Const. Petition No.D-3585 of 2012
Present
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar.
Muhammad Rasheed & another………………………………………Petitioners
Versus
Government of Sindh & others ……………………………...…….Respondents
Date of hearing 03.10.2013
Date of order 03.10.2013
Mr. Malik Khushhal Khan, advocate for the petitioners alongwith
the petitioners
Mr. S. Sultan Ahmed, advocate for the respondent No.2 alongwith Dr. Zafar Zaidi, Senior Director, Veterinary, KMC, Karachi and Imran Aslam Khan, Administrator, DMC, Karachi West.
Mr. Abdul Hadi, advocate for respondent No.3
Mr. Khalid Mehmood Siddiqui, advocate for respondents No.4 & 5
Mr. Hassan Khursheed Hashmi, advocate for respondent No.8.
Mr. Ch. Muhammad Rafiq Rajuorvi, AAG.
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Aqeel Ahmed Abbasi, J : Through instant petition following relief (s) has been sought by the petitioners:
(a) Declare that the act of the respondent No.4 & 5 demanding, collecting, receiving the entry fees etc. in collusion with respondents 2 & 3 from the Petitioners/Lessees and office bearers of Maveshi Mandi situated at Sector 21, New Bakra Piri, Baldia Town, Karachi is illegal, unlawful and against the law as well as in violation of the Advertisement published by Respondent No.2 in the leading newspapers of the country.
(b) Restrain the Respondent No.4 & 5 or any person acting on their behalf from collecting, receiving the entry fees etc. in connection with the Maveshi Mandi situated at Sector 21, New Bakra Piri, Baldia Town, Karachi.
(c) Grant such other/better relief which this Hon’ble Court may deem fit and proper under the circumstances of the case.
2. Brief facts as stated in the petition are that the Petitioner No.1 is the lessee/owner of a leased plot No.42, Sector-21, New Bakra Piri, Baldia Town, Karachi, whereas Petitioner No.2 is the General Secretary of Gulshan-e-Tajran-Wa-Malkan Maveshi Mandi Association, who are carrying out their business of selling and purchasing cattles in the Bakra Piri at Baldia Town, Karachi.
3. Petitioners felt aggrieved by an act of respondents No.4 and 5, who according to petitioners, demanded entry fee from the petitioners on the cattles brought in Maveshi Mandi, situated at New Bakra Piri, Baldia Town, Karachi, in violation of an advertisement published by respondent No.2 in the newspaper whereby, according to the petitioners, all taxes/fee on the cattles were condoned/abolished. Petitioners further allege that such fee was being collected by respondents No.4 and 5 in collusion with respondents No.2 and 3 from the petitioners, who are the lessee of the plot situated in Maveshi Mandi at Sector-21, New Bakra Piri, Baldia Town, Karachi, which is the private property of the petitioners, hence, according to petitioners, no such fee could be collected lawfully by the respondents. It has been further alleged that the fee is being collected without any lawful authority vested in the respondents as official respondents cannot imposed such fee under law.
4. Notices were issued pursuant to which respondents filed their objections and denied the allegations as contained in the petition. On 11.10.2012 when instant petition was fixed for hearing, a Division Bench of this Court allowed the respondent No.5 to continue to collect taxes/fee which is subject matter of the instant petition, however, with the directions to maintain the proper account of all receipts in this regard, which was to be submitted in Court on the next date. On 17.5.2013, the petitioners with the permission of the Court filed amended title by impleading Administrator, DMC, District (West) Karachi, as respondent No.3 in place of TMA, Baldia Town, Karachi Municipal Administrator, Karachi. Thereafter, the matter was fixed in Court from time to time, however, on 20.05.2013 counsel for the petitioners pointed out that the directions of this Court relating to submission of statement of accounts are not being complied with and on 31.5.2013 by the order of this Court the respondent No.4 and 5 were restrained from collecting the impugned fee. On 31.7.2013 and 19.9.2013, the petitioners filed two contempt applications i.e. CMA No.21453/2013 and CMA No.25077/2013, wherein it was stated that the alleged contemnors, in violation of the restraining order passed by this Court on 31.5.2013, are collecting the entry fee. Notices were issued to the alleged contemnors, which were duly responded by the alleged contemnors, including Muhammad Hanif Shaikh, Town Municipal Administrator, Baldia Town, Karachi, who denied all the allegations and submitted that none of the alleged contemnors has violated the order of this Court and