TANVEER SPINNING AND WEAVING MILLS VS GOVENRMENT OF PUNJAB
2011 PTD 1090
[Lahore High Court]
Before Ch. Muhammad Tariq and Syed Akhlaq Ahmad, JJ
TANVEER SPINNING AND WEAVING MILLS and others
Versus
GOVENRMENT OF PUNJAB and others
Writ Petition No. 19640 of 2010, I.C.As. Nos.350, 289, 316, 310, 290, 291, 292, 293, 298, 299; 301, 302, 311, 303, 309, 322; 320, 449, 304, 305, 315, 341 to 345, 300, 306 of 2005, 191, 96, 97 and 98 of 2006, Writ Petitions Nos.7940 of 20D7, 17492, 17493, 19549, 18777, 18778, 19548, 19300, 19301, 21378, 17491, 15425 and 20677 of 2010, heard on 13th January, 2011.
(a) Good governance--- ----Evils of society---Reasons---Energy shortfall, dearness, terrorism, unemployment and street crimes have made the whole nation embarrassed and short tempered---Heavy energy shortfall is contributing a lot towards most of the evils of the society such as terrorism, street crime etc.
(b) West Pakistan Finance Act (XXXIV of 1964)---
----S.13---Punjab Finance Ordinance (VI of 2001), S. 4---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1977), S.2(xi)---Electricity Act (IX of 1910), S.22---Constitution of Pakistan, Art.157, Federal Legislative List, Part-1, Entry 44---Law Reforms Ordinance (XII of 1972), S.3---Intro-Court appeal---Private generation of electricity---Duty, levy of---Scope---Provincial Government issued a notification, whereby electricity duty on generation of electricity from generators of capacity more than 500 KW was levied---Validity---Government could levy tax provided Water And Power Development Authority and other licensees had been providing adequate energy to domestic and industrial consumers according to their satisfaction as well as according to terms and conditions executed between consumer and licensee at the time of installation of electricity connection; in such circumstances if anyone would generate energy, government had every right to impose tax thereon---When Water And Power Development Authority and other licensees badly failed to supply electricity to consumers, production of energy through private generators was not only a great help to the nation but it was also a positive step towards saving of thousands of families from starvation because close of one unit of industry meant to turn a number of employed persons jobless---Government was expected to extend incentives to the persons who were generating energy instead of levying tax thereupon and creating hurdles in the way of investment and prospective employment in such way---Levy of electricity duty on private generators was condemnable in such prevailing circumstances---Provincial Government was not just to levy tax on production of energy by individuals through private generators till the time Water And Power Development Authority and its licensees would provide electricity to individuals and industry according to their requirements---High Court set aside the judgment passed by Single Judge of High Court and operation of notification in question was held in abeyance till the time Water And Power Development Authority would provide sufficient energy to its consumers according to their requirements---Intro-Court Appeal was allowed in circumstances.
PLD 2005 Lah. 596; PLD 1966 SC 684, PLD 1999 CLC 66(sic), 2005 MLD 1165; 2008 CLD 239; AIR 1988 SC 1737; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; PLD 2003 Lah. 531; PLD 1997 SC 582 and Kitab-ul-Ikhtiar ref.
PLD 2008 SC 591 distinguished.
(c) West Pakistan Finance Act (XXXIV of 1964)---
----S.13 & Fifth Sched.---Punjab Finance Ordinance (VI of 2001), S.4---Private generation of electricity---Duty, levy of---Charitable trust---.Effect---Provincial Government imposed duty on private generation of electricity from generators of more than 500 KW capacity---Validity---Appellant was a charitable institution, thus it. did not fall within the ambit of Fifth Schedule to West Pakistan Finance Act, 1964---Appellant was not liable to pay electricity duty as imposed through notification in question.
Messrs Imtiaz Rashid Siddiqui Barrister, Muhammad Ahmad Pansota, Wasif Majeed, (Vice Counsel) Ijaz Ahmad Awan and Komal Malik Awan for Appellants/Petitioners.
Aurangzeb Mirza for Respondents.
Shakeel-ur-Rehman Additional Advocate General, Punjab for the State.
Date of hearing: 13th January, 2011.
