1. IFTIKHAR MUHAMMAD CHAUDHARY, C.J.--- Petitioner had instituted instant Constitutional petition seeking declaration that respondent District Council, Chaghi, through its Administrator has no lawful authority to levy Zilla Tax on the transit goods from Iran to Pakistan, and such action on its part be declared without jurisdiction and lawful authority and void. It has further been prayed that directions be made to respondent to refund the petitioner aggregate sum of Rs.4,200 paid by him towards Zilla Tax on two consignments.
2. Precisely stating facts of the case are that petitioner exported a consignment of "Risins" comprising 1050 bags on 21-2-1999 and when the consignment was being escorted by the customs staff to dry port situated at Quetta, the respondent recovered Zilla Tax equal to the amount of Rs.2,100 vide receipt dated 22-1-1999; whereas second consignment comprising of 934 bags was also subjected to Zilla Tax by the respondent in the sum of Rs.211, dated 22-2-1999. The grievance of petitioner is that respondent had charged Zilla Tax on petitioners' consignment without lawful authority and jurisdiction.
3. Raja M. Afsar learned counsel for the petitioner contended that both the consignments of "Risins" were not being exported from within the limits of District Council as the goods were in transit from Iran to Quetta, therefore respondent under Baluchistan Local Councils District/Zilla Tax Rules, 1994 had no lawful authority to recover the same.
4. Mr. Mohsin Javed learned counsel for the respondent argued that petitioner had alternative remedy of appeal against the recovery of Zilla Tax within the meaning of Rule 44 of Baluchistan Local Councils District/Zilla Tax (y Rules, 1994. Thus, instant petition deserves to be dismissed on this ground alone. He further stated that as District Chaghi is situated adjacent to Iran border from where petitioner had exported the goods, therefore, no sooner the goods shall pass from any tax post of respondent, the goods were liable to be subjected to Zilla Tax, as such the respondent had legally recovered the tax from petitioner.
5. It would be appropriate to first of all deal with the object' in of respondent's counsel concerning non-maintainability of the petition as he has failed to avail alternative remedy. As per Rule 44 of Baluchistan Local Councils District/Zilla Tax Rules, 1994 an appeal is competent against the assessm ent made and order issued under these rules before the Tax Officer, if the orders are issued by the Tax Clerk or the Tax Inspector and before the Chairman if the orders are issued by the Taxation Officer and the Government if the orders are issued by the Chairman. When we confronted to Raja M. Afsar learned counsel for petitioner with the arguments of Mr. Mohsin Javed learned counsel for respondent, he started that as the impugned order has been passed without lawful authority and jurisdiction, therefore, even without availing alternative remedy a Constitutional petition in the nature of certiorari is competent. In support of his argument reliance was placed by him on PLD 1961 SC 119.
6. Honourable Supreme Court in the report of Lt.-Col. Nawabzada M Amir Khan v. The Controller of Estate Duty PLD 1961 SC 119 while examining bar in filing a writ petition in presence of other remedy observed as follows;----------- "It may be pointed out here that in accordance with a passage in Halsbury (p.130, 3rd Edn., Vo1.II) which is reproduced in S.A Haroon v. Collector of Customs, PLD 1959 SC (Pak. l17" the objection as to existence of the right of appeal which is available in a petition for mandamus is not available in a petition for certiorari at all. The passage runs: 'There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and provided the requisite ground's exist, certiorari will lie although a right of appeal has been conferred by statute'.
7. This is not in accord with what is stated in Ferris on Extraordinary Legal Remedies, but it may be pointed out in support of the statement in Halsbury that if the existence of a right of appeal be an obstacle, to petition for certiorari, then petitions for certiorari against the orders of the Custodian, the various Election Tribunals and Industrial Tribunals, will have a general rule to be dismissed, because an appeal by special leave does lie in all such cases to the Court and the grounds of such appeal are surely not narrower than the grounds for certiorari. The existence of the right of appeal to this Court has, however, never been regarded as a bar to the entertainment of petitions for certiorari by the High Court. So far as proceedings in excess of jurisdiction are concerned it is accepted even in Ferris on Extraordinary Legal Remedies that certiorari will lie even though a right of appeal exists."
8. PLD 1963 Dacca 754 while discussing question of availing alternative remedy followed the judgment of Honourable Supreme Court referred to hereinabove and held that the Court will, as a general rule and in exercise f its discretion refused an order of mandamus when there is an alternative specific remedy at law which is not less convenient, beneficial and effective. It was further observed that one of the well-recognized exceptions to this general rule is a case where an order is attacked on the ground that it was wholly without authority.
9. Similarly in the next case relied upon by the petitioner's counsel. i.e. The Murree Brewery Company Ltd. v. Pakistan through Secretary to the Government Works Division and 2 others PLD 1972 SC, 279 the Honourable Supreme Court again reiterated the principle of law enunciated in the case of Lt. Col Nawabzada M. Amir Khan and held 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 which the Court regulates its jurisdiction. With reference to the case of Nawabzada-Muhammad Amir Khan it was further observed that one of the well-recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority.