no fee was collected from petitioners by the alleged contemnors i.e. official respondents after the restraining orders passed by this Court on 31.5.2013. An application under Order 1 Rule 10 CPC was also filed by the petitioners to implead M/s Shahbaz Enterprises as respondent, who according to petitioners, was awarded a contract for the period 2013-2014 during pendency of this petition and was collecting fee from the petitioners. Such application was allowed and M/s Shahbaz Enterprises was impleaded as respondent No.8 in the instant petition vide order dated 11.9.2013 on which date notices on application were directed to be issued only to respondent No.2 and 3 and the Division Bench of this Court was pleased to observe that no notice on CMA No.21452/2013 be issued to other alleged contemnors without permission of this Court. The interim order passed earlier was extended, whereas, petitioners were directed to file amended title. On 23.9.2013, when this petition was taken up for hearing alongwith C.P.D-No.3737/2013 filed by M/s Shahbaz Enterprises against the official respondents and the petitioners in the instant petition, it was alleged that the petitioners i.e. M/s Shahbaz Enterprises after having been awarded a contract by the District Municipal Corporation (West) Karachi to collect fee in respect of the cattles, the petitioners are not being allowed by the respondents to collect such fee. Learned Division Bench of this Court, keeping in view the similar nature of both the petitions, was pleased to observe that both these petitions may be taken up for hearing together for final disposal of both the petitions at Katcha Peshi stage on 26.9.2013 and with further direction that both the matters may be placed before the learned Division Bench, who passed the order on 21.9.2013 in C.P. No.D-3737 of 2013.
5. Accordingly, on 26.9.2013 instant petition was fixed before this bench alongwith C.P.No.D-3737 of 2013 when the counsel for the petitioner was not in attendance and adjournment was sought
on his behalf, whereas counsel for the petitioner in C.P.No.D-3737
of 2013 submitted that in the garb of stay, which according to learned counsel was obtained by the petitioner in the instant petition by mis-representation of facts and even without impleading his client as a party, the respondents are restraining his client from collecting tax/fee pursuant to a fresh contract awarded by ZMC (West) for the year 2013-2014. It was further stated by the learned counsel that the contract which was the subject matter in C.P.No.D-3585 of 2012 has already expired on 30th June 2013, hence instant petition, otherwise, has become infructuous. However, since the counsel for the petitioner was not in attendance, the matter was adjourned to 01.10.2013 when both the cases were adjourned, to be taken up on 03.10.2013, whereas representatives of the official respondents were directed to be in attendance to assist this Court on the subject controversy.
6. Today, i.e. 3.10.2013 when both the cases are taken up for hearing, learned counsel for the petitioners has reiterated the facts as stated in the petition and submitted that the fee is being collected by the respondents without any lawful authority. It has been stated by the learned counsel that the impugned entry fee in respect of the cattles, which are being sold in the Maveshi Mandi, situated at Sector 21, New Bakra Piri, Baldia Town, Karachi, cannot be levied or collected from the petitioners, who are the lessees of the plots situated in the Maveshi Mandi and have been authorized to carry on the business of selling cattles in terms of the lease agreement. Per learned counsel, the respondents are already collecting entry fee in respect of the cattles, which enter in the City at Toll Plaza, therefore, collection of this fee amounts to double taxation. Per learned counsel, during pendency of this petition, the official respondents have awarded a fresh contract to their own employees in violation of SPPRA Rules, 2001, hence the contractors, who are collecting this fee, may be restrained from collecting such fee from petitioners and the contract awarded by the official respondents respondent No.8 may also be declared as null and void. It has been contended by the learned counsel that the contempt proceedings may be initiated against the alleged contemnors, who according to learned counsel, violated the orders passed by this Court and have collected fee from the petitioners, whereas the official respondents had awarded a fresh contract to another contractor for the period 2013-2014 in order to circumvent the restraining orders passed in the instant petition.
