' SAYED ZAHID HUSSAIN, J.---Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, qua the validity of section 7 of the Punjab Finance Act, 1997, whereby tax on luxury vehicles was levied, was filed by the petitioner, which was dismissed by a learned Judge of the Lahore High Court, Rawalpindi Bench on 11-11-2003. An appeal was filed under section 3 of the Law Reforms Ordinance, 1972 thereagainst (I.-C.A. No,261/2003) which was dismissed on 11-2-2004 by a learned Division Bench of the said Court by invoking the proviso to section 3(2) of the Law Reforms Ordinance, 1972 as Rule 9 of the Tax on Luxury Vehicles Rules, 1997 provided an appeal to the Director, Excise & Taxation. On a petition filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, thereagainst leave to appeal was granted on 26-4-2004, which order reads as follows:-- "This petition for leave to appeal is directed against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 11-2-2004, whereby I.-C.A. No,261/2003 for the petitioner was dismissed being incompetent in view of proviso of cection 3(2) of the Law Reforms Ordinance, 1972.
' Learned counsel for the petitioner contended that the impugned judgment is not sustainable as the Tax on Luxury Vehicles Rules, 1997 (hereinafter to be called as the Rules) on which reliance was placed by the High Court were mere draft Rules and were notified for the first time vide Notification No, S.O. Tax (E&T)/3/7(97) dated 234-1998 which were declared to be ultra vires as observed in Messrs Raja Industries Ltd. v. Government of Punjab and Others (1999 M LD 3141), whereafter new Rules were published through S.O. Tax (E&T)/17(97) LV dated 6-10-1999. He submitted that aforesaid Rules were not applicable to the petitioner's case as, when the petitioner filed the writ petition in 1997, there were no Rules in field and right of ICA was available. He further submitted that a right which was available at the time of filing of the writ petition would not cease on the publication of the Rules or on the dismissal of the writ petition. He urged that right of appeal did not accrue on the dismissal of the writ petition but it persisted from the date of the institution of the writ petition. He also submitted that imported vehicles were exempted from payment of all duties/tax etc. Under clause 13.5 of the Petroleum Concession Agreement.
' The above contentions need consideration as such we grant leave to appeal to consider inter alia the above contentions.
' Learned counsel stated that the petitioner is ready to deposit the payable duties/taxes etc. And shall deposit the same within a month.
' The petitioner may deposit the payable duties/taxes which shall, of course, be subject to the decision of the appeals. The Bank guarantee be released after payment of all dues by the petitioner."
2. Mr. Ali Sibtain Fazli, Advocate Supreme Court, the learned counsel for the appellant contends that at the time when the writ petition was filed before the High Court, there was no law/rule providing departmental appeal. It is contended that proviso .To section 3(2) of the Law Reforms Ordinance, 1972 was neither attracted nor could be invoked and the appeal was maintainable before the High Court under section 3 of the Law Reforms Ordinance. He cites Federation of Pakistan v. Muhammad Siddiq (1980 SCM R 443); Governor N.W.F.P. And another v. Gul Naras Khan (1987 SCM R 1709) and Muhammad Bashir and 2 others v. Muhammad Firdaus and another (PLD 1988 SC 232), to contend that right of appeal, if was available at the commencement of the lis, later change in law could not destroy or take away the same. It is contended that Rule 9 of the Tax on Luxury Vehicles Rules, 1997 has wrongly been invoked by the learned Division Bench of High Court inasmuch as the said Rules which were notified on 23-4-1998 had been declared ultra vires by same Court as is evident from Messrs Raja Industries Ltd. Government of Punjab and Others (1999 M LD 3141) supra.
3. The learned Additional Advocate-General, Punjab, has made his earnest endeavour to support the judgment of the learned Division Bench. It is contended that even an alternate remedy in the form of appeal was available to the petitioner under the latter Rules i,e, Rule 9 of the Tax on Luxury Vehicles Rules, 1999, notified on 6-10-1999, which could be availed by the appellant.
