2010 PLP 1869 (YLR)

SALMAN HAMID, J.

Earlier in time, the present petitioner, against respondents filed Constitutional Petition No.D-167/2008 (C.P.) which was heard by this Court and finally in terms of order dated 19-9-2006 the same was allowed after appreciating the contents of letter dated 27th August, 2003 written by the Secretary STC to Director (C&M), Federal Tax Ombudsman Secretariat, Islamabad which read as under:

(2). It is informed that the total amount of reward payable to the informer in the case of Messrs KESC is Rs.1,304,068 as per the provision of Sales Tax Reward Order, 1998 dated 30-11-1998. Since the case is pending adjudication in the Appellate Tribunal, Karachi therefore, only 25% of the said amount, which comes to Rs.3,26,017, can be paid provisionally. It is pertinent to mention that the Central Board of Revenue has already requested the honourable Federal Tax Ombudsman that the complainant may submit an inheritance certificate. Moreover, submission of a bank guarantee is also required in terms of para 2 (vi) of the Board's letter C.No.5 (2) ST-Ext. Audit/2003 dated 16-5-2003 (copy enclosed) so that in case the demand is set aside by any legal forum, the recovery of the paid amount of reward is secured. (Sd.) (Parvez Esbhani) Secretary (STC) The operative part of the order dated 19-9-2006 was in the following terms:-- "The petition is, therefore, allowed in the terms that the respondents and particularly respondent No.2 shall pay the admitted claim as contained in the letter dated 27th of August 2003 to the petitioner on completion of all formalities according to the rules, within a period of two months. We would like to clarify that in the letter dated 27th of August 2003, it was stated that at that time 25% of amount was payable provisionally further entire amount was to be paid after adjudication in the appellate Tribunal Karachi. The Appellate Tribunal has decided the Sales Tax Appeal No.K-140/2001, vide order dated 14-9-2005, whereby the appeal preferred by KESC has been dismissed with the result that the entire reward amount of Rs.1,304,068 has become payable which should be paid within the period specified above. The respondent No.2 is further directed to report compliance of this Order to the member Inspection Team of the High Court, within a period of three months from today." It is thus clear from the above reproduction of the letter dated 27-8-2003 and the order dated 19-9-2006 that in essence C.P. was disposed of in terms thereof after the petitioner was satisfied with the payment of the reward money of Rs.1,304,