JUDGMENT
CH. MUHAMMAD TARIQ, J.---This consolidated judgment shall dispose of I.C.A. No.350 of 2005, T.C.A. No.289 of 2005, I.C.A. No.316/2005, I.C.A. No.310/2005, I.C.A. No.290 of 2005, I.C.A. No.291 of 2005, I.C.A. No.292 of 2005, I.C.A. No.293 of 2005, I.C.A. No.298 of 2005, I.C.A. No.299 of 2005, I.C.A. No. 301 of 2005, I.C.A. No.302 of 2005, I.C.A. No.311 of 2005, I.C.A. No.303 of 2005, I.C.A. No.309 of 2005, I.C.A. No.322 of 2005, I.C.A. No.320 of 2005, I.C.A. No.449 of 2005, I.C.A. No.191 of 2006, Writ Petition No.7940 of 2007, I.C.A. No.304 of 2005, I.C.A. No.305 of 2005, I.C.A. No.315 of 2005, I.C.A. No.341 of 2005, I.C.A. No.342 of 2005, I.C.A. No.343 of 2005, I.C.A. No.344 of 2005, I.C.A. No.345 of 2005, I.C.A. No.96 of 2006, I.C.A. No.97 of 2006, I.C.A. No.98 of 2006, I.C.A. No.300 of 2005, ICA No.306 of 2005, Writ Petition No.17492 of 2010, Writ Petition No.17493 of 2010, Writ Petition No.19549 of 2010, Writ Petition No.18777 of 2010, Writ Petition No,18778 of 2010, Writ Petition No.19548 of 2010, Writ Petition No.19300 of 2010, Writ Petition No.19301 of 2010, Writ Petition No.21378 2010, Writ Petition No.17491 of 2010, Writ Petition No.20677 of 2010, Writ Petition No.15425 of 2010 and Writ Petition No.19640 of 2010 as common questions of facts and law are involved therein.
2. The original writ petitions of I.C.As. filed by the appellants contained prayer as given below:--
Writ Petitions Nos. 10525 of 2003, 381 of 2004, 3425 of 2003, 14672 of 2003, 3377 of 2004, 382 of 2004, 383 of 2004, 5293 of 2005, 5518 of 2005, 5533 of 2002, 17540 of 2002, 5043 of 2003, 7287 of 2002, 986 of 2005, 6475 of 2005, 15175 of 2004, 5568 of 2006, 7940 of 2007, 4514 of 2002, 6147 of 2002
Prayer: In view of the above facts and circumstances, it is most respectfully prayed that this Hon'ble Court may be pleased to:--
(i)Declare that no electricity duty whatsoever is payable by the petitioner-company with respect to the electric power generated and utilized by it for the purpose of self-consumption;
(ii)Declare that no electricity duty is payable by the petitioner company with respect to the line losses entailed in the transmission of electric power;
(iii)Permanently restrain the respondents from making demand for the payment of electricity duty with respect to electric power that is generated and utilized by the petitioner-company for self-consumption and also electric power that is lost as line losses;
(iv)Direct the respondents to refund the amounts already deposited by the petitioner-company by way of electricity duty;
(v)Declare the demand raised by the respondent No.3 vide respective notices for payment of electricity duty to be illegal and without lawful authority;
(vi)Restrain the respondents, during the pendency of the instant petition, from demanding or taking any steps for the recovery of electricity duty from the petitioner-company with respect to electric power generated and utilized by the petitioner-company for self-consumption as well as electric power lost as line losses;
(vii)It is further prayed that the respondents be restrained from taking any coercive measures against the petitioner-company pursuant to the above-mentioned impugned demand notices for recovery of the impugned amounts.
(viii)Any other relief which this Hon'ble Court deems fit may also kindly be granted.
3. Writ Petitions mentioned hereinabove have been filed with the following prayers:--
Writ Petitions Nos. 4514 of 2002 6147 of 2002, 3763 of 2002, 3766 of 2002, 3762 of 2005, 3764 of 2002, 3767 of 2002, 3761 of 2002, 4946 of 2002 and 3765 of 2002
Prayer:- It is, therefore, respectfully prayed that this constitutional petition may kindly be accepted with costs and the amendment made and incorporated vide section 4 of the Punjab Finance Ordinance, 2002, to the extent of including any person generating the electric power from a generator having the capacity of more than Five Hundred Kilo Watts for Self Use within the purview of the definition of licensee be declared as ab initio void, unconstitutional, mala fide, inoperative without jurisdiction, un-Islamic, opposed to law and be struck off and the aforesaid illegal amendment, be also declared illegal and of no legal effect and notification dated 25-8-2001 be quashed and set aside.
