' Qamar-uz-Zaman herein petitioner has prayed for the following reliefs.
(a) A declaration be made to the effect that the District Council, Tahir and Co. Contractors/lessees of the District Council, Bahawalpur are not entitled to collect export tax on exported goods of the petitioner i,e. Khal banola, at the different rates than the rates mentioned in the Schedule, that respondents Nos. 1 to 4 are bound to levy tax at the rates strictly in accordance with the Schedule.
(b) That the respondents are bound to comply with the Schedule in collection of export tax.
(c) That the respondents be restrained from collecting export tax on khal banola at the rate of more than Rs,100 per truck .
2. The facts in this petition are not in dispute. A few necessary uncontested facts are: that Qamar- uz-Zaman, herein petitioner is dealing in the business of cotton seeds and cotton cakes, exports these goods from Bahawalpur to other, districts. Respondent No, 1 is the District Council Bahawalpur while Messrs Tahir and Co. And Iftekhar and Co, respondents Nos. 3 and 4, are the contractors/lessees of the District Council for the collection of export tax.
3. There is a dispute between the parties over the charging of export tax in respect of a truck carrying the aforesaid goods. The dispute arises from the different interpretation of the meaning of the word "truck' contained in the sanctioned schedule of Export Tax notified by the District Council for the year 1989-90. Neither the validity of Schedule nor the power of District Council to notify the schedule is challenged under section 136 of Punjab Local Government Ordinance, 1979 (Punjab Ordinance No, VI of 1979) (hereinafter referred to as ordinance).
4. Learned counsel for the petitioner contended that respondents Nos. 3 and 4 have charged from the petitioner Rs,200 per truck as export tax, carrying cotton-seeds and cotton cakes in violation of the rate of tax given in the schedule which is Rs,100 per truck. It is contended that respondents Nos.
1, 2, 3 and 4 have no authority to collect tax more than provided in the charging statute. It was argued that the statute or rules relating to tax are to be narrowly construed and a person is to be charged tax if he comes within the mischief of words of Schedule. Reliance was placed on Messrs Khyber Electric Lamps Manufacturing Limited Pabbi, District Peshawar through its Managing Director and another v. Chairman, District Council, Peshawar and another 1986 CLC 533, Government of West Pakistan and another v. Wall Muhammad Habib and another PLD 1961 SC 215 and Messrs Highway Petroleum Service (Regd.), Lahore v. Islamic Republic of Pakistan and another PLD 1977 Lah.
797.
5. Learned counsel for the District Council did not dispute this argument and submitted that the respondents Nos. 3 and 4 were under a statutory duty to. Collect the tax in accordance with the Schedule.
6. The learned counsel for respondent No, 3 and for Contractor resolutely supported his right of collecting export tax from petitioner on the basis of weight in a carrier and not on the basis of a truck as a carrier. Elaborating his point he raised following points:--
(a) It was contended that the defamation of word truck was neither given in the Ordinance nor given in the schedule. In the context of the absence of definition of word 'truck, the word had to be given the same meanings which were given to it under sections 76 and 103 of Punjab Motor Vehicles Ordinance by the principle of reference. Reliance was placed upon the principle of interpretation given in the Construction of Statutes by Craies Interpretation Authority 1971 Edition, at page 134. Reliance was also placed on Messrs Universal Brushes Ltd. v. The Superintendent Central Excise and Land Customs and two others PLD 1985 Kar.
132.
(b) It was argued that the truck in schedule meant a weight of 270 mounds. On the basis of this argument, it was argued that the petitioner was under a liability to pay export tax on the basis of weightage.
(c) It was then suggested that remedy by way of petition under Constitutional jurisdiction was barred under Article 199 of the Constitution of Pakistan in view of existence of remedy under Sections 153, 156 and 157 of the Ordinance. It was, therefore, urged that the relief under Article 199 of the Constitution of Islamic Republic of Pakistan was misconceived.