068. Despite receipt of the reward money, an application under section 151, C.P.C. bearing CMA No.2262/2007 by the petitioner was made in the C.P. with a prayer that the prayer clause `b' of Petition be implemented by the respondents and compliance be reported to this Court. Such CMA came up for hearing on 20-8-2007 and was dismissed vide Order dated 20-8-2007 with the following observation:-- "The learned advocate for the petitioner has admitted that he has received the amount mentioned in the letter. The question arises as to whether clause (B) of the prayer' clause is included in the above mentioned order by which the petition was disposed, on which we have heard the parties' advocates. The above portion of the order is clear and specific by which the petition was disposed of in terms of the letter dated 27-8-2003. In the prayer clause two main prayers were made but the petition was not disposed in terms of the said prayers but on different terms as mentioned in letter dated 27-8-2003. As such, prayer clause (B) of the petition was not included in the order by which the petition was disposed of. The application is dismissed." Not contented with that, the petitioner preferred this petition on or about 15-5-2008 with the following prayers:- "A. Direct that the respondent shall implement the order of learned Ombudsman dated 30-1-2000 Federal Tax and calculate the amount of reward payable to the petitioner in accordance with sales tax reward order C-7 (2) STC/98 dated 30-11-1998 on the amount of tax collected by the respondent from KMC on account of public lights and pay the reward amount to the petitioner. B. Pass such other order or orders as may be deemed fit in the circumstances of the case. C. Award cost of the petition." In the above backdrop, Mr. Siddiqui, learned counsel for the petitioner attempted to argue that as far as prayer (B) of the C.P. of 2006 was concerned, it was not satisfied and/or did not form part of the order dated 19-6-2006 and was to be given effect after the audit report was submitted and therefore present petition was filed, containing the prayers, reproduced above. Arguing on behalf of the respondents Nos.1 and 2, learned counsel Messrs Kafeel Ahmed Abbasi and Ashiq Raza, learned DAG respectively opposed the petition by challenging its main tainability on the principles of res judicata. It was augured that prayer "A" of the present petition is the same as was contained in the earlier CP; and that the same having been given up by the petitioner in that C.P. at the time of passing of order dated 19-9-2006 and/or finally decided cannot be agitated now by way of present petition. It was also argued that if the petitioner was aggrieved by order dated 19-9-2006, it ought to have been appealed against before the Hon'ble Supreme Court of Pakistan or at the very least review should have been filed. Neither of the two was done and limitation period for such reliefs also extinguished long time back. It was also urged that even the order dated 20-8-2007, that was passed in the CP on CMA No.2262 of 2007 gone unchallenged or no review in respect thereof was filed and that both the orders have attain finality. Such being the position, now such orders in an indirect manner cannot be looked into or adjudicated upon by this Court in the present petition. The main thrust of argument of the Advocate for the petitioner was that since reward that was to be granted was with regard to two different matters/categories, first one related to the recovery of tax in respect of supply of respondent's employees and the second one was in respect of amount of tax collected from KMC on account of public lights and that second one having not been paid, present petition was filed and that at no stage of time and/or at the time of passing of Order dated 19-9-2006 reward amount as contained in the second category was given up or that Prayer `B' was compromised. We are not at all impressed by this far fetched argument of the petitioner's counsel inasmuch as that if such would have been the position, order dated 19-9-2006 would have been reflective of it. The other reason for repelling the argument of Mr. Siddiqui is that this Order was not challenged before the apex Court or sought to be reviewed once it transpired by the petitioner that prayer "B" of the C.P. was not granted. We are of the opinion that the petitioner was all along quiet contended with the Order dated 19-9-2006 and was also mindful of the fact that the C.P. was decided by the Court on the basis of letter dated 27-8-2003 and that the prayers as were contained in that CP also stood satisfied by that Order. This being the factual and legal position, the argument of the respondents' counsel that the present petition falls on all fours on the principles of res judicata cannot be ignored as remote. In respect of the principle of res judicata, we are fortified by a judgment, passed in the case of MKB Industries Pvt. Ltd. and others v. Chairman, Area Electric Board WAPDA and others-reported in 2005 SCMR 699 where the Hon'ble Supreme Court of Pakistan uphold the order of the Peshawar High Court, when the Peshawar High Court dismissed Constitutional Petition of MKB Industries (Pvt) Ltd. by holding that earlier constitutional petition, challenging the levy of surcharge and additional surcharge having been dismissed earlier in time, preferred by other petitioners wherein validity of reduction in time limit of rebate of electricity was reduced, on the same ground the petitions filed subsequently were not maintainable. Aggrieved by such dismissal, the petitioners therein moved to the Hon'ble Supreme Court of Pakistan, when the Hon'ble Supreme Court of Pakistan upheld the decision of dismissal of the petition by the Peshawar High Court on the principle of constructive res judicata and held that the issue of withdrawal of rebate having been decided finally in the earlier petitions and / or earlier round of litigation cannot be agitated subsequently. In the case in hand not only that the petitioners and respondents are same and that after hearing, the C.P. was finally decided in terms of Order dated 19-9-2006, the Order was also acted upon and attain finality when no appeal or review was filed against it. Therefore, in our opinion and the dicta as laid down by the Hon'ble Supreme Court of Pakistan in the above reproduced citation, the present petition indeed is hit by the principle of constructive res judicata and is liable to be dismissed on this ground alone. The case of the petitioner does not end here, application bearing CMA No.2262/2007 that was moved' in referred C.P. was also dismissed against which no appeal or review was sought. In our opinion the two prayers as contained in the present petition stood resolved in the C.P. cannot now be agitated by way of these proceedings. On the face of it the purpose of the present petition is to seek a thing indirectly which the petitioner is precluded and prohibited to have directly after she lost the opportunity to take the Order dated 19-9-2006 and order dated 20-8-2007 in review and/ or before the Hon'ble Supreme Court of Pakistan within the period of limitation. The entire scope of this petition is to gain the period of limitation already lost by the petitioner. This cannot be allowed. These are the reasons for dismissal of the petition in limine on 17-3-2010. H.B.T./M-75/K Petition allowed.