It is further prayed that meanwhile no coercive measures be adopted against the petitioner for the recovery of the aforesaid electricity duty and the operation of the notification dated 25-8-2001 may kindly be suspended/held in abeyance. It is further prayed that the notice and challan dated 4-2-2002, increasing the rate of electricity with retrospective effect; may also be struck down being illegal.
Any other relief/interim reliefas deem appropriate and proper in the interest of justice and circumstances of the case, be also allowed and granted to the petitioner.
Writ Petitions Nos.8845 of 2005, 4110 of 2005, 9057 of 2005, 2356 of 2004.
Prayer:-- In view of the above, it is respectfully submitted as under:
(1)to declare that no electricity duty whatsoever is payable by the petitioner-company in respect of the electric power generated by it.
(2)to declare that no electricity duty whatsoever is payable by the petitioner-company inrespect ofthe electricpower utilized by it;
(3)permanently restrain the respondents from making the demand for the payment of electricity duty with respect to electric power generated by the company also with respect- to auxiliary consumption or line losses;
(4)to declare the retrospective demand of electricity duty as well as the same on enhanced rates of electricity by the respondents while relying on the increase of tariffs as illegal and void ab initio;
(5)to direct the respondents to refund the entire amount of electricity duty so far collected from the petitioner.
(6)Costs of the petition including special costs under section 35-A, C.P.C. may also be kindly granted to the petitioner.
(7)Any other relief deemed appropriate in the peculiar circumstances of the case may also be afforded to the petitioner.
Writ Petitions No. 17492 of 2010, 17493 of 2010, 19549 of 2010, 18777 of 2010, 18778 of 2010, 19548 of 2010, 19300 of 2010 19301 of 2010, 21378 of 2010, 17491 of 2010; 20677 of 2010 and 19640 of 2010
Prayer: In view of the above, it is respectfully prayed as under:
(i)The demand of electricity duty being made from the petitioners may very kindly be set aside on the ground that the petitioner does not fall within the charging provision of the Finance Act, 1964 as amended upto date and as such no duty is to be paid by him on the in-house self-generation of electric power by him;
(ii)The respondents be permanently restrained from demanding or attempting to recover electricity duty for any period after the effective demise of section 25 of the WAPDA Act, 1958. The respondents may also be directed to refund all the amounts unlawfully recovered from the petitioner over the period of time;
(iii)Notification dated 25-8-2001 may very kindly be declared to be without lawful authority and be set aside being ultra vires the law and the Constitution.
(iv)Any other relief deemed appropriate in the peculiar circumstances of the case may also be very kindly afforded to the petitioner.
Writ Petition No. 21602 of 2001
Prayer:-- It is, therefore, respectfully prayed that this learned court be pleased to declare section 4 of the Punjab Finance Ordinance, 2001 to the extent of including "any person generating the electric power from a generator having the capacity of more than five hundred Kilowatt for self-use" within the definition of licensee a void law liable to be struck off and the petitioner who generates electric power solely for self-consumption not including in the definition of "licensee" and not liable to the levy of electricity duty.
It is further prayed that this learned Court be pleased to order status quo pending disposal of this writ petition, restraining the respondents from using coercive measures for recovery of electricity duty meanwhile.
Writ Petition No.15425 of-2010.
Prayer:--In view of the above, it is humbly prayed that this honourable Court may, graciously be pleased to declare and direct that the threatened demand of electricity duty as well as the notices of 25-1-2010 and 17-3-2010 are bad in law; the same may graciously be struck dawn being ultra vires.
It is further prayed that electricity duty, if at all, is payable then the same has to be calculated under the provisions of the Punjab Finance Act 1964 and not otherwise.
It is further prayed that during the pendency of titled petition the operation of impugned notices may graciously be suspended.
Any other better relief deemed appropriate by this honourable court may also be granted.
