1960 PLP 580 (PTD)

4. The learned Advocate appearing for the Taxing Department has raised a preliminary objection as to the enter tainment of the application. He has contended that the remedy of the petitioner was to appeal to the appropriate authority and, the petitioners not having done that, this application should fail in limine. He has further contended that the petitioners are not entitled to ask for the issue of a prerogative writ, as be has adequate alternative remedy under the Sales fax Act by way of appeal.

5. On the other hand, Mr. Abdullah, the learned Advocate for the petitioners, has contended that this Court can always interfere by prerogative writs in cases where it finds that the Taxing Authority has acted in excess oh its jurisdiction. In support of his contention, he has relied on the decision of the Supreme Court in S. A. Haroon v. Collector of Customs (P L D 1959 S C (Pak.) 177).

6. At the very outset, we may observe that a writ petition is not an appropriate proceeding for adjudication of a dispute like the present one. Under the Sales Tax Act, an assessee is entitled to get redress of his grievances. Further, under the said Act, he can get all the relief s to which he is entitled including some which could not be available in a writ petition. It is well‑settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court.

7. In the Tariq Transport Company, Lahore v. The Sargodha Bhera Bus Service (P L D 1958 S C (Pak.) 437), Munir, C.J., observed at page 448. "In their judgment, however, the contention that the res pondent should appeal before asking for a writ from the High Court has received no consideration, and I consider it to be wrong on principle for the High Court to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary by the High Court is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and compe tency and thus to defeat the legislative intent. And in a case of the present kind where the right which the petitioner for a writ claims to vest in him is entirely the creation of a statute, it is all the more imperative on him to exhaust the remedies provided by the statute before he comes to the High Court". In S. A. Haroon's case, the learned Chief Justice, after quoting the above passage, observed. "This is the general rule. At the same time it was recognised a, an exception that in cases of absence or excess of jurisdiction or where the impugned order suffered from illegality, on the face of the record, a certiorari may be granted even though the right of statutory appeal had not been availed of. It was further remarked that the rule is much more stringent in the case of mandamus than in that of certiorari. In the case of a prayer for a writ of certiorari, a certain amount of flexibility is allowed depending upon the nature of the case. Halsbury's Laws of England, Third Edition Volume II, page 130, states the position in the following terms: There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy ; and provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute . In most cases, Courts would act on the general common law rule that certiorari will not lie when there is another adequate remedy by appeal, writ of error or otherwise, where an inferior Court has jurisdiction (Ferris on Extraordinary Legal Remedies, page 185)'. But, in a proper case, where the question of jurisdiction is raised, the extraordinary juris diction of the High Court may be successfully invoked by way of certiorari. The locus standi of the person approaching the Court in such matters is also an important consideration. As was observed in King v. Post‑Master General ex‑parte Carmichael, (1928) 1 K B 291. `It is undoubtedly good law that if the application for a certiorari is made by a party aggrieved then it ought to be granted ex debito justitiae, and the Court has not the general discretion which it would have when the application is made by one of the public who is not personally concerned'. In the present case, the question of jurisdiction is raised by the contention that the Collector of Customs had no authority to seize any particular goods, unless there was prima facie evidence to suggest at least that the goods were covered by a notification imposing any restriction or ban on its import. That was a condition precedent to the exercise of the power of seizure conferred by law and the case of the aggrieved parties is that the Collector acted without satisfying himself on this vital point. The question of interpretation of the law involved is of considerable importance and might frequently arise. In the circumstances of these cases, therefore, I am not disposed to give effect to the technical objection raised by the learned Attorney‑General". From the above, it is clear that in an appropriate case this Court can interfere by a prerogative writ when the Authority acts beyond its jurisdiction.

8. In this connection, the following observations of the learned Chief Justice in the case of Tariq Transport Co., Lahore, is also pertinent: "If a tribunal has no jurisdiction either in respect of the subject‑matter of litigation or the parties before it or the territory to which the dispute relates or because of its own defective constitution or the illegality of the order, the pro ceedings are void ab initio, and an appeal in such a case is an unnecessary step and mere prolongation of the proceedings which eventually the Court must hold to be void for lack of jurisdiction. In such cases certiorari acts as would a Court of Equity. Thus there have been several cases in England where certiorari was granted if the Tribunal had acted without jurisdiction, though a right of appeal existed: R. v. North (1927) 1 K B 491, White v. Steel 12 C B (N S) 383, Martin v. Machonochie 4 Q B D 697, 732, Ex parte Smyth 3 Ad & E

719. But where appeal does lie, in order to quash a proceeding by certiorari, it is necessary that the lack of jurisdiction should appear on the face of the record. Another case where a petition for certiorari may be entertained without waiting for the result of the appeal is where an appeal being competent a party is deprived of that right without any fault or negligence on his part or where the Appellate Tribunal refuses to or does not determine that appeal ". It is thus clear that the High Court generally will not interfere with the order of Taxing Authority when the act is well within its jurisdiction. In the present case, the petitioners are challenging an assessment to sales tax on the ground that the transaction on which the taxes are sought to be levied do not fall within the definition of the word " sale " and that they are not also dealers within the meaning of section 8 of the Sales Tax Act, as amended by the Finance Act of 1952. The above shows that this is a case of erroneous exercise of jurisdiction and not of lack of jurisdiction. Thus there is no error apparent on the face of the proceeding. Hence, in my opinion, the following observations of Munir, C. J., in the case of Tariq Transport Co., Lahore, is applicable to this case. "Having given careful consideration to this aspect of the matter, I am of the view that the present case was governed by the general rule that where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ. Since, in the present case, the statute under which the respondent had a grievance provides an appeal in which that grievance can be set right, no writ of certiorari or mandamus or any other discretionary order of that nature should have been issued by the High Court ".

9. We may also observe that the learned Advocate for the petitioners has not given any satisfactory explanation as to why his clients have not availed of the machinery provided by the Act nor has he shown that the remedy provided by the Act is of an onerous and burdensome character. In a case like the present one, where the Tax Officer has erroneously made an assessee liable to a tax, the Sales Tax Act provides machinery for rectifying that error by appeal. The assessee is also entitled to take steps to lave the case stated and a Refer ence made on the legal aspect of the matter to the High Court.

10. We, therefore, think that it will be a sound exercise of discretion to refuse to interfere in the case on the grounds alleged by the petitioners.

11. There is also another reason why we consider that the present petitioners should proceed to avail themselves of the remedies provided by the Act and, in due course, if so advised, to take steps to have the case stated and a reference made on the legal aspects of the matter to the High Court. We find that neither from the description of the petitioners business given in the petition nor from the affidavits filed try the authorities it is at all possible to form any clear picture of the exact nature of the transactions regarding which the legality of the imposition of additional sales tax is challenged. Further whether aratdars are dealers within the Meaning of the Act turns mainly on the question which, we think, cannot be satisfactorily decided without taking further evidence. In short, on the materials before us, it is not possible to decide that an aratdar is not a dealer within the meaning of the Act and that the transactions carried on by an aratdar do not fall within the meaning of the word "sale". It is however not the practice of this Court to decide questions of that character in a writ petition.

12. For the reasons stated above, we decline to interfere with the order of the Sales Tax Officer;

13. The petition is accordingly dismissed and the Rule is discharged but without any order as to costs. ASIR, J.‑I agree. Petition dismissed.