10. 1972 SCMR 257, the Honourable Supreme Court held that in a case where the dispute arises between the parties in respect of a fiscal right based upon a statutory instrument the same can be easily determined in writ jurisdiction. At this juncture it is noteworthy that by the time it has been settled that the Court is empowered, to issue a writ of certiorari to inspect the proceedings of a lower/subordinate Court to determine whether there have been any irregularities; whereas writ in the nature of mandamus is issued by a Court of superior jurisdiction directing to a Government functionary or to an Executive, Administrative of a Judicial Officer or to an inferior Court commanding the performance of a particular act therein specified and belonging to the public official or ministerial duty directing the restoration of the complainant to rights or privileges of which it has been illegally deprived. We have seen that in the basic judgment of Honourable Supreme Court in the case of Lt.-Col. Nawabzada Muhammad Amir Khan it has been held that bar against petitioner for not availing the Constitutional remedy of writ jurisdiction of a Court when other alternative remedy is available operates against a writ in the nature of mandamus, but not against writ of certiorari. Admittedly instant petition does not call for issuance of a writ in the nature of certiorari and in terms of the relief it has been claimed that it is a writ in the nature of mandamus, which is a writ by the bar of availing alternative remedy before filing his writ petition.
11. But this bar can also be crossed in exceptional cases as it was held in Lt.-Col. Nawabzada Muhammad Amir Khan's case which was followed in the judgment of Mritunjoy Paul and in the report of Murree Brewery Company Limited, namely, that one of the well-recognised exceptions to this general rule is a case where an order is attacked on the ground that it was wholly without authority. In the judgment of Mritunjoy Paul Honourable Division Bench of Dacca High Court also noted two other judgments of Honourable Supreme Court in the case of Tariq Transport Company v. Sargodha-Bhera Bus Service PLD 1958 SC (Pak.) 437 and also in the case of S.A. Haroon v.
12. Collector of Customs PLD 1959 SC (Pak.)
177. In the last --mentioned case the writ petition was decided by the High Court despite the fact that an appeal against the order of Collector of Customs was actually pending. But despite that the Honourable Supreme Court refused to give effect to the preliminary objection of non-maintainability of the petition as appeal was pending on the ground that the order of Collector was attacked as in excess of authority and a question of interpretation of law which was of general importance. Thus, following these principles it is important for us as well to examine whether the respondent had charged in excess of its authority Zilla Tax from petitioner on the consignment which was in transit from Iran border to Quetta Dry Port.
13. Raja M. Afsar learned counsel for petitioner was of the opinion that as the goods were not being exported from within the District Chaghi, therefore, respondent had no authority to claim Zilla Tax on it; whereas Mr. Mohsin Javed learned Advocate for respondent contended that because the exported goods were passing from the limits of District Chaghi, as such the Administrator/respondent was competent to recover the same.
14. It may also be noted that Rule 12, sub-rule (2) clarifies that in case the goods are in transit from the other Council upon representation of a certificate of payment of tax or, in case the tax is not imposed by such Council a certificate of the origin of the consignment from such Council obtained from tax post of the Council, the goods presented under sub-rule (1) shall be exempted from the tax. It may be seen that identical provision is available under Baluchistan Octroi Rules, 1964 where an exemption on payment of octroi taxes has been allowed on the transit goods. At this juncture for further and better understanding reference to Rule 20 sub-rule (1) may also be made according to which every exporter shall immediately after a consignment from within the District Council limits is booked with the Railway Station pay the tax at the nearest post and shall file a declaration giving details of the goods, the date of backing, weight of consignment, railway registration number and any other necessary details. On placing Rule 12(1)(2) and Rule 20(l) of the Rules, 1994 in juxtaposition no other conclusion can be drawn except that if the goods are being exported from within the limits of the District only then Zilla Tax is leviable on such goods and if the goods in transition from one Zilla Council to the other Zilla Council or from other country to other Zilla Council, then through which it passes being a transit goods no Zilla Tax shall be leviable. However, it would be the duty of exporter to satisfy by producing documentary evidence that the goods is in transit and on having been satisfied with the documentary evidence the authorities of Zilla from where goods is passing shall exempt it from demanding the tax in terms of Rule 12, sub-rule (2).
15. As we have observed hereinabove that admittedly in the instant case the goods owned by petitioner was being exported from Iran to Pakistan to Dry Port Customs under the Customs Squard from Taftan to onward, therefore, " respondent had no lawful authority to charge Zilla Tax on the goods. Thus, the action of respondent being without lawful authority warrants issuance of a writ of mandamus following the rule that the action of respondent is without lawful authority, therefore, objection raised by Mr. Mohsin Javed learned counsel for the respondent concerning non- maintainability of the petition in presence of alternate remedy is overruled.
16. Thus, writ as prayed for is issued leaving the parties to bear their own costs.