2002 PLP 1566 (CLC)

(a) Punjab Zila Councils (Export Tax) Rules, 1990‑‑‑ ‑‑‑‑R. 5 ‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition Maintainability‑‑‑Disputed question of fact‑‑‑Collection of goods exit by the Authorities‑‑‑Petitioners contended that the Authorities had wrongly collected the tax from them as their goods were either in transit or the same were imported from abroad ‑‑‑Validity‑‑ Controversy between the parties in the present case related to disputed question of fact‑‑‑High Court had no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction‑‑‑ Petition was not maintainable in circumstances. Muhammad Younis Khan's case 1993 SCMR 618 ref. (b) Punjab Zila Councils (Export Tax) Rules, 1990‑‑‑ ‑‑‑‑R. 5‑‑‑Punjab Local Government Ordinance (VI of 1979), S.143‑‑ Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Alternate remedy‑‑‑Recovery of goods exit tax‑‑‑Petitioners, instead of availing remedies available under relevant law, filed the Constitutional petition‑‑‑Validity‑‑‑Where the petitioners had alternative remedies under the provisions of Punjab Local Government Ordinance, 1979 and rules framed therein, Constitutional petitions were not maintainable. Raja Mehmood's case 1994 SCMR 1484; Raja Ramzan's case 1994 MLD 930; KID. Abdul Waheed's case PLD 1978 Lah. 811; Ch. Muhammad Ismail's case PLD 1996 SC 246 and ICI Pakistan's case 1993 MLD 32 ref. (c) Punjab Zila Councils (Export Tax) Rules, 1990‑‑‑ ‑‑‑‑R. 5‑‑‑Punjab Local Government Ordinance (VI of 1979), S.137, Sched. II, item 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑ Constitutional petition‑‑‑Recovery of goods exit tax by Local Councils‑‑ Petitioners were either importers of the goods from foreign countries or were manufacturing the same outside the limits of the Local Councils‑‑‑Grievance of the petitioners was that the Local Councils were not entitled to recover such tax from the petitioners‑‑‑Validity‑‑‑Courts have to protect interest of taxpayer as well as public exchequer notwithstanding follies or illogical and some time even casual attitude of the custodians of the public exchequer‑‑ Where the petitions had been pending adjudication before the High Court since 1993, the same were sent to the Provincial Government, and High Court directed the Government to pass appropriate orders strictly in accordance with law‑‑‑Constitutional petitions were disposed of accordingly. Sunny Woollen Mills (Pvt.) Ltd. v. Government of the Punjab 1993 MLD 2170; Seth Nisar Ahmad v. Tasawar Hussain and others 1993 MLD 2316; United Business Lines, S. I. E. Gujranwala v. Government of Punjab and others PLD 1997 Lah, 456: Messrs Rupali Polyester Ltd. v. Government of the Punjab and others 1992 CLC 796; Multan Chemical Ltd. v. District Council, Lahore 1991 MLD 910; Sher Ali and others v. Bashir Ahmad and others 1994 MLD 2236; ICI Pakistan Ltd. v. Zila Council, Jhelum and others 1992 CLC 458; Messrs Mian Tyre and Rubber Co. Ltd. v. The Government of Punjab and others 1992 MLD 122; Zila Council, Jhelum v. ICI (Pvt.) Ltd. 1993 SCMR 454; Glaxo Laboratories Ltd. v. Union Council, Dulu Khurd and others 1991 CLC 354; Aijaz Ahmad and others v. District Council, Sukkur and others 1990 CLC 1367; Syed Sabir Shah and others v. Shah Muhammad .Khan PLD 1995 SC 66; Collector, Customs, Karachi v. New Electronic (Pvt.) Ltd. and others PLD 1994 SC 363 and Riffat Askari v. The State PLD 1997 Lah. 285 ref. JUDGMENT I intend to decide the following writ petitions by one consolidated judgment having similar facts and law: --‑ (1) Writ Petition No.3267 of 1993, (2) Writ Petition No. 13158 of 1994; (3) Writ Petition No. 13877 of 1993, (4) Writ Petition NO. 15153 of 1994, (5) Writ Petition No. 8614 of 1992, (6) Writ Petition No. 1859 of 1996, (7) Writ Petition No. 18624 of 1995, (8) Writ Petition No. 18622 of 1995, (9) Writ Petition No.1857 of 1996, (10) Writ Petition No.16591 of 1995, (11) Writ Petition No.16598 of 1995 and (12) Writ Petition No. 16599 of 1995. Writ Petitions Nos. l to 4 filed by the petitioners that respondent No.2 had no authority under the law to recollect and re‑impose export tax on the imported raw material of the petitioners which after clearance from the custom barrier at Dryport Mughalpura. Lahore was transported to the plant. They have prayed that respondent No.2 and its functionaries be directed to return amounts already illegally collected by them in the sum of Rs. 10.97,060 (for the period from 23‑9‑1992 to 17‑10‑1992), Rs.13,41,560 (for the period from 6‑6‑1994 to 12‑12‑1994), Rs.7,12,040 (for the period from 19‑4‑1993 to 19‑9‑1993) and Rs.8,34,805 (for the period from 1‑8‑1993 to 9‑10‑1994) respectively.