4. Learned Single Judge in chamber dismissed the original writ petitions of I.C.As. vide judgments/orders dated 10-6-2005, 6-7-2005 and 1-6-2006. Hence these I.C.As. While other writ petitions have been filed against the same notification dated 25-8-2001 against which the writ petitions of I.C.As. were filed.
5. Learned counsel for the appellants/petitioners inter alia contend that the impugned notification dated 25-8-2001, whereby electricity duty on generation of electricity from a generator of capacity of more than 500 KW w.e.f. 1-7-2001 has been levied, is patently ultra vires the West Pakistan Finance Act, 1964 which expressly levies duty on energy consumed and not on energy generated. Learned counsel further contended that the relationship between the appellants/petitioners and the respondents is not of licensee and the consumer and the person/company who is producing electricity through generators cannot be levied electricity duty as provided under section 13(2) read with section 13(3) of West Pakistan Finance Act, 1964. Further contend that under sections 13(1) and 13(2) of the Act ibid, duty is payable only on the energy which is yielding revenues and no duty can be imposed on the energy lost during the course of transmission or generation or energy produced for self-consumption. Learned counsel further argue that the impugned notification is also ultra vires the Electricity Duty Act, 1964.
6. Learned counsel for the appellants/petitioners assert that Article 157 of the Constitution, clearly provides that the person viz. the Government, Federal Government or the Provincial Government have the right to impose tariff on the supply and consumption of electric energy. However, the said Article does not include a private person generating and consuming the electric energy, which means that no limitation has been imposed on any person who generates energy from his own sources.
7. Learned counsel for the appellants/petitioners also contend that the taxes or duties are levied on the products and, not on the industrial process, as such, the impugned notification is in contravention of the fundamental rights provided in Article 18 of the Constitution and will circumvent the freedom of trade, business or profession. They aver that the observation of learned Single Judge that the impugned notification is intra vires has no backing of law.
8. Learned counsel for the appellants/petitioners further argue that the impugned notification purports to have been issued under section 4 of the Punjab Finance Ordinance, 2001, however, bare perusal of section 4 of said Ordinance makes it crystal clear that section 4 simply substitutes the definition of the word "Licensee" and it, in no way, grants any power to issue such notification. It has further been contended that as per entry 44 of Part-1 of the Federal Legislative List, duty of excise can only be levied and recovered by the Federation and not by the province, so the impugned notification dated 25-8-2001 is also against the provisions of the Constitution of Islamic Republic of Pakistan, 1973. It has also been contended that the provincial legislation and the impugned notification also offend the provisions of section 2(xi) of the Regulation of Generation, Transmission and Distribution of Electric Power, 1997 Act (Act XL of 1997) which being Central statute applies to whole of Pakistan and will override the provincial legislation as well as notifications/orders. Learned counsel for the appellants/petitioners further contend that the exemption notification dated 30-12-1985 that enables the provincial government to exempt any class of consumers from the payment of electricity duty has not been withdrawn by the impugned or any other notification, so the exemption remains in field. It has also been argued that the demand made by the Electric Inspector through respective notices is also unlawful, illegal and without lawful authority and the remedy with Electric Inspector cannot serve any real purpose as legal issues of leviability cannot be decided by the Electric Inspector.
9. In addition to above contentions by learned counsel for the appellants/petitioners, learned counsel appearing on behalf of Shaukat Khanam Memorial Hospital has emphasized more that Shaukat Khanam Memorial Hospital is a charitable institution and does not fall in any of the categories provided under the Schedule for the levy of the tax/duty.
10. Learned counsel for the appellants/petitioners aver that the above said facts were not considered by the learned Single Judge while passing the impugned judgments/orders, therefore, the instant I.C.As/ Writ petitions be allowed, the impugned orders be set aside and the impugned notifications/notices be declared illegal and without lawful authority.
