1999SCMR 1357 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.

This appeal by leave is directed against the judgment of the learned Division Bench of the Lahore High Court, Rawalpindi Bench, dated 5-6-1994 passed in Intra-Court Appeal No.58 of 1978 whereby the learned Division Bench of the High Court set aside the order of dismissal in limine of Writ Petition No.4043 of 1977 passed by the learned Single Judge.

2. The respondent-Company is manufacturer of woollen cloth and blankets. By notification, dated 6-12-1976 the export tax was levied by the appellants on woollen cloth and blankets. The respondent-Company filed Writ Petition No.4043 of 1977 in the Lahore High Court, Lahore wherein the legality and propriety of the said notification had been challenged inter alia on the ground that the relevant Rules were not adhered to before levy of the tax.

3. The learned Single Judge who was seized of the writ petition repelled the contention raised on behalf of the respondent that the margin of 30 days for filing objections under the Rules to the proposal of levy of export tax on the woollen cloth and blankets was not made available to him and held that notwithstanding the mistake pointed out by the learned counsel it could be ignored in view of "the clear recital in the opening two lines of public notice advertising that objections could be filed within thirty days of its publication". It was further found that no objections at all, either in time or belated were filed by the respondent. The objection as to the rationale of the duty levied and its mechanical imposition was also found to be devoid of substance.

4. On the contrary, the learned Division Bench while accepting the I.C.A. did not entertain the preliminary objection as to the competence of appeal under proviso to section 3(2) of the Law Reforms Ordinance (XII of 1972) that Intra Court Appeal was barred only if the law provided an appeal, a revision or a review and that the learned counsel for the appellants had not been able to persuade the learned Judges that mere petition under section 144 of the Punjab Local Government Act, 1975 would be equated with an appeal, revision or review. It was further observed that an order could not also be appealed against under section 219 of the Act of 1975 whereas the impugned notification in general terms was not appealable for imposition of tax as such. On merit, it was observed that the provision that the aggrieved person could file objections within thirty days was not due compliance of rule 4(2)(a) and (b) of the West Pakistan Local Council (Imposition of Taxes) Rules, 1961 (hereinafter called as the Rules) inasmuch as it was mandatory to fix date after expiry of thirty days time as the last day for submission of objections and further that the date of hearing should be fixed after the expiry of thirty days aforesaid. This opportunity of hearing, according to the learned Judges, had not been afforded to the respondent thus the levy of export tax was an irregularity and, therefore, the respondent could not have been blamed for its omissions to file objections. The I.-C.A. was thus accepted, the impugned order of the learned Single Judge was set aside and the recovery of the impugned export tax from the respondent for ` the disputed period from 27-5-1977 up to October, 1977 was declared to be `'without lawful authority and of no legal effect.

5. Leave to appeal was granted to consider the following contentions raised on behalf of the appellants:-- "Learned counsel for petitioners contended that the learned Judges of the Lahore High Court wrongly repelled the objection raised by the petitioners regarding maintainability of the Intra-Court Appeal. It was further contended that section 166 of the Punjab Local Government Ordinance, 1979 provides right of appeal to the aggrieved person against the order of the Local Council. Similarly, section 143 of the aforementioned Ordinance provides right to file a petition against valuation and assessment of taxes. He added that the respondent neither filed objection petition nor availed opportunity of filing appeal before the competent Authority; Intra-Court Appeal was not competent as envisaged by proviso to section 3 of Laws of Reforms Ordinance XII of 1972 which stipulates that Intra-Court Appeal would not lie when any proceedings in which the law applicable provided for at least one appeal, one revision or one review to any Court, Tribunal or Authority against the original order. "'

6. Syed Muhammad Ayub Bokhari, Advocate Supreme Court in support of this appeal reiterated the objection which had been raised before the I.-C.A. Bench with regard to the maintainability of the appeal on the ground that it was hit by the proviso to subsection (2) of section 3 of the Law Reforms Ordinance (XII of 1972) which provides that an appeal-- "shall not be available or competent if the application brought before the High Court under Article 199 of the Constitution arises out of any proceedings in which the law applicable provided for at least one appeal (or one revision or one review) to any Court, Tribunal or authority against the original order. "

7. Mr. Iftikhar Ahmad Dar, learned Advocate Supreme Court appearing on behalf of the respondent, urged that neither an appeal nor a revision nor a review had been provided for under the relevant law, therefore, the Intra-Court Appeal was not barred.

8. Any person aggrieved by an order passed by a local council or its 1 Chairman in pursuance of Article 86 of the Basic Democracies Order, 1959 and rule 2 of the Local Councils Appeal Rules framed thereunder may file an appeal to the Controlling Authority. Similarly an analogous provision for appeal has been provided under section 166 of Punjab Local Government Ordinance (Punjab Ordinance VI of 1979).

9. Almost an identical objection raised before the learned Division Beach of Karachi High Court in Iqan Ahmad Khurram and others v. Government of Pakistan and others (PLD 1979 Kar. 610) relied on two precedents of Fazal Elahi Ejaz and 20 others v. The Government of Punjab and 13 others (PLD 1977 Lah. 49) and Sher Muhammad v. Director-General Pakistan Telephone DepIrtment and others (PLD 1979 Kar. 1) and repelled it as under:-- "If a rule is brought in substance of an order notified in the manner required for an order, for all practicable purposes including for an appeal it could be treated as an order. "

10. We are inclined to approve the principle enunciated in Iqan` Ahmad Khurram's case (supra) and hold that the impugned notification, or a petition provided for under section 144 of the Punjab Local Government j Act (Punjab Act XXXIV of 1975) in substance was an "order" for levy of export tax and was, therefore, appealable to the Controlling Authority under Article 86 of the Basic Democracies Order, 1959 and section 219 of the Punjab Act XXXIV of 1975 and rule 2 of the Local Council Appeal Rules, 1961.

11. The learned Judges in the L-C.A. Bench had, therefore, legally erred to hold that under "section 219 of the Punjab Local Government Act, 1975" only an "order" could be appealed against whereas a notification in general terms for imposition of new taxes or making modification in the rates of taxes being not an 'order' against an assessee was not appealable, therefore, an appeal I.-C.A. was maintainable".

12. In view of what has been discussed above, we accept the appeal, set aside the impugned judgment of I.-C.A. Bench and restore that of the learned Single Bench, dated 6-3-1978. H.B.T./D-15/S Appeal accepted