2. The writ petitions at serial Nos.5 and 6 filed by the petitioners with the prayer that action of respondent No.2 recovering export tax/goods exit tax upon produced by the petitioners be declared without lawful authority and respondents be directed to restrain from recovering the aforesaid taxes and tax already recovered from the petitioners be refunded to them.

3. The writ petitions at serial Nos.7 to 9 filed by the petitioners with the prayer that the respondents be restrained from charging/levying "Goods Exit Tax" upon the petitioners with reference to the 'number' of the items produced rather than "weight" thereof in disregard of Government's directive, dated 15‑10‑1992

4. The writ petitions at serial Nos. 10 to 12 filed by the petitioners with prayer that respondent No.2 may kindly be restrained from recovering export tax from the Goods produced by the petitioners through respondents Nos.5 and 6 and action of respondents for recovering of Export‑tax be declared without lawful authority.

5. Mian Nisar Ahmad, Senior Advocate counsel of the petitioners in writ petitions at Serial Nos. l to 4 submits that no exit tax can be charged on the goods imported from abroad. He further submits that even while in transit the goods, do not pass through the area falling within the jurisdiction of Zila Council at Lahore as the municipal limits of Lahore Municipal Corporation adjoins those of Zila Sheikhupura. He further urged that the petitioners filed Writ Petition No.9162 of 1992 which was disposed of on the statement of the learned counsel of the parties on 11‑3‑1991. The aforesaid order of this Court was not agitated by any of the parties before any higher forum. He further urged that. the respondents are lawful authority to recover the export tax on goods which are produced within local limits of Zila Council which export out‑side the limits; whereas in the present case, the petitioners imported goods from the abroad and after clearance from the custom barriers, remained in the transit from Mughalpura Dryport, Lahore till the goods were taken by importers to their manufacturing plants He summed up his arguments that action of the respondents is in violation of mandatory provision of Punjab Local Government Ordinance, 1979 and rules framed there-under. He further urged that action o1 the respondents is in violation of the law laid down by the Superior Courts. In support of his contention, he relied upon the following judgments:‑‑ Sunny Woollen Mills (Pvt.) Ltd. v Government of the Punjab 1993 M.L.D. 2170, Seth Nisar Ahmad v, Tassawar Hussain and others 1993 MLD 2316,United Business Lines S.I.E., Gujranwala v. Government of Punjab and others PLD 1997 Lah. 456, Messrs Rupali Polyester Ltd. v. Government of the Punjab and others 1992 CLC 796 and Multan Chemical Ltd v. District Council, Lahore 1991 MLD 910.

6. Mr. Shahzad Shaukat, Advocate appearing on behalf of the petitioners in writ petitions at serial Nos.5 to 9 submits that according to the petitioners, their factories are situated within limits of Town Committee Kot Abdul Malik. According to the rules, no goods exit tax leviable by the Zila Council Sheikhupura, can be recovered on the goods produced by them as the said goods cannot be‑ said to have originated within limits of Zila Council, Sheikhupura. He further submits that the respondents have no authority to recover tax in‑question .from the petitioners on the basis of "number" rather than weight of consignment which is totally illegal and without authority. He further urged that the action of the respondents is in violation of mandatory provisions of Punjab Local Ordinance, 1979 and rules framed there-under. In support of his contention, he relied upon the following judgments:‑‑ Sher Ali and others v. Basher Ahmad and others 1994 MLD 2236, ICI Pakistan Ltd. v. Zila Council, Jhelum and others 1992 CLC. 458 and Messrs Mian Tyre and Rubber Co, Ltd. v. The Government of Punjab and others 1992 MLD 122.