(d) It was lastly urged that the petition merited to be dismissed on the short ground that if the writ was issued it would encourage the petitioner to carry more goods in trucks than permitted by the provisions of the Motor Vehicles Ordinance and so will contravene the provisions of the statute entailing penal consequences. Reliance was placed for this proposition on the case of M/s. Universal Brushes Ltd. PLD 1985 Kar.
132.
8. I have heard both the parties and examined their contentions. The stand of petitioner and District Council in respect of interpretation of word "truck" in schedule is same while interpretation given by the contractor is different. In the context of aforesaid stand the following questions call for determination in this petition.
(i) Whether the District Council/Contractor is entitled to charge export tax on the basis of the definition of "truck" contained in Motor Vehicles Ordinance?
(ii) Whether the petitioner is barred by the principle of another remedy under Sections 153, 156 and 157 of the Punjab Local Government Ordinance?
(iii) Whether the petition is bound to be dismissed on the doctrine that it will lead to contravention of the provisions of Motor Vehicles Ordinance by the petitioner.
' I proceed to determine these questions in seriatim.
7. Before I proceed to examine the first question it will be appropriate to examine the applicable law. The relevant entry in the schedule is given as below. {{URDU TEXT}}
8. It is needless to reproduce Section 137 of the Ordinance as no challenge has been made to the authority of the District Council to levy the export tax.
9. It is well settled principle of the construction of statutes that if a statute imposes a tax or professes to levy a charge, the rule is that such statute is to be given a narrow construction. The charge is to be made strictly within the letter of the law. Neither equitable construction nor the principle of beneficial construction can be invoked. There are a number of authorities in support of the aforenoted proposition. Some of them are being referred for the purpose of understanding the respective contentions of the parties. Craies in his celebrated work (Statute Law) sums up this principle in the following manner:-- "If a statute professes to impose a charge "the rule" said the Judicial Committee in Oriental Bank v.
Wright (1880) 5 (App. Cas. 842, 856) is that the intention to impose a charge upon a subject must be shown by clear and unambigous language (1900) A.C. 323, 337. In Dock Co. At Kingston upon Hull v. Browne (1831)2 B & Ad. 43, 58) Lord Tenterden, C.J. Said: "These rates are a tax upon the subject and it is a sound general rule that a tax shall not be considered to be imposed (or, at least, not for the benefit of a subject) without a plain declaration of the legislature to impose it. This accords with the view expressed by Parke B. In Re-Micklethwait (1855) 11 Ex.452, 456). It is a well- established rule that the subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to the natural construction of its words. In Partington v. Att.- Gen,(1869) L.R.4 H.L.100, 122) Lord Gairns said: "I am not at all sure that, in a case of this kind a fiscal case-form is not amply sufficient: because, as I understand the principle of all fiscal legislation, it is this: if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible, in any statute, what is called an equitable construction, certainly such a construction is not admissible in a taxing statute, where you simply adhere to the words of the statute.
10. In Commissioner of Agricultural Income Tax case 1973 SCMR 445 it was held that "....But in determining whether or not a particular matter comes within a taxing statute, it is only the letter of the law which must be looked to. There is ample authority for the proposition that in a fiscal case, form is of primary importance, the principle being that if the person sought to be taxed comes within the letter of the law, he must be taxed, however, great a hardship may thereby be involved but on the other hand if the Crown cannot bring the subject within the letter of the law he is free, however apparent it may be that his case is within what might be called in spirit of the law.
As was said by Rowlatt, J. In Cap Brandy Syndicate v. Inland Revenue Commissioner (1921) 1 K.B.64.
"In a Taxing Act one has to look merely at what is clearly said. There is no room for any intendment.
There is no equity about tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used."
' In Tenant v. Smith 1982 A C 150 Lord Halsbury said:-- "In a Taxing Act it is impossible, I believe to assume any intention, any governing purpose in the Act, to do more than take such tax as the statute imposes. Cases, therefore, under the Taxing Acts always resolve themselves into the question whether or not the words of the Act have reached the alleged subject of Taxation."
