2002 PLP 134 (CLC)

Nemo for Respondents. Date of hearing: 16th July, 2001. Brief facts out of which present writ petition arises are that respondent No.2 had levied tax on the following items under the provision of Punjab Local Government Ordinance, 1979 and rules framed therein:‑‑ "Paddy Cotton, yarn Soda Water, Coal. for manufacturing of bricks, wood waste for brick kiln, rice husk, Bhoosa, wood and soda caustic."

2. Respondent No.2 had decided to increase rate of tax on the aforesaid items. Notice of public‑at‑large had been printed under the direction of Chairman of respondent No.2. Contents of the notice reveal that meeting of respondent No.2 was held on 19‑5‑1992 and decided to increase the taxes on the abovementioned items. Public notice was also notified for inviting the objections to the proposed rate of taxes with cut of date that objections must be filed till 3‑6‑1992 for consideration of Sub‑Committee of Union Council constituted by respondent No.2 in this behalf and the objections received after the cut of date would not be entertained. The Sub‑Committee considered the objections and recommended the increase in rate through its report to respondent No.2 qua the increase in the rate of taxes in the aforesaid items. On the basis of report of Sub‑Committee, respondent No.2 passed a resolution in its meeting held on 8‑6‑1992 for enhancement of taxes in the relation of 9 items which are mentioned in para. No. 8 of the writ petition. Respondent No.2 also sent letters to Manager, Government Printing Press, Lahore for publication of Notification under section 138 of the Punjab Local Government Ordinance, 1979 qua the enhancement of rate of aforesaid items. The petitioner being aggrieved filed this writ petition.

3. Learned counsel of the petitioner submits that respondent No.2 enhanced the rate of taxes of said Articles in violation of the mandatory provision of the Punjab Local Government Ordinance, 1979 and Rules framed therein. He further submits that respondent did not enhance the rate in the prescribed method under the Rules i.e. Punjab Local Council Taxation Rules, 1980. He further urged that respondent No.2 enhanced taxes in violation of Rules 3 and

4. He further urged that action of respondent is not sustainable in the eye of law on well‑known principle, when a thing is to be done in a particular manner, it must be done in that way and not otherwise. He summed up his arguments that action of the respondent is in violation of law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:‑‑ Mustahkam Cement v. Zila Council Rawalpindi 1992 CLC 1176, I.C.I. Pakistan Ltd. v. Zila Council, Jhelum 1992 CLC 458 and Raja Muhammad Ramzan v. Zila Council, Attock PLD 1992 Lah.

324. Learned Additional Advocate‑General submits that writ petition is liable to be dismissed as the petitioner has alternative remedy against the impugned action of the respondent. He further submits that the petitioner has no locus standi to file the present writ petition as proposed taxes for enhancement of coal used by the petitioner as owner of brick kiln has not be enhanced. He further urged that the respondent levied the taxes in question after completing all the legal formalities. He further submits that the petitioner relied upon judgment in Zila Council, Jhelum, which was set aside by the Honourable Supreme Court of Pakistan in case of I. C. I. Pakistan Ltd. v. Zila Council, Jhelum 1993 SCMR

454. I have given my anxious considerations to the contention of the counsel for the parties and perused the record myself. In case contents of writ petition and parawise comments are put in a juxtaposition then it brings the case of the petitioner in the area of a disputed question of fact and this Court has no jurisdiction to resolve the disputed question of facts in Constitutional jurisdiction as per principle A laid down by the Honourable Supreme Court in case of Muhammad Younus Khan and 12 others v. Government of N.‑W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618. it is submitted fact that the petitioner has alternative remedy before the Deputy Commissioner concerned under the provision of Punjab Local B Government Ordinance and rules framed therein, therefore, the writ petition is not maintainable. In arriving to this conclusion I am fortified by the following judgments: Raja Muhmmad Ramzan's case 1994 SCMR 1484; Raja Muhammad Ramzan's case 1994 SCMR 1484; I.C.I. Pakistan's case 1993 MLD 32; Kh. Abdul Waheed's case PLJ 1978 Lah. 253; Muhammad Ismail's case PLD 1996 SC

246. The aforesaid proposition 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 Constitutional petitions 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. The judgments cited by the learned counsel for the petitioner are distinguishable in facts and law. In view of what has been discussed above, this writ petition is not maintainable and the petitioner, if so advised, may avail alternative remedy by filing an appeal before the Deputy Commissioner. Disposed of with the abovementioned observations. H.B.T./A‑306/L Petition dismissed.