7. Mr. Abid Aziz, Advocate appearing on behalf of the petitioners in writ petitions at serial Nos.9 to 12 submits that since the place of manufacturing of the petitioners is not within territorial limits of District Council, therefore, levying and collection of export tax by the respondents from the petitioners is without legal

10. Malik Akhtar Hussain Awan, learned Additional Advocate General adopted the arguments of the learned counsel of the parties.

11. Learned counsel for the petitioners in rebuttal submit that since the respondents have no authority under the law to recover the tax from the petitioners, therefore, the petitioners have no efficacious remedies under the provisions of Punjab Local Government Ordinance. 1979 and rules framed thereunder. In support of their contention, they relied a on the following judgments: ‑‑ United Business Lines, S.I.E. v. Government of Punjab and others PLD 1997 Lah. 456, Glaxo Laboratories Ltd. v. Union Council, Dulu Khurd and others 1991 CLC 354 and Aijaz Ahmad and others v. District Council, Sukkur and others 1990 CLC 1367.

12. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

13. In case the contentions of the learned counsel of the parties are put in juxtaposition, then controversy between the parties comes in the area of disputed question of facts. It is settled principle of law that this Court has no jurisdiction to resolve the disputed question of facts in Constitutional jurisdiction, as per principle laid down by the Honourable Supreme Court in Muhammad Younis Khan's case 1993 SCMR

618. It is also admitted fact that the petitioners have alternative remedies under the provisions of Punjab Local Government Ordinance, 1979 and rules framed therein. In this view of the matter, the writ petitions are not maintainable. In arriving to this conclusion, I am fortified by the following judgments: ‑‑ In Raja Mehmood's case 1994 S.CMR 1484, in Raja Ramzan's case 1994 MLD 930, in Kh. Abdul Waheed's case PLD 1978 Lah, 811, in Ch. Muhammad Ismail's case PLD 1996 SC 246 and in ICI Pakistan's case 1993 MLD

32. The aforesaid preposition of law was considered by my learned brother the then Mr. Ehsan‑ul‑Haq Chaudhry, J. in Writ Petition No.4174 of 1998 and laid down the following principle. "There is recent tendency to file Constitution petition without exhausting remedies under the statute. This recent trend is dangerous. The Honourable Supreme Court clearly held in the case reported as Syed Sabir Shah and others v. Shah Muhammad Khan PLD 1995 SC 66, Collector Customs Karachi v. New Electronic (Pvt.) Ltd. and others PLD 1994 SC 363 and Riffat Askari v The State PLD 1997 Lah.

285. In this view of the matter, the writ petitions are not maintainable. As it is not against any principle of the Courts of this country to protect interest of taxpayers as well as public Exchequer notwithstanding follies or in logical and some time even casual attitude of the custodians of the public exchequer.

14. Keeping in view of above said principle, the writ petitions are pending adjudication before this Court since 1993. In this view of the matter, let a copy of writ petitions be sent to the Secretary Local Government and Rural Development Department, Civil Secretariat, Lahore, who is directed either to look into the matter personally and pass appropriate order strictly in accordance with law preferably within three months after receiving the order of this Court after. providing proper hearing to all the concerned, or to constitute a High Power Committee to proceed in this matter, who is also directed to look into the matter and pass appropriate order strictly in accordance with law. Within prescribed time.

15. The petitioners are directed to appear before respondent No. 1 on 2‑11‑2001, who is directed to proceed with the matter keeping in view the aforesaid direction strictly in accordance with law. He is further directed to submit his report to the Deputy Registrar (Judicial) of this Court within stipulated period i.e. 2‑2‑2002. With these observations, the writ petitions are disposed of. Q.M.H./M.A.K./R-99/L Order accordingly.