11. Lt.-Col. Nawabzada Muhammad Amir Khan v. The Collector of Estate Duty etc. (PLD 1961 SC 119) proceeds on different facts. It relates to a case of realization of duty and not levying of the duty.
12. The principle of narrow and strict construction has been reiterated in Nawabzada Muhammad Amir Khan's case and in Messrs Highway Petroleum Service (Regd.), Lahore v. Islamic Republic of Pakistan and another PLD 1977 Lah.
797.
13. Guided by this salutary principle, I have no doubt in my mind that the meaning of truck given in the different provisions of Motor Vehicles Ordinance cannot be engrafted into the Schedule of Export Tax. In Schedule no meaning can be given to word 'truck' by the principle of reference. The Schedule being statute dealing with the tax cannot be given such extended interpretation. I, therefore, hold that a person is to be charged tax only if he comes within the clear view of the word used in the Schedule itself. The truck in the Schedule means a truck given in the ordinary dictionary.
The meanings given in the Chambers Dictionary latest edition are as follows:-- "a small or solid wheel: an open railway wagon for goods: a trolley: a Bogie: a low flat barrow: a small two-wheeled barrow with a turned-up front: a lorry: a cap at the top of a mast or flagstaff vt.
To convey by truck."
' Therefore, truck in Schedule means a vehicle and does not mean the quantity of weight it is carrying .
14. Before reverting to the second argument of learned counsel for the respondent that petition merits to fail on account of availability of another adequate and efficacious remedy under sections 153, 156, 157 of Ordinance, it is appropriate to examine the relevant provisions. Sections 153, 156 and 157 of the Ordinance are as follows:--
153. Supervision of local councils--Government shall exercise general supervision and control over the local councils in order to ensure that their activities conform to the provisions of the Ordinance.
156. Safeguards. If, in the opinion of Government, anything done or intended to be done by or on behalf of a local council or committee is not in conformity with law or is in any way against public interest, Government for reasons to be recorded may--
(a) quash the proceedings:
(b) suspend the execution of any resolution passed or order made by the local council or committee and
(c) prohibit the doing of anything proposed to be done.
157. Powers to give directions.--(1) Government may direct any local council or committee or any person or authority responsible thereto, to take within such period as may be specified such action as may be necessary for carrying out the purpose of the Ordinance.
(2) Where after due enquiry, Government is satisfied that local council or committee or person or authority has failed to comply with any direction made under subsection (1), Government may appoint a person or persons to give effect to such direction and may further direct that the expenses incurred in connection therewith shall be borne by the local council or committee.
Explanation: For purposes of sections 156 and 157, "Committee means Divisional Coordination committee or District Coordination Committee constituted under the Ordinance.".
15. The bare analysis of section 153 indicates that the Government has power of supervision or control over the activities of Local Council in order to ensure that their activities do not travel beyond the sphere of provisions of the Ordinance. Section 156 empowers the Government to quash the proceedings, suspend the execution of any resolution passed or made by local council or committee or prohibit the doing of anything if it is in conflict with the provisions of the Ordinance, while Section 157 empowers the Government to issue directions necessary for the purpose of carrying out Ordinance to the Local Council. The aforesaid powers are of supervisory, corrective nature and intended to ensure that the activities of the Local Council shall remain within the sphere of Ordinance.
16. As regards the aforenoted objection, it is to be noticed the objection is built upon the principle of exhaustion that no one is entitled to invoke the constitutional jurisdiction of the Court for supposed or threatened injuries or any order until the affected person has exhausted the remedies provided to him under the law. This rule that High Court will not entertain a writ petition, if the other remedies are available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. This principle of exhaustion has been examined by the Supreme Court in a number of cases. In The Murree Brewery Co. Ltd. v. Pakistan through The Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 it was held that:-- "It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as 'the C.D.A.') to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under Section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others PLD 1961 SC 119 that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well-recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority."
