The petitioners have invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to challenge the impugned notices issued to them by Union Council, No.86. Shalli Gharbi, Tehsil Chishtian, District Bahawalnagar to pay local council tax on the property purchased by them and as detailed in paragraph No.4 of this petition.
2. The main ground urged by the learned counsel for the petitioners was that the Union Council had no jurisdiction to impose the tax on the transfer of immovable property in view of the provisions contained in section 137 of the Punjab Local Government Ordinance, 1979. In this respect, it was submitted that only such items could be subjected to tax which were incorporated in Second Schedule appended to the Act. In this context it was alleged that the transfer of immovable property is not incorporated in the Second Schedule, therefore, tax imposition was without jurisdiction and not liable to be recovered under the law.
3. It was further contended by the learned counsel for the petitioners that even the rules framed under the Ordinance do not permit the imposition of tax or fee on the immovable property.
4. It was also submitted that District Council or an Urban Local Council can impose tax on the transfer of immovable property under the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981. On transferor of such property whereas the transferees i.e. Purchasers were immune from the payment of such tax, and that the aforesaid rules were not allegedly applicable to the Union Councils, but if those be scratched to apply to the Union Councils, then too, the purchaser or the transferee of such property would not be liable to pay the proposed tax. It was, therefore, urged that the Union Council concerned was not competent to impose tax under the law on transfer of immovable property nor it had followed the procedure given in the West Pakistan Local Council (Imposition of Tax) Rules, 1961, which required that the tax will be proposed while framing or revising the annual budget. However, the present action was taken in an ordinary meeting and the notices regarding proposals were not served upon any of the petitioners, therefore, they had no chance to raise any objection as required by law. Those were, therefore, imposed without applying the procedure laid down in law and as such were ultra vires.
5. Lastly it was contended that the petitioners filed a civil suit to challenge the vires of the tax in question by respondent but the said suit was dismissed by the Civil Judge, 1st Class, Chishtian vide his judgment dated 14-5-1996. Hence this petition was filed.
6. The learned counsel for the petitioners was confronted that an appeal under section 166 of the Ordinance ibid was competent, but the same was not filed to which the learned counsel for the petitioners contended that it was not necessary to avail such a remedy when the impugned order was, otherwise illegal. Reliance was placed on PLD 1990 Quetta 30. '
7. The learned counsel for the petitioners was further confronted that once a remedy was availed by filing a civil suit and after its dismissal no further remedy was availed by filing of an appeal or revision if any, before invoking the Constitutional jurisdiction of this Court. In this respect, it was contended by the learned counsel for the petitioners that the same was not necessary because the order in question was without lawful authority.
8. I have given careful consideration to the above submissions and find that the Union Council, respondent No. l had followed the procedure prescribed by law and had decided in its meeting which was presided over by the Chairman that it was necessary to abolish 'Hearth' tax on public demand and that to make up the deficiency in revenue a surcharge tax was decided to be imposed at the rate of Rs.10 per thousand to the total value of the property. This decision was taken by the Union Council and a proclamation was thereafter made for the information of general public. After publication of notice to the general public, the budget proposals were examined in the meeting, held on 15-5-1992 regarding the proposals for the budget of 1992-93 vide Annexure-G in which the decision about the imposition of surcharge in question was unanimously taken and approved. Thereafter, it was notified in the Punjab Gazette in its publication dated 9-91992 and as such was made effective. It is thus obvious that the plea of the petitioners that they remained unaware of such proposal is not believable because it was a decision of the Local Council which was not only published through a proclamation but was mooted at the floor of the house. As such it represented the popular will of the local council for the imposition of the aforesaid surcharge. It was made effective from the Gazette Notification dated 28-6-1992 and the petitioners remained quiet and nobody challenged the aforesaid notification by which the surcharge was imposed. The petitioners' case suffers from worst type of laches as the notification was issued about 4 years back but is being challenged now in the writ petition and that it was previously also challenged in the civil suit, which was dismissed, but no appeal was filed against it. In such a situation it cannot be said that the petitioners were oblivious of the notification in question nor it can be justified that they should be allowed to institute the writ petition because they remained ignorant about the law whereby the surcharge was notified in a Gazette. The mere fact that the notification was published in Gazette was a notice to the whole world and the petitioners cannot escape their liability in accepting the tax imposed thereby. Otherwise also the petitioners are given an efficacious remedy under section 166 of the Ordinance, which provides that any aggrieved person of the decision of a union council can file an appeal within 30 days but the petitioners slept over and did not invoke the departmental jurisdiction for the ventilation of their grievance. The procedure given in the Punjab Local Councils (Appeal) Rules, 1980 is very exhaustive and effective to undo any order of which a person is aggrieved, but as stated above, the petitioners did not avail that remedy and it does not lie in their mouth to say that they were ignorant of the notification or that they were aggrieved of the same. It is necessary that Constitutional remedy should only be invoked when no other remedy is available to the aggrieved party. This being a condition precedent for the exercise of.
Constitutional jurisdiction, the petitioners have to show that all available remedies were exhausted.
The departmental remedy available to the petitioners under the Rules and the Statute was not only efficacious and also quite effective, but as stated above, the petitioners did not avail the same for the reasons best known to them. Reference can be made to 1993 SCM R 1798 and 1987 SCM R 810 with advantage to come to a conclusion that without availing such remedy the writ petition filed by the petitioners was not only misconceived but also not maintainable.
9. In view of the above, this writ petition is dismissed in limine C. M. No. l of 1996 C.M. No.2 of 1996 Since the main writ petition has been dismissed, these applications are also disposed of accordingly.