CH. UAZ AHMAD, J.- I intend to decide Writ Petition No. 2789 alongwith the following writ petitions having similar facts and law:- 9549-97, 425-98, 11947-98, 922-98, 14-99, 228-99, 189- 99, 388-98, 187-98, 188-98, 1131-98, 900-98, 655-98, 1158-98, 578-98, 2157-98, 2277-98, 2375-98, 2270-98, 2370-98, 2376-98, 2637-98, 11040-98, 10578-98 and 3085/98.
The brief facts out of which the aforesaid writ petitions arise are that the petitioner took part in an open auction held by Administrator concerned Committee for the collection of tax. Petitioners being highest bidders were declared successful and as such they were given lease for the year 1997/98. Petitioners executed agreements with the respondents with certain conditions. Petitioners were