' The same principle was followed in Syed Ali Abbas and others v. Vishan Singh and others PLD 1967 SC 294 where it has been held that:- " There had been in the relevant respect, an excess of jurisdiction, and the affected parties could not be penalised for not throwing themselves again on the mercy of the authorities who were responsible for such excess. The proper and indeed the only authority which possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution. In order to provide that their right was allowed to the appellants, the proper order of the High Court to have made was to have directed that the Custodian himself should entertain and hear the appeal that had been presented to him."
' The same principle was also reiterated in Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37 and Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCM R 395.
' The observations in Abdul Hai v. The Administrator, Hyderabad Municipal Corporation, Hyderabadand another PLD 1985 Kar. 319 are worth repetition which are as under:-- "For more than one reason, we are not inclined to sustain the above objection as to the maintainability of the above petition. Firstly, the petition was filed at the time when there was no right of an election petition available to the petitioner, and, therefore, the petitioner had no alternate adequate remedy and, hence, the petition was competently filed. It may be pointed out that in the above-cited Supreme Court case of Sadruddin Ansari PLD 1967 SC 569 the right of an election petition was available to the petitioner under rule 7 of the relevant rules but its scope was limited and during the pendency of the petition scope of the above rule 7 was extended by substituting above rule 7 which amendment was considered by the Supreme Court as procedural so as to make it applicable to the pending case. But the instant case is on a higher pedestal as a right to file an election petition, which is a substantive law and not procedural, has been conferred during the pendency of the petition as here in above pointed out. Secondly, no disputed question of fact is, involved. The controversy centres around the construction of the rejected ballot paper.
Thirdly, there seems to be unanimity of view among the superior Courts on the point in issue."
17. Even this objection is to be examined from another angle. Only dispute between the parties in this case is in respect of interpretation of word "truck" given in schedule. There can be no dispute that the task of the interpretation is within the exclusive domain of the Courts.
18. The ratio emerging from these principles is that the doctrine of exhaustion contained in Article 199 of the Constitution is not absolute bar to adjudication of a petition if the other remedy is available against the impugned order. If the Court comes to the conclusion that the order under attack is passed in excess of authority or is totally destitute of authority, it had the powers to come to the relief of effected party and strike down the order in order to keep the different authorities within the sphere of the law.
19. Our Governments are under the Constitution. The various functionaries of the State derive their powers from the Constitution. The function of the Government under the Constitution are apportioned. To the legislature has been given the duty of making laws, to the Executive the duty of executing them, to judiciary the duty of interpreting and applying them in cases brought before Courts. The general rule is that neither Department may encroach the province of other and nor may control, direct or restrain the action of other. The power of ascertaining and declaring law applicable, resides exclusively with the Courts and, therefore, in view of that peculiar circumstance of this case, the principle of another adequate remedy is not attracted. Argument of the learned counsel for respondents Nos.3 and 4 is, therefore, found to be totally untenable.
19. Now the only point left is whether the petition should not be accepted on the premises that it will lead to violation of the provisions of Motor Vehicles Ordinance. The argument is devoid of any rational basis. The duties and obligations in Motor Vehicles Ordinance are clearly spelt out, machinery to check the violator under Motor Vehicles Ordinance is specifically provided. I, therefore, see no reason in this argument.
20. After carefully examining the arguments of the parties and the facts of the case, I am clear in my mind that respondents Nos. 3 and 4 are contractors for the collection of export tax under the Punjab Local Government Ordinance. They are under statutory duty to collect the tax within the letter of the law and the petitioner is only liable to pay the export tax within the schedule, therefore, the foundation for the issuance of writ in nature of mandamus is made out. Whenever, the Court has come to conclusion that a person bound to perform a duty under the statute is not doing so, the Court has the authority to compel him to perform the duty cast upon him by the statute. I accordingly accept the petition and grant the requested reliefs in the petition. There shall be no order as to costs.