P L D 1978 Lahore 1331 (PLP)

Art. 199-Writ-Jurisdiction-Tribunal, not having jurisdiction, wrongly exercising such jurisdiction-Held, appeal would lie from such decision in same manner as it would lie from a decision with jurisdiction-Decision on question whether appeal provides an effective remedy or not, before approaching High Court-Depends upon circumstances of each case.-[Jurisdiction-Appeal civil]. (b) Constitution of Pakistan (1973)

Art. 199-Writ-Remedies against impugned orders/notices available by way of appeal and revision-Petitioner held should avail of such remedies before approaching High Court in writ jurisdiction.-[Appeal (civil)--Revision (civil)-Writ]. A. K. Dogar for Petitioners. Demand notices qua professional tax are under challenge in these petitions. A question was posed on the last hearing and for which the learned counsel was asked to offer reply as to why the petitioners should not avail of remedies by way of appeal and revision, if provided by law? Learned counsel was not, then, aware of the provisions relating to appeal and revision. He has today stated that appeal and revision are competent; but the petitioners would not like to avail of those remedies because important questions of interpretation of law and Constitution are involved. It will be, according to him, a futile exercise to first go to the appellate and revisional authorities and then approach the High Court. He has also relied on the case-law in this behalf.

2. It is well-settled principle that if a Tribunal, not having jurisdiction, wrongly exercises such jurisdiction (and if an appeal is otherwise competent), the appeal would lie from that decision in the same manner as an appeal lies from a decision with jurisdiction. It depends upon the circumstances of each case whether appeal provides an effective remedy or not, before approaching the High Court in writ jurisdiction. In these cases, I have noticed from an order passed on Writ Petition No. 3108/77 that another Writ Petition (No. 3757/77) was withdrawn because the impugned order therein was withdrawn by the departmental authorities. Although questions of interpretation are raised in all these petitions but, as observed by my learned brother Shafi-ur-Rehman, J., in the order dated 30-5-1978 in Writ Petition No. 2744/78, even on questions of interpretation, departmental view through properly instituted proceedings should be obtained before seeking a judicial review in this Court through its writ jurisdiction. In the said case, a departmental interpretation on only one point was obtained by the petitioners from the Excise and Taxation Officer, vide his opinion expressed in the form of a memorandum dated 19-6-1978 attached with the said petition as Annexure 'G', in reply to an application submitted by the petitioner. But that opinion cannot be considered as final, in so far as the department is concerned. It is subject to appeal and revision which, it is not denied, are competent under the relevant law. A possibility cannot be excluded that in the said hierarchy at any stage-whether at the level of the Excise and Taxation Officer through a representation or a Miscellaneous application or in the appeal or revision, the impugned notices/orders are withdrawn as done in the case of Writ Petition No. 3757/77. Learned counsel agrees that if, with such an effort through appeal or revision, the impugned notices are withdrawn, the petitioners would not agitate the matter in the High Court simply to get law clarified or declared.

3. In view of the above circumstances, I do not agree with the learned counsel that in there cases the petitioners, on the stated grounds, should not avail of remedies by way of appeal and revision, before approaching the High Court in its writ jurisdiction. Accordingly, these Petitions (Nos. 2744/78, 3108/77, 3476/77, 3365/77 and 653/78) are dismissed in limine. S. Q, Petition dismissed in limine.