7. Conversely, learned counsel for newly added respondent No.8 has vehemently controverted the submissions made by the learned counsel for the petitioners and submitted that the petitioners did not approach this Court with clean hands as the entire facts were not disclosed. Per learned counsel, pursuant to Gazette Notification dated 25.7.2012 issued by Administrator, DMC (West) Karachi, under Rule 7 of Sindh Local Government Imposition of Taxation Rules, 2001 the Schedule of Taxes was issued in respect of Cattles including Cow, Buffalo, Bachia, Camel, Goat etc, which provided for the subject levy on cattles as detailed therein, therefore, the contention of the counsel for the petitioner that the tax/fee being charged by the respondents is without lawful authority, is incorrect in fact and law both. It is further contended by the learned counsel that pursuant to advertisement issued by the Town Municipal Officer, Baldia Town in the newspapers for the Award of Contract through open auction for collection of entry fee in respect of cattles brought within the jurisdiction of Baldia Town at Bakra Piri, situated at Hub River Road, Yousuf Goth, the petitioner was declared as successful bidder amongst large number of bidders, who participated in the open auction, whereas all codal formalities and the SPPRA Rules 2001,were complied with in this regard. Per learned counsel, the respondents have paid the entire requisite amount in addition to earnest money and has already invested huge amount pursuant to award of contract. However, per learned counsel, on account of pendency of the instant petition, the official respondents and the petitioners are resisting collection of the fee which has already caused substantial financial loss to the respondents. It has been contended that the respondent No.8 was not aware of the pendency of the instant petition nor about the restraining orders passed in the instant petition as they were not a party in the instant petition and were subsequently impleaded as a party, however, before the respondents could be served in the instant petition, he has already filed a separate petition i.e. C.P. No.D-3737 of 2013 with the prayer to declare that pursuant to a valid contract executed between his client and the official respondents the respondent No.8 is entitled to recover the fee for the period starting from 1st July 2013 to 30th June 2014 and to restrain the official respondents from creating any hindrance in this regard. Per learned counsel, the petitioners in the instant petition deliberately did not disclose about the Gazette Notification issued by Administrator, DMC (West) Baldia Division, Karachi and attempted to mis-lead this Court and also obtained restraining orders by mis-representation of facts. It has been further contended that even otherwise the contract awarded by the official respondents to respondents No.4 and 5 was the subject matter of the instant petition has already expired on 30th June 2013, therefore, instant petition has otherwise become infructuous, which may be dismissed with cost.
8. Similarly, learned counsel for KMC and DMC in their comments have denied the allegations as contained in the petition as well as in the contempt applications filed by the petitioners and submitted that the petitioners did not approach this Court with clean hands and deliberately did not disclose about the Gazette Notification dated 25.7.2012, which was issued by Administrator, DMC (West) Balida Division, Karachi under Rule 7 of Sindh Government Imposition of Taxation Rules 2001, whereby tax/fee has been levied on the entry of cattles in the Bakra Pirii, situated within the jurisdiction of DMC (West) Baldia Division Karachi. Learned counsel for KMC has further stated that reference by the petitioners to the amount which is collected on the cattles entered within the jurisdiction of Karachi at Toll Plaza is misconceived as the same is being collected towards health fee and license fee on the entry of cattles by the KMC, whereas the subject fee is being collected by District Municipal Corporation (West), Baldia Town, Karachi, against services provided by them. Learned counsel for DMC (West) has contended that entry fee in respect of cattle is being charged strictly in accordance with law and pursuant to a Gazette Notification dated 25.7.2012 as referred to hereinabove, whereas DMC (West) in turn provides multiple services to the petitioners at Maveshi Mandi, Baldia Town, including electricity, clearance of garbage, security and water supply etc. It has been contended by the learned counsel that earlier also, for the period of 2012-2013, the contract was awarded to respondent No.4 after having complied with all the codal formalities and by following the SPPRA Rules, 2001, whereas for the current year 2013-2014, the said contract has been awarded to respondent No.8 i.e. M/s Shehbaz Enterprises after compliance of all legal formalities in this regard. It has been contended that the petitioners have approach this Court with unclean hands, whereas the material facts have been concealed and by misrepresentation of facts some restraining order was obtained by the petitioner in respect of previous contract, the petitioners did not pay the fee in respect of cattles and in the garb of such order, sold in the Maveshi Mandi, New Bakra Piri, Baldia Town, Karachi, even for the contract of current year i.e. 2013-2014. It has been contended by the learned counsel that instant petition may be dismissed with heavy cost upon the petitioners who did not disclose the true facts and even withheld the Gazette Notification issued by the respondent i.e. DMC (West) in this regard.