11. On the contrary, learned Additional Advocate General Punjab instructed by learned: counsel for the respondents have vehemently opposed these I.C.As/Writ Petitions on the grounds that the purpose of levying the electricity duty is the same as the levy of any other taxes, duties etc., and the revenue generated therefrom is used for public spending in order to run the affairs of the. State and for public purposes, e.g. to carry out development projects and other welfare plans. They further argue that it is an admitted fact that the appellants/petitioners have been paying the electricity duty when the relevant provisions became applicable to them. The appellants/petitioners are estopped to filethe instant appeals/writ petitions due to their own conduct as they have been submitting the monthly returns of units/energy generated and consumed at their premises and depositing the electricity duty since 2001 as and when they fell within the mischief of the said law without any protest/reservation. The impugned judgment has dealt with the matter indetail and there is no substance in the instant petitions. The issue of levyand payment of electricity duty has already been decided in favour of thegovernment of the Punjab by this court in Writ Petition No^3761 of 2002 and other 47 connected writ petitions on 10-6-2005, reported as PLD 2005 Lahore 596. They aver that the instant petitions have been filed without proper authorization and hence the same are not maintainable in view of the decision of this Court. As evident from order sheet dated 26-5-2010 of this Court, this issue was earlier raised but none of the learned counsel replied to the objection nor did anyone produce any document(s) to show that these petitions have been filed by competent persons. Even otherwise, the appellants/petitioners cannot be allowed totill in the lacuna at this stage. Hence, these I.C.As/Writ Petitions are not proceedable and are liable to be dismissed on this score alone. In this context, learned counsel for the respondents have reliedin PLD 1966 SC 684, PLD 1999 CLC 66(sic), 2005 MLD 1165 and 2008 CLD 239.
12. Learned counsel for the respondents while relying on Article 157 of the Constitution of Islamic Republic of Pakistan, 1973have contended that the government has all the authority to levy tax on the generation of energy. The petitioners/appellants are coveredunder the relevant law and are liable to pay the tax imposed upon them. In support of their contentions, they have placed reliance on AIR 1988 SC 1737, 1997 SCMR 641, PLD 2003 Lahore 531 and PLD 1397 SC 582. Therefore, the I.C.As./Writ Petitions in hand are liable to be dismissed.
13. Arguments advanced from all corners have been heard and the record to the extent available on filehas carefully been perused with able assistance of learned counsel for the parties.
14. Following questions of law raised involve interpretations of some provisions of the Constitution, Schedule of Punjab Finance Ordinance (VIII), 1980 and the impugned notification:
(i)The impugned notification is in conflict with section 13(1) of the parent statute i.e. the West Pakistan Finance Act (No.XXXIV), 1964 inasmuch as that the said provision authorizes levy of duty on consumption as distinguished from mere generation;
(ii)The notification dated 30-12-1985 exempts from duty the consumers using their own electricity generated by them and since the impugned notification is ultra vires of parent statute the notification dated 30-12-1985 will hold the field.
(iii)Without prejudice to the submission noted in clause (b), it is maintained that the expression "supersession" in the impugned notification will only have reference to the notifications earlier issued on the same subject.
(iv)According to Second Schedule of the Punjab Finance Ordinance (No.VIII), 1980 the duty is leviable on the energy charges as determined on the basis of notified tariff. Since the petitioner is generating any consuming electricity, there was no question of any charges to determine the duty warranting its levy.
(v)That the impugned notification is ultra vires of the entries Nos.44 and 48 of the Federal Legislative list.
Although the subject i.e. the electricity is on the concurrent legislative list yet since the Constitution itself in Article 157, provides for the powers of the Provincial Government to levy duty or tax on consumption of electricity it will override all, other legislation. The precise submission is two fold. Firstly, even according to Article 157, the duty is leviable only on consumption and not mere generation. Secondly, the power of the provincial, government to levy tax on consumption of electricity under sub-clause (b) of sub-Article 2 of Article 157 will be available only if the conditions of clause (a) of sub-Article 2 of Article 157 are satisfied.
(vii) Whether the relationship of appellants with respondents is of consumer and licensee?
(viii) Whether levy of tax by the government in the prevailing conditions of country is fair and just?
15. The first objection raised by learned counsel for the respondents pertains to the maintainability of these writ petitions as well as, the I.C.As. After having perused the record, we find that in most of the instant I.C.As/Writ Petitions, authorization letters are duly annexed. Since the identical questions of law are involved, so all the writ petitions and I.C.As. in hand are proceedable in the light of law laid down by the Hon'ble Supreme Court of Pakistan in case reported as PLD 2005 SC 591. The law relied upon by the learned counsel for the respondents in this respect is not applicable in the circumstances of the cases in hand.
