MUHAMMAD NAWAZ ABBASI J.- This Intra Court Appeal has been directed against the Judgment dated 16.12.1992 passed by the learned Single Judge in Chamber whereby a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed by the Flour Mills Association (hereinafter/called appellant), questioning the validity of imposition of Exit/Export Tax on flour produced by the Flour Mills happened to be located within the territorial limits of Zila Council, Multan being illegal and without lawful authority has been dismissed.
2. The Government of Punjab in exercise of its power under Sections 137, 144 and 167 read with second schedule of the Punjab Local Government Ordinance (VI) of 1979 framed Punjab Zila Council (Export Tax) Rules 1990 to enforce Zila Council Export Tax through model schedule issued vide Notification dated 13.8.1990 containing various items of goods leviable Zila Council Export Tax.
The item of flour was also included in the schedule to be taxable at the specified rate given therein.
However, through at the specified rate given therein. However, through subsequent notification dated 26.6.1990, the items of 'flour' and 'maida' were excluded from the schedule for the purpose of levy of Export Tax.
3. The case of the appellant before the Single Bench was that after deletion of item of flour from the schedule, Zila Council was not empowered to charge/levy Export/Exit Tax on the flour produced by the Flour Mills located within the territorial limits of Zila Council. The learned Single Bench dismissed the writ petition maintaining that the Zila Council was powerless to impose the Tax in question under the scheme of law with the observation that the levy/imposition of Export Tax being challengeable through an appeal before the Divisional Commissioner under Punjab Local Councils (Appeal) Rules, 1980, the writ petition was not maintainable.
4. Syed Tassadaq Hussain, learned Senior Additional Advocate General appearing on behalf of respondents No. 2 and 3 raising the preliminary objection regarding the competency of this Intra Court Appeal contended that the remedy of appeal before the Commissioner having been provided against original order impugned in the writ petition under Punjab Local Councils (Appeal)
Rules 1980, an Intra Court Appeal before this Court-against the order of the learned Single Judge in Chamber is barred by virtue of Section 3 of the. Law Reforms Act, 1975. He argued that not only the Intra Court Appeal but writ petition was also not competent.
5. The learned counsel for the appellant in reply to the objection argued that the Zila Council Export/Exit Tax is governed by Zila Councils (Export Tax) Rules, 1990 providing no remedy of appeal or revision before any authority hence the only remedy availble to the petitioner was to invoke the constitutional Jurisdiction of this Court, he contends that the authorities in the heirarchy cannot be expected to give independent Judgment and the remedy of appeal/revision if any is only a formality to be fulfilled with no useful purpose. He placing reliance on Zila Council Sheikhupura through its Chairman Vs. M/S Mian Tyre and Rubber Co.(Pvt) Limited Lahore Cantt and others (PSC 1994 S.C.213) argued that formal provisions regarding the availability of appeal before an authority watching the interest of Zila Council under the statutory rules shall not be bar under section 3 of the Law Reforms Act, 1975 for this Court to entertain the Intra Court Appeal against the order passed in the writ petition by the learned Single Judge. The learned counsel laid much stress that remedy of appeal having been not expressly provided under the Punjab Local Councils (Export Tax)Rules, 1990, the order impugned in the writ petition was not challengeable through an appeal before the Commissioner under Punjab Local Councils (Appeals) Rules,1980, hence no restriction can be placed on the power of this court of Judicial review, in its constitutional Jurisdiction and the embargo under the Law Reforms Act shall not be applicable to this appeal.
6. The learned counsel challenging the power of Zila Council as contained in sections 137 and 144 read with part II of the Second Schedule of the Punjab Local Government Ordinance (VI) of 1979 on the strength of PLD 1994 S.C.213 referred to above, Rauf Trading Company Ltd. Vs. Faisalabad Municipal Corporation etc (1990 CLC 1732) and Messrs Jullian Housing Dinshaw Trust and other Vs. Income Tax Officer Circular XVIII south Zone, Karachi and others (1992 SCMR.25 PSC) that the levy of Export Tax by the Zila Counsel after deletion of the same from the model schedule published by the Government of Punjab was without lawful authority and of no legal effect.
7. After hearing the. Learned counsel for the parties at length and examination of the relevant provisions of law on the subject, we without proceeding further shall first determine the competency of writ petition and the Intra Court Appeal. Despite the fact that Punjab Local Council (Appeals) Rules, 1980 providing remedy of appeal against the imposition of the Zila Council Export Tax, the appellant probably under this misconception that no appeal having been provided under Punjab Load Council (Export Tax), Rules, 1990 the only remedy available to him was to file a constitutional petition, has filed the writ petition or he cautiously with the presumption that availing of the remedy of appeal would be only a futile exercise with no fruitful result, preferred to invoke the constitutional Jurisdiction of this Court.
