' NASIR-UL-MULK, J.---The petitioner, a resident of Charsadda obtained on lease an area of 1597.1 acres of land near village Gumbatai in Muhmand Agency in the Federally Administered Tribal Area, from FATA Development Corporation by an agreement dated 14-9-1992 for extracting marbles from the mines located in the area. The mines were exploited and the marble blocks extracted therefrom were transported and sold to the Marble Factories situated in different parts of the country. The District Council, Charsadda levied and collected export tax on these marble blocks when transported out of the limits of District Charsadda which adjoins Mohmand Agency. The petitioner has questioned the legality of the levy of the export tax on the marble on the ground that it is not the produce of the District of Charsadda and has made two-fold prayers; firstly, that the export tax be declared illegal and without lawful authority and secondly, that the petitioner is entitled to a refund of the tax already paid since 1-1-1992. In their comments to the writ petition, the District Council, Charsadda, defending their authority to collect the export tax, pleaded that the petitioner was liable to pay the tax as he was a resident of Charsadda and that the mines from which the marbles were extracted fell within the limits of District Charsadda. As for the latter plea, the learned counsel appearing for the District Council, Charsadda, conceded at the Bar that the mines in question were located in Mohmand Agency and not within District Charsadda. Even otherwise the agreement entered into by the petitioner with FATA Development Corporation for the lease of mines clearly indicates that the mines are situated in Mohmand Agency. Furthermore, had the mines been located in the District of Charsadda, the lease thereof would have been obtained from the Government of N.-W.F.P. And not FATA Development Corporation.
2. Mr. Muhammad Ajmal Khan, the learned counsel for the petitioner, referring to Rule 12 of the N.- W.F.P. District Councils Rules, 1994, submitted that export tax could be levied by the District Council either on the goods produced within the District or if they are kept while in transit within the District for a period of more than 24 hours without a valid permit extending the transit period, whereas the marbles transported by the petitioner out of the limits of the Charsadda District are neither the produce of that District nor are they dumped in it for more than 24 hours, and that it takes just half an hour for a truck carrying the marble blocks from Mohmand Agency to pass through District of Charsadda.
3. Mr. Jehanzeb Rahim, Barrister, representing the District Council, as stated above did not dispute the petitioner's claim about the location of the mines but argued that no tax post or barrier exist between Mohmand Agency and District Charsadda and therefore no transit pass could be issued in respect of goods entering District Charsadda from Mohmand Agency for determining whether the goods left the limits of District Charsadda within 24 hours as required by the Rules. It was pleaded at the Bar, and in the comments filed by the District Council, that the tax barriers earlier installed at Peer Qilla had been later removed by the local inhabitants.
4. The Local Councils throughout the Province of N.-W.F.P. Have been empowered to levy taxes under section 134 of the N.-W.F.P. Local Government Ordinance, 1979 on such items as are enumerated in Schedule II annexed to the Ordinance. Part II of the Second Schedule enumerates the taxes that can be collected by the District Council and under its item No,7 is authorised to levy fees for the export of goods and animals from the Districts. The Provincial Government in its powers conferred upon it under section 172 read with section 134 and item No,7 of Part II of the Second Schedule of the Ordinance framed rules to regulate the levy and collection of export tax by the District Council. Export has been defined in clause (f) of Rule II of the Rules to mean "Export from the District Council limits". The levy of export tax and the procedure for its collection by the District Council has been laid down in Rule 12. For the purpose of determining the legality of the export tax in question it will be appropriate to reproduce Rule 12, which reads: "12.---(1) "Every person exporting goods liable to the tax either by rail or road or air, shall present such goods at the tax post through which the goods are exported.
(2) In case the goods are in transit from other Councils the person exporting the goods shall request the Tax Moharrir for a transit pass at the time of arrival at tax post of the Council concerned.
(3) On representation of the goods to tax post for a transit pass under sub-rule (2) the Tax Clerk shall promptly issue such transit pass in Form I.
(4) The goods in transit shall be exported from the limits of the District Council within 24 hours.
(5) The time limit in genuine cases may be extended up to any limit by the Taxation Officer."
The rule empowers the District Council to collect export tax on two categories of goods: those produced in the District and exported out and those in transit but are kept in the District beyond twenty-four hours without an extension by the Taxation Officer in the transit period.
' For reasons stated in para. (1) above the mines from which the petitioner extracted the marble block lay in Mohmand Agency. Not being the produce of District Charsadda the marbles in question did not fall within the first category of goods on which the council could levy export tax. As for the transit period, there is no evidence, nor is it the case of the respondents, that the marble blocks were ever kept in the District's territory for more than twenty-four hours. The argument that there was no tax post to issue transit pass at the border between Mohmand Agency and Charsadda District is of no avail to the respondents. Installation of such post is the sole responsibility of the District Council and the petitioner could not be made to suffer unduly for the lapse of the Council. This argument is also fallacious, for if accepted, it will entitle the Charsadda District Council to collect tax on all goods in transit from Mohmand Agency as if they were the produce of the District, simply because of the failure of the Council to maintain a post for issuance of transit pass. Surely the law does not permit anyone to benefit from his non-feasance at the expense of another.
' It follows that the law does not empower the District Council, Charsadda, Respondent No,1, to levy and collect export tax on the marble blocks transported by the petitioner from Mohmand Agency through District Charsadda. We are however, unable to grant to the petitioner the second relief, pertaining to the refund of export tax already collected. The petitioner has neither specified the amount that he seeks the refund of nor has he produced the receipts of the tax paid so far by him.
In any case determination of the amount would require recording of evidence, which cannot be done in a Constitutional petition.
' We will therefore partially allow the petition and declare that the export tax levied by respondent No,1 on the marble blocks of the petitioner transported from Mohmand Agency is illegal and without lawful authority and therefore of no effect and the petitioners are not liable to pay the same. The parties are left to bear their own costs.