2001 PLP 734 (CLC)

Ijaz Ahmad Chaudhery, Addl. A.‑G. for Respondents. Petitioner through this Constitutional petition has taken exception to the notification dated 27‑5‑1998 issued by respondent No.3 directing enhancement in licence fee on the basis of a Resolution bearing No.321 passed on 27‑5‑1998 by the Municipal Committee, Kamalia. Learned counsel for the petitioner submits that on the alleged date of resolution the committee was not properly constituted as the election of the Chairman was held in December, 1998 and further no objections were called for the aforesaid enhancement as is envisaged by Rules 3 and 4 of the Punjab Local Councils (Taxation Rules), 1980. Therefore, impugned notification is not sustainable in the eyes of law. In support of his contention he relied upon the following judgments:‑‑ Glaxo Laboratories's case 1991 CLC 354 and Rauf Trading Company Ltd.'s case 1990 CLC 1732.. He further submits that the impugned notification was issued by respondent No.3 without prior approval of the Government and the same is in violation of the instructions issued by the Government vide letter, dated 5‑6‑1996 which is attached as Annexure "C" with the writ petition. He further submits that respondent has. enhanced 400% tax in some of the business which is absolutely illegal and law does not permit this kind of enhancement in taxes, maximum enhancement of taxes can be modified just 10% each year with the prior approval of the house of the committee or the Government but this procedure was not adopted by respondent No.3. Therefore, impugned notification is not sustainable in the eyes of law. He further submits that impugned notification is also hit by Article 25 of the Constitution as the aforesaid heavy taxes were not imposed in other cities qua commodities mentioned in the notification.

2. Learned Additional Advocate‑General submits that writ petition is not maintainable as the petitioner has alternative remedy to agitate the matter under the provisions of the Punjab Local Council Ordinance, 1979 and rules framed thereunder before the Deputy Commissioner, Toba Tek Singh. He further, submits that the impugned notification was issued by respondent No.3 after observing all legal formalities prescribed under the provisions of the Punjab Local Government Ordinance and rules framed thereunder. He further submits that tax proposal and programmes for invitation of objections and suggestions from the public/citizens of Kamalia was got published in the National News Paper "Din" on 12‑4‑1998 as is evident from Annexure "R/1" attached with the report and parawise comments filed by the respondents. No objection from public was received within the stipulated period. The tax proposal was considered by the Sub‑Committee constituted for the purpose, and thereafter, respondent No.3 issued impugned notification and amended rates of tax. He further submits that respondent Municipal Committee forwarded the draft notification for imposing taxes/fees to the respondent No. l vide Municipal Committee letter. dated 27‑5‑1998 as is evident from Annexure "R/2" attached with the report and parawise comments. Respondent No.1 forwarded the notification after its approval to the Superintendent Government Printing Press Punjab, Lahore for publication ire the official Gazette vide letter, dated 15‑6‑1998 as is evident from Annexure "R/3" attached with the writ petition. He further submits that respondent No.3 has full powers of the house under the rules after dissolution of elected Local Council and appointment of an officer as Administrator, by the Government. The Administrator acted in accordance with the provisions of law while issuing the impugned notification and modifying the tax structure of the committee. The Municipal Committee also leased out the collection rights of this tax at the rate notified in the impugned notification. The Municipal Committee collected the tax according to the rules prescribed in the impugned notification.

3. Learned counsel for the petitioner in rebuttal submits that preliminary objection raised by learned A.A.‑G. is not sustainable as the appeal provided under the law is not efficacious and the writ petitions were entertained by this Court. 1n support of his contention he relied upon the following judgments: Glaxo Laboratories case 1991 CLC 354 and Rauf Trading Company Ltd.'s case 1990 CLC 1732.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. In case the contents of the writ petitions 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 questions of fact in a Constitutional jurisdiction as per principle laid down by the Honourable Supreme Court in Muhammad Younis's case 1993 SCMR

618. It is admitted fact that petitioner has alternative remedy before the Deputy Commissioner concerned under the provisions of the Punjab Local Government Ordinance and rules framed thereunder. Therefore, writ petition is not maintainable. In arriving to this conclusion 1 am fortified by the following judgments:‑‑ Raja Muhammad Ramzan's case 1994 SCMR 1484, Raja Muhammad Ramzan's case 1994 MLD 930, ICI Pakistan's case 1993 MLD 32, Kh. Abdul Waheed's case PLJ 1978 Lah. 253 and Muhammad Ismail's case PLD 1946 SC

246. The judgments cited by the learned counsel , for the petitioner are distinguished on 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 these with observations. H.B.T./R‑46/L Petition dismissed.