within the municipal limits of the city of Karachi but what had been urged was that this area having been resumed by the Central Government under section 57 of the City of Karachi Municipal Act it went out of the limits of the city of Karachi so that the defendant Corporation had no jurisdiction to levy tax over that area. This contention was devoid of any force anti was rightly repelled by the Additional District Judge. The fact that a certain area in city is resumed for certain purposes does not lead to its being delimitised; This result could only be achieved by action under Chapter XVI of the Act. Section 271 of that Chapter provides that the Provincial Government may notify its intention, after consulting the Corporation, to exclude from the city any local area defined the notification. The effect of such exclusion in section 272 wherein it is stated that when a local area is excluded from the city under section 271 this Act, all rules, orders, directions, notices and powers made issued or conferred thereunder, or in force through out the city at the time when the local area is be excluded, shall cease to apply thereto. Admittedly, no notification under section 271 was made in respect of the Nazimabad area so that there was no question of any effects of exclusion as provided by section 272. It must, therefore; follow that this Act, and all rules, etc. applied to the Nizamabad area. The question which then remains to be considered is whether by reason of the Corporation not providing certain services or amenities in that area was disentitled from levying the show tax.

 

8. The learned single Judge approached the above question in the following way. Whether the Corporation was able to fulfil the purposes of the Act in that area at the time of the demand and secondly whether the chances of such fulfilment at a sub sequent time could justify it. He then went on to observe that the inability of the Corporation in fulfilling the purpose on the Act in Nazimabad before the 13th of October 1938 was clear because there was no evidence that in 1956 when they demanded show tax there was any certainty as to when they might be able to gain the control of Nazimabad area. Reference was made to para. 4 (b) of the plaint and para 3 of the written statement. It was further observed that as to the chances of subsequent fulfilment of the purposes of the Act in that area there was no evidence that the respondent had any plan to use, the income received from Nazimabad, for the purposes of the Act in that area at a subsequent time or to use it in another area over which their legal jurisdiction extended so as to confer any benefit on Nazimabad. It was conceded that show tax may not necessarily be imposed after providing the services and amenities specified in the Act, but it was added that in view of subsection (2) of section 96 of the Act the purposes of the Act could not be separated from the imposition of any tax. The learned Judge then went on to discuss the principles of taxation and the gist of this discussion was that the right to impose tax must be related to the duties which the Taxation authority had to perform. The learned Judge by reading section 96 and 34 of the Act came to the conclusion that in so far as the defendant Corporation bad not performed and did not have the capacity to perform the obligatory duties as enumerated in section 34 of the Act in respect of the Nazimabad area, it cannot be said that the collection of show tax was for the purposes of the Act and which was the only reason given in section 96 for the imposition of tax. Section 96 (2) provides that the Corporation may for the purposes of this Act impose any of the following taxes. The material sub‑clause is (d), which reads:

 

“Any other tax which the Provincial Legislature has power under the Government of India Act, 1935 to impose in the Province.”

 