16. Perusal of WAPDA Act, 1958, Electricity Act, 1910 and all other relevant laws fully establishes that WAPDA has the exclusive authority to generate, transmit and supply energy/electricity to the consumers through various licensees. Section 22 of the Electricity Act, 1910 provides that it is the duty of the licensee to supply energy according to the terms and conditions of the license.
17. Perusal of WAPDA Act and other enabling laws also highlights that before installation of electricity connection, consumer submits a form printed by the licensee for domestic industrial, bulk, permanent or temporary connection which also includes a request as to how much load/pressure the consumer requires. After scrutiny of the application, the authority issues a demand notice according to its assessment and then supplies load to the consumer according to the terms and conditions settled between the consumer and the licensee. The said form which duly contains terms and conditions is reproduced below:-
'FORM FOR ELECTRICITY CONNECTION
DOMESTIC/INDUSTRIAL/BULKPERMANENT/TEMPORARY
APPLICATION No... CONNECTION NO
WATER AND POWER DEVELOPMENT AUTHORITY
APPLICATION AND AGREEMENT FOR SUPPLY OF ENERGY
The Additional Chief Engineer, West Pakistan Electricity Department, Central Zone, Lahore.
I/We hereby agree to take from the West Pakistan Electricity Department (hereinafter referred to as the said Department) at the premises stated below a supply of electrical energy not exceeding the connected load of my/our installation as stated below, and I/we hereby further agree to pay for the said supply at the rates applicable in this area of supply, as prescribed in the annexed Schedule of Tariffs and also to pay for all such other proper charges as may become due from me/us to the Department from time to time, at rates as prescribed in the annexed Schedule of Service Charges and General Charges, respectively and I/We further agree that I/We will, if at any time required by the Department to do so, lodge with the Department deposit calculated as prescribed in the annexed Conditions of Supply. I/We hereby declare that the said Conditions of Supply have been perused by/read to me/us and I/We agree to be bound by them.
Name of applicant --------------------------------- Father's Name -----------------------------
Designation ---------------------------------------
No. of rooms -------------------------------------- House No. ----------- Road -------------------
Locality -------------------------------------------- Town --------------------------------------------
The writing work will be carried out by (name) --------------------------------------------------
Address) ----------------------------------------------------------------------------------------:
2. Schedule of energy/consuming apparatus to be connected.
| Lamps | Fans, Heaters, Cookers, Refrigerators, etc | Motors" |
| No. | Wattage each | Total watts | Descri- ption | No. | Wattage each | Total Units | No. | B.I-I.P . | Total KW |
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
| Total | | | | | | | | | |
| | | | | | | | | | | |
3. Connected load of above installation Watts/kilowatts (less than half a kilowatt to be neglected and half and over to be taken as one).
4. Class of application.
(a) A New connection
(i) I am owner/landlord of the premises
(ii) My/Our landlord agrees to my/our taking the said supply and his written consent is enclosed herewith.
(b) An extension to my/our existing installation (connection No. --------------)
(c) A reconnection. The previous consumer's name is ------------------and his connection No. is -------------------
A change of name from -------------------- Connection No. --------------
Signature of applicant --------------------------------------
Present address ----------------------------- Home Address----------------------
Signature and address of witness --------------------------------:
Dated ----------------------------------
18. Section 28 of the Electricity Act, 1910 protects the rights of the consumer when it provides that before commencing supply of energy to the consumer, a licensee shall declare to the consumer the pressure at which he undertakes to take supply of energy and he shall not, without the written consent of the consumer or the prior sanction of the provincial government, permit the pressure to the very consumer by more than 5% in case of low and or medium pressure or by more than 12-1/2 % sin case of high pressure. But in the matter in hand, the WAPDA and the licensees have failed to honour the terms and conditions of the agreement executed between the respondents and the appellants/ petitioners/consumers on the pretext of heavy shortfall in the production of energy.
19. The shortfall of energy is not a problem which the consumers are facing for some weeks or months but for decades. Without going into the controversy as to who is responsible for this shortfall, we are of the opinion that the shortfall is wilful and unreasonable prolonged default of WAPDA.