Rule 2 of Local Council Appeal) Rules, 1980 provides as under: "Appellate Authority Except as otherwise provided in the Punjab Local Government Ordinance, 1979 or the rules framed thereunder an appeal from an order of the authority specified in Column 1 of Schedule annexed to these rules, shall lie to the authority specified in Column 2 thereof.
The proposition involved in the present case no doubt, has been dealt with by the Honourable Supreme Court of Pakistan in the case titled Zila Council Sheikhupura through Us Chairman Vs. M/S Mian Tyre and Rubber Co (Pvt) Limited Lahore Cantt and others (PSC 1994 S.C.212) but the distinctory feature of that case are. That the order of Learned Single Judge in constitutional petition was challenged through petition for Special leave to appeal under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973 before the honourable Supreme Court of Pakistan whereas in the present case the order is being impugned before us through an Intra-Court Appeal being barred by law. This appeal being not competent, no order on merits can validly be passed by this Court.
8. Additionally the Government under section 156 of the Punjab Local Government Ordinance, 1979 has reserved with it the general supervision and control over the Local Councils to ensure their activities conform to the purpose and provisions of the said ordinance and in that connection the Government has unlimited powers to quash the proceedings, suspend the execution of any resolution passed or order made by the Council, prohibit the doing of anything proposed to be done and requires such action as specified. The Govemment is also empowered to give direction to the Zila Council for carrying out the purpose of the Ordinance. In view of this express rule providing alternate remedy of appeal, the writ petition being not maintainable was bound to be dismissed. Thus the appellant invoking the provisions of section 156 of the Punjab Local Government Ordinance, 1979 could with no difficulty sought the quashment of the order of imposition erf Export Tax on the flour before filing the writ petition before this Court.
9. Having examined the Punjab Local Councils (Appeal) Rules, 1980, It is dear that all orders passed by the authorities under the Punjab Local Government Ordinance, 1979 and rules framed thereunder, are challengeable through an appeal before the authorities mentioned in the schedule attached herewith, hence the arguments that the remedy of appeal having been not provided under Punjab Local Councils (Export Tax) Rules, 1990, the writ petition as well as this I.CA. Is competent is devoid of any force.
10. The Local Councils (Export Tax) Rules 1990, provides the procedure for the assessment and collection of the export tax and not the imposition of the same, therefore, appeal/revision provided under the said rules undoubtedly confines only to the subject of assessment and collection of export tax., Whereas the Punjab Local Councils (Appeal) Rules, 1980, provides appeal against all orders passed under the Punjab Local Government Ordinance, 1979 and the rules or bye-laws framed thereunder except the appeals by the employees of Local Government relating to their service.
Rule 14 of Punjab Zila Council (Export Tax) Rules, 1990 providing the remedy of appeal against the assessm ent made and orders passed thereunder is reproduced here under: Rule 14 -Appeals (1) Notwithstanding any thing contained in the Punjab Local Councils (Appeal)
Rules, 1980 appeals against the assessments made, and orders passed under these rules shall lie before.
(i) The Taxation Officer, if the order is passed by the Tax Clerk or Tax Inspector;
(ii) the chairman, if the order is passed by the Taxation Officer; and
(iii) the Commissioner, if the order is passed by the Chairman.
2. The provisions of the Punjab Local Councils (Appeal) Rules, 1980 shall mutatis mutandis apply to all cases of appeals under the rules. Rule 15 of the ibid Rules provides remedy of revision before the Government.
The review of the Punjab Zila Council (Export Tax) Rules, 1990 and Punjab Zila Council (Appeals)
Rules, 1980 distinguishing the scope of appeal against the assessment of tax and imposition of tax covers the total field.
11. The schedule annexed with the Punjab Zila Councils (Appeals) Rules provides appeal against the order passed by Zila Council, its Chairman or Vice Chairman. A 21a Council under sections 137/138 of the Punjab Local Government Ordinance, 1979 is empowered to impose tax enumerated in the second schedule and a resolution/notification imposing such tax falling within the definition of order passed under the Ordinance shall be appealable before the authority specified therein.
12. Dealing with the question of competency of this Intra-Court Appeal, it shall be necessary to examine section 3 of the Law Reforms Act, 1975 which reads as under:
1. An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in exercise of its original Civil Jurisdiction.
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 Islamic Republic of Pakistan 1973 not being an order made under sub-paragraph (i) of paragraph (b) of that clause, provided that the appeal referred to in this sub-section 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 provides for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.
3. No appeal shall lie under sub-section (1) or sub-section (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
13. The writ petition having been brought before High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the imposition of Export Tax under Punjab Local Govemment Ordinance, 1979 which provides right of appeal before the Commissioner, this Intra- Court Appeal by virtue of proviso to sub-section (2) to section 3 of the Law Reforms Act, 1975 against the order of the learned Single Bench is not competent.
14. We, having upheld the preliminary objection regarding the maintainability of writ petition and competency of this Intra-Court Appeal, without entering into the question regarding the validity of imposition of Export Tax on flour by Zila Council Multan, in this particular case, dismiss this appeal being incompetent.