9. Mr. Khalid Mehmood Siddiqui, learned counsel for respondents No.4 and 5 in the instant petition has also supported the contention of the learned counsel for the other respondents and submitted that the respondents were entitled to collect fee pursuant to a valid contract awarded by the official respondents, whereas, the petitioners, inspite of their best efforts could not persuade the leaned Division Bench of this Court to either grant stay in respect of collection of such fee or to declare the same as illegal and without lawful authority. However, per learned counsel, by misrepresentation of facts and just before expiry of the period of contract which was valid upto 30th June 2013 in respect of respondent No.4 and 5, the petitioners obtained restraining order. Per learned counsel, after the restraining orders passed by a Division Bench of this Court on 31.5.2013, the respondents did not collect any fee from the petitioners. It has been further contended by the learned counsel that as far as the grounds and the relief sought by the petitioners is concerned, this petition, besides being misconceived in law and facts, has otherwise become infructuous, particularly when the petitioners have also filed a fresh petition i.e. C.P. No.D-3981 of 2013, wherein, the petitioners have now specifically challenged the subject levy and the contract awarded by the official respondents for collection of the fee in respect of the cattles. It has been contended that instant petition may be dismissed with cost.
10. We have heard all the learned counsel for respective parties and perused the record. From perusal of the contents of the memo of petition and the relief (s) sought by the petitioners in the instant case, it appears that neither the Gazette Notification dated 25.7.2012 issued by Administrator, DMC (West) Balida Division Karachi, pursuant to Rule 7 of Sindh Local Government Imposition of Taxation Rules 2001, whereby tax/fee imposed on cattles, was placed on record by the petitioner nor the contract awarded by the official respondents to private respondent (s) for the recovery of the impugned tax/fee has been made subject matter of the instant petition. The objection of the petitioners with regard to collection of the fee in respect of cattles by the respondents at Maveshi Mandi New Bakra Piri, Baldia Town Karachi from the petitioners was primarily based on a Newspaper clipping published in daily Ummat Karachi Hyderabad available at page 35 of the instant petition, whereby, the then KMC was pleased to exempt the collection of fee towards health certificate and broker’s license fee for sale and purchase of cattles and other taxes in respect of cattles which were brought within the jurisdiction of Karachi Municipality on the occasion of Eid-ul-Azha with effect from 28th September 2012 to 10th Zil Hajj, 1433 Hijri (26th October 2012) only. We have noted that no Gazette Notification with regard to such relaxation or exemption of the aforesaid fee and taxes has been placed on record by either party, however, if the same advertisement is taken to be issued under lawful authority, even then the said relaxation or exemption from collection of tax/fee on cattles was for a period of one month only, and that too, by the KMC and not by DMC. Whereas, in the instant case, it has come on record that fee in respect of the cattles has been levied and being collected pursuant to a Gazette Notification which has been placed on record by respondent No.8, which prima-facie authorise DMC (West) Baldia Division Karachi to impose such tax/fee upon cattles. We have observed that in the instant petition, the Gazette Notification, which has been placed before this Court during course of hearing by the newly impleaded respondent No.8 and was not even filed by the petitioners has not been impugned by the petitioners, nor the validity of the contract or the proceedings, whereby such contract was awarded by the DMC (West) to respondent No.4 and 5 for the period of July 2012 to June 2013 for collection of fee in respect of the cattles, has been challenged by the petitioners. Therefore, the objection raised and the submissions made by the learned counsel for the petitioners in this regard at a subsequent stage, without placing such Gazette Notification or the contract on record and without confronting the respondents from such documents, are without any force and of no relevance in the instant proceedings. Learned counsel for the petitioners has candidly informed this Court that the petitioners have already filed a fresh Const. Petition No.D-3981 of 2013, wherein the very imposition of the subject levy and the award of contract by the DMC (West) to the private respondents in this regard has been challenged. In view of hereinabove, we do not find any substance in the instant petition, which otherwise has become infructuous, and the same was accordingly dismissed alongwith listed applications vide our short order dated 03.10.2013, and these are the reasons for such short order. However, before parting with this order we may observe that the petitioner is at liberty to raise all such objections with regard to the validity of the subject levy or the award of contract by the official respondents for the collection of the subject levy/fee in respect of cattles in his C.P.No.D-3981 of 2013 which may be decided on its own merits in accordance with law.
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