It is not in dispute that show tax could otherwise be imposed by the Corporation. Section 34 gives a long list of obligatory and discretionary duties of the Corporation. Now, there are certain kinds of taxes which can be levied only upon the fulfilment o certain conditions. These may be found in sections 99 and 100 of the Act. Section 99 relates to conservancy tax and section 100 to the water tax. Under section 99 the conservancy tax can be levied only after a public notice is given to the effect that the removal of sewage, offensive matter and rubbish is undertaken by the municipal agency. Section 100 provides that water tax shall be levied only in respect of buildings and lands which are connected by means of communication pipes with any municipal water works or which are situated in any portion of the city in which the Corporation after public notice has arranged to supply water, in sufficient quantity to meet the reasonable demand of the occupier of the building. These are the only two sections of the Act which provides that certain taxes can be levied only after something is undertaken or done by the Corporation. With regard to no other tax any condition, such as contained in section 99 or 100, is laid down by the Act. It would, therefore, appear that as far as the levy of show tax is concerned no particular duty is required to be fulfilled by the Corporation before such a tax is levied so long the plaintiff’s cinema was within the limits of the city of Karachi and he was holding the show therein. It may be stated that the Nazimabad and other adjacent area was developed by the Central Government after it bad resumed the land from the Municipal Corporation and during the period preceding that of 13th October 1958 when a notice under section 99 was issued, the defendant Corporation was admittedly not performing its main functions and the duties, such as scavanging, conservancy, etc. There was some dispute about certain other functions, such as registration of birth and death, public vaccination, prevention and checking of diseases which it was claimed at the hearing on behalf of the Corporation that it was being performed by it at the material time, which claim was disputed. The pleadings however, in this regard were not very helpful in answer to the allegations in the plaint there was a general kind of denial in the written statement. We, however, do not think that this aspect of the ease has any decisive hearing upon the main question’ which we are considering namely whether in the absence of performing of certain functions which are not covered by sections 99 and 100 of the Act, the Corporation was entitled to levy any tax such as a show tax. The view taken by the learned single Judge, as has been shown above, was that in so far as these functions wire not performed in chat particular area, the imposition of tax not for the purposes of the Act within the meaning of section 96. Considering the forceful arguments in the judgment with respect to the principles of taxation the view taken by the learned Judge appears to be very attractive. However, after very careful consideration, we regret, we have not been able to persuade ourselves to take the same view. It is nobody’s case that the Corporation was trying to collect this show tax for any private purpose. What was, however, urged was that the Corporation did not have the power to levy such a tax in so far as it was not in a position to perform its functions in that area in the way of providing amenities as laid down in section 34. This contention, however, righteous cannot be accepted as a legal proposition. The object of the Act is to make law relating to the municipal government of the city of Karachi. For that purpose the city of Karachi is an in divisible whole. If a certain tax is levied and collected from a certain area but is not expended on it, we are unable to hold that such a tax is not levied for the purposes of tee Act which is the municipal government of the pity of Karachi. It is, of course, right and just that no responsible body is expected to levy tax without performing it, duties. It is also right to expect that the distribution of benefits must be equitable in all the areas as far as possible. But if this is not done, can it be subjected to an injunction of the Court. It seems to us that that question is a political one and the remedy where such a situation arises would be by representation and agitation and by such other means as may be found necessary The people of a particular area may feel aggrieved that they are not receiving their due share or for that matter any share of the benefits of municipal government and on that ground they should not be made to pay any particular tax. But when such a situation arises and it has arisen in, the past the remedy has not been by action in a law Court. Other methods had been adopted with varying measures of success. As far as the Courts are concerned, the question which they have to answer is whether under the particular law the Taxing authority has the power to levy the tax? If the answer to this question is found in the affirmative it is difficult to tee how the Court can give a declara tion against the imposition of the tax. As far as the City of Karachi Municipal Act is concerned we have a pointed out that the levy of tax would still be for the purposes of the Act within the meaning of section 96 even though the purposes may not be fulfilled in a particular area. The only way in which the Corporation could lose its power to levy the tax in a particular area within the city of Karachi would be either by excluding that area from the city or when the power to levy a particular tax is taken away from it by some legislative measure. In this case, the fact that the Central Government was administrating certain functions in the area of Nazimabad by executive arrangement it cannot be said that the operation of the provisions of the City of Karachi Municipal Act were suspended in that area. This could only have been brought about by the change in the laws. Therefore, upon the finding that the area in question falls within the limits of the city of Karachi and the defendant corporation has the power in law to impose the show tax and that in that area itself there was no impediment to the levy of such a tax on the plaintiffs we are forced to the conclusion that the declaration and injunction sought by them could not be granted In view of this conclusion we allow the appeal with the result that the plaintiff’s suit shall stand dismissed. In the circum stances of the case we leave the parties to bear their own costs.

 

K. B. A.

 

Appeal accepted.

 

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