20. The question arises as to whether the government is competent to levy tax on the production of energy by private generators in the prevailing situation of heavy shortfall in production of energy by the government entities which has paralyzed the economy of the country, closed a large number of units of, industry, made thousands of workers jobless, and compelled their families to starvation. The energy shortfall, dearness, terrorism, unemployment and street crimes have made the whole nation embarrassed and short tempered and heavy energy shortfall is contributing a lot towards' most of the evils of the society such as terrorism, street crimes etc.
21. There is no cavil that the government can levy tax provided WAPDA and other licensees have been producing and providing adequate energy to the domestic and industrial consumers according to their satisfaction as well as according to the terms and conditions executed' between the consumer and the licensee at the time of the installation of electricity connection. In such circumstances, if anyone generates" energy, the government has every right to impose tax thereon. While in the present circumstances when the WAPDA and other licensees have badly failed to supply electricity to the consumers, production of energy through private generators is not only a great help to the nation but it is also a positive step towards saving of thousands of families from starvation because close of one unit of industry means to turn a number of employed persons jobless and everyone knows that in the last few years, thousands of units of industry have not only shut out their operations but they have also shut their doors on thousands and thousands of their employees whose families are in great trouble now-a- days as on the one hand the prices are soaring and on the other hand, no job is being created due to heavy shortfall of energy because none is ready to invest in this country in the present circumstances. In this situation, the government is expected to extend incentives to the persons who are generating energy instead of levying tax thereupon and creating hurdles in the way of investment and prospective employment in this way. So, levying electricity duty on the private generators is condemnable in the prevailing circumstances.
22. Argument of learned counsel for the respondents that under Article 157 of the Constitution of Islamic Republic of Pakistan, 1973, thegovernment is authorized to levy tax on consumption of electricity within the province is misinterpreted as Article 157 of the Constitution is an enabling provision and is not a mandatory one. The Federal Government and the Government of the Province have discretion either to act under Article 157 of the Constitution or not. Respectfully reliance is placed on the law laid down by the Hon'ble Supreme Court of Pakistan in case titled, "Messrs Gadoon Textile Mills and 814 others v. WAPDA and others", reported as 1997 SCMR 641. The concept of Article 18 of the Constitution is more wider which provides freedom of trade, business or profession to every citizen of Pakistan.
23. Due to shortfall of energy not only the economic conditions of the country are deteriorating rapidly but also the survival of citizens is at stake, levying of tax on production of energy by private generators is not sustainable in the eye of law and instead, the government should encourage and give incentives to the appellants/petitioners as well as others who are participating or intend to participate in the production of energy till the time WAPDA produces energy enough to meet satisfactorily the domestic and industrial needs of the country in the present conditions, when government itself has hired rental power plants from different countries on their terms and conditions, levy of tax in question is unjust and unfair. So, there is no cavil to stay operations of the impugned notification. We are persuaded from Islamic Criminal Law which is a translation of "Kitab-ul-Ikhtiar" by Hafiz Muhammad Haider, Memorial Academy whereby in Chapter 3, Paragraph 92; it has been held that during the period of starvation, if anyone steals food stuff for himself or for his family's survival, the provisions of Hadd will not be attracted and the hand of such person shall not be amputated as happened in the era of Hazrat Umar Farooq (R.A.) when he ordered not to amputate the hand of the thief because the thief was compelled to steal food for his survival due to starvation (verse):--
24. So far as the Shaukat Khanam Memorial Trust Hospital is concerned, we are of the considered view that the Shaukat Khanam Memorial Trust is a charitable institution, thus it does not fall within the ambit of Fifth Schedule of the Finance Act, 1964 and is not liable to pay electricity duty as imposed through the impugned notification.
25. In a 'nutshell, the provincial government is not just to levy tax on the production of energy by individuals through private generators till the time when WAPDA and its licensees provide electricity to the individuals and the industry according to their requirements, therefore, all the I.C.As. and Writ Petitions in hand are accepted, the impugned judgments/orders dated 10-6-2005, 6-7-2005 and 1-9-2006 passed by the learned Single Judge in Writ Petitions in which I.C.As. have been filed are set aside and the operation of the impugned notification dated 25-8-2001 is held in abeyance till the time, WAPDA provides sufficient energy to its consumers according to their requirements.
M.H./I-10/LIntra-Court Appeal allowed.