4. In order to consider the respective contentions in the context of the controversy i,e, the maintainability of Intra-Court Appeal in the High Court, it may be noted that by means of section 7 of the Punjab Finance Act, 1997, tax on luxury vehicles was levied, of which the petitioner felt aggrieved and filed petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Assailing its validity it was prayed that "Section 7 of the Punjab Finance Act, 1997 may kindly be declared to be ultra vires of the Constitution, without lawful authority and of no legal effect. It is further prayed that the respondents may kindly be directed to issue the registration books of the petitioner's vehicles in connection therewith without payment of "Luxury Vehicle Tax". As is noticeable from the prayer made and relief claimed by the appellant, the very vires and validity of law i,e, section 7 of the Punjab Finance Act, 1997 was assailed and such a declaration was sought from the High Court in its constitutional jurisdiction as a declaration of the nature could not be granted by any other subordinate authority. The first draft rules, which were notified on 23-4-1998 were declared ultra vires by the High Court whereafter the Rules of 1999 i,e, Tax on Luxury Vehicle Rules, 1999, were notified on 6-10-1999. Before that the petition (W.P. No,2689/1997) was pending before the High Court. It may be observed that under subsection (2) of section 3 of the Law Reforms Ordinance, 1972 the remedy in the form of appeal was provided, which reads as follows:-- S.3(2) "An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceeding 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."
5. From the plain reading of the proviso it is evident that the word "brought" used in the proviso has reference to institution of the petition and can be equated with the "filing" of the petition before the High Court. Meaning thereby that if at the time of bringing/filing of the petition before the High Court there was a law providing the remedy of appeal etc, appeal before the Bench of two or more Judges of the High Court from the order of single Judge of that Court would not lie. The position in the instant case however is that the petition was filed by the appellant under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 before the High Court in November, 1997 whereas Rules framed under subsection (5) of the section 7 of the Punjab Finance Act, 1997, which provided the remedy of appeal were notified on 6-10-1999. Thus, when the petition was brought before the High Court, there. Was no law providing remedy of appeal to the petitioner. Another reason which makes the proviso to subsection (2) of section 3 of Law Reforms Ordinance, inapplicable to the instant matter, is that there had not yet been passed any "original order" which could be made basis for filing of departmental appeal. The relevance and significance of the prayer clause of the petition could also not be lost sight of.
6. It may be mentioned that right of appeal is "the right of entering superior Court and invoking its aid and interposition to redress the error of the Court below, any application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court is an appeal within the ordinary acceptation of the term" it is so stated by Justice (R.) Fazal Karim in "Jurisdiction and Judicial Review" at page 63. The concept that right to avail remedy of appeal if so provided by the law, inheres in the party at the commencement of the proceedings which cannot be destroyed or annihilated except through legislation or abolition of the forum, is well established. In. Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners (PLD 1981 SC 553) the position in law was stated as well settled "that the right of appeal is not a mere matter of procedure, but it is a substantive right; and that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties concerned till the rest of the career of the suit, and that these rights can be taken away only by subsequent enactment, provided it so provides expressly or by necessary intendment, and not otherwise." The same legal position was reiterated in "Haji Muhammad Ibrahim and 3 others v.. Mst. Surrayia-unNisa and 9 others (PLD 1992 SC 637) that "the proposition that institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties concerned till the rest of the career of the suit and that these rights can be taken away only by a subsequent enactment provided it so provides expressly or by necessary intendment and not otherwise." Thus, in the circumstances, the rigours of proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 were not at all attracted to the instant case which could denude the appellant of remedy of appeal or render the appeal as non- maintainable.
7. For the above reasons the view taken by the learned Division Bench of the Lahore High Court, as to the maintainability of the appeal is not sustainable in law. The judgment impugned is set aside.
As a result thereof, No,261/2003, will be deemed pending for its decision in accordance with law.
The appeal is accepted to this extent. The deposit of duties and taxes was ordered to be made subject to decision of the appeal. Since the appeal has been decided on the point of maintainability of Intra Court Appeal before the High Court, which appeal is to be decided now by the High Court on its merits, the deposit so made will be subject to the ultimate decision of the said appeal. No order as to costs.