ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.D-1557 of 2012
_____________________________________________________________
Date Order with signature of Judge
1.For Katcha Peshi.
2.For hearing of CMA No.18468/2011.
3.For hearing of CMA No. 5906/2010.
Present:Mr. Justice Syed Hasan Azhar Rizvi.
Mr. Justice Muhammad Junaid Ghaffar.
Date of hearing: 18.02.2014
Mr. Ali Sher Habibani, Advocate for Petitioners.
Mr. Saifullah, Assistant Advocate General, Sindh.
_______________
SYED
HASAN AZHAR RIZVI, J:-
This petition under Article 199 of the Constitution of the Islamic
Republic of Pakistan with the following prayers:-
(a) to declare that the Respondents have no power and authority
to impose/levy/recover “Establishment Charges” from the petitioners;
(b) declare, that the petitioners are under no obligation to pay
“Establishment Charges” levied by the Respondents;
(c) hold,
Rule 305, Conditions nos.4(iii) and 60 of Part III of the Sindh Excise Manual
to be inapplicable to the petitioners, alternatively to declare the same to be
illegal, ultra virus, unconstitutional, malafide, void ab-initio and of no
legal effect;
(d) to
restrain the respondents their officers and agents, from taking any
adverse/coercive action or otherwise, with a view to recover unjustified,
illegal, unlawful “Establishment Charges” from the petitioners & further
restraining the said respondents from hampering or hindering the operation of
the petitioners excise bonded warehouses and licenses/permissions attached
thereto, in any manner;
(e) order refund of the “Establishment Charges” paid by the
petitioners right from the inception alongwith markup/interest;
(f) award costs and special costs;
(g) award any other relief deemed fit.”
2. We
have heard the learned counsel for the petitioners and learned Assistant
Advocate General, Sindh and perused the available material.
3. Mr.
Ali Sher Habibani, learned counsel for the petitioners contended that
“Establishment Charges” as well as its enhancement are completely illegal,
malafide, without jurisdiction, unconstitutional and void ab-initio as there is
no provisions in Sindh Octori Act to levy of the same. He further contended
that no services are being rendered to the petitioners, thus it will be the
duty of the respondents and not the petitioners to pay for the existence of the
excise staff. He made reference to Rule 305, General Condition No.60, Part III of the Sindh Excise Manual and argued that it does
not authorize imposition of such a levy unless and until the bounded warehouse
is in the vicinity of the distillery. He, however, contended that only one AETO
performs functions on all other warehouses also, that too, only periodically
and as such there is absolutely no justification for imposition of such
levy/establishment charges separately from each warehouse(s). He also urged
that against the impugned “Establishment Charges” the petitioner filed appeals,
review and representations but no decision in writing has been taken except
informed the petitioners that Suit No.775/2007 in respect of posting of staff
is pending in this Court and as such reconsidering the staff posted in any
bonded warehouse does not seem appropriate till matter is finalized by the
Court of law. He, therefore, submitted
that levy of such charges are in violation of Articles 25, 77 and 127 of the
Constitution.
4. On
the other hand, Mr. Saifullah , learned AAG Sindh
argued that premises of the petitioners were declared as private bonded warehouse(s)
under the provisions of Section 15(d) of the Sindh Abkari Act, 1878 and petitioners
were granted licenses by the competent authority subject to certain conditions
including to pay the Establishment Charges for the staff sanctioned for the
warehouse, which the petitioners have been regularly paying since the
declaration of their warehouses. Besides merit, learned AAG at the very outset
attacked the maintainability of the present petition by arguing that
contractual rights, commitments, undertakings and obligations have to be
enforced through Courts of ordinary jurisdiction, which should not be
interfered in writ jurisdiction. He submitted that since the petitioners have
been granted license/permission at their own request by the competent authority
subject to certain conditions, which were wholly agreed by the petitioners and
regularly complied with the same since declaration of their warehouses. He drew
our attention to Para (10) of the memo of petition and argued that the issue
voiced through the instant petition is already agitated in Suit No.775/2007
filed by the owners of some other private bonded warehouses, which is pending
before this Court. He also submitted that the license was issued to the
petitioner on 21.08.1989 and petitioner has not challenged any terms of the
same. He, therefore, prayed for dismissal of instant petition with cost. He
relied upon the case of PAKCOM LIMITED & OTHERS vs. FEDERATION OF PAKISTAN
& OTHERS (PLD 2011 SC 44).
5. We
have given due consideration to the arguments advanced by the learned counsel
for the parties and minutely examined the available record, which goes to show
that petitioners were granted licenses on certain conditions under Section
15(d) of the Sindh Abkari Act, 1878, which was not only agreed by the petitioner
but also regularly paying the “Establishment Charges” to the respondents since
declaration of their bonded warehouses. For ready reference, terms and
conditions of license granted to the petitioners are reproduced below:-
“1. To
pay Establishment charges for one Assistant Excise and Taxation Officer and two
Constables.
2. To store 2000
Bulk Gallons of rectified spirit at a time.
3. To
execute a security bond in the sum of Rs.2,00,000/-
for the import of rectified spirit from the distilleries.
4. To
execute a security bond in the sum of Rs.50,000/- for
the proper use of rectified spirit.
5. To
furnish cash security/Bank Guarantee in the sum of Rs.25,000/-
for the safeguard of Government Revenue.
6. To
execute a security bond in the sum of Rs.10,000/- for
the denaturation of rectified spirit licence.
7. To
execute a security bond in the sum of Rs.5,000/- for
the proper use of specially denatured spirit.
8. To
denature and use 2000 Bulk Gallons of specially denatured spirit per month.
9. To
pay Rs.2,500/- per annum as fee for the privilege of
using rectified spirit in the manufacture of spirituous Medicinal preparations.
10. to pay Rs.2,500/- per annum as fee for grant of denaturation
of rectified spirit licence.
11. To
pay Rs.200/- per annum as fee for the use of specially denatured spirit.
12. To
pay Excise duty on spirituous medicinal preparations at the prevailing rate.
13. To
provide office accommodation for the Excise Staff.”
6. It
is settled principle of law that where a contractual rights, commitments,
undertakings and obligations are involved have to be enforced through Courts of
ordinary jurisdiction and should not be interfered with by the Court while
exercising its constitutional jurisdiction especially in those matters arising
out of a contractual obligation and the remedy in like eventualities being a
suit for enforcement of contractual rights and obligation would be availed
instead of invocation of writ jurisdiction merely for the purpose of enforcing
contractual obligations. Moreover, the same issue of posting of staff and levy
of establishment charges is under trial before this Court in Suit No.775/2007.
In
view of above, we find no substance in this petition and it was dismissed by
short order dated 18.02.2014 and above are the reasons for the same.
JUDGE
JUDGE
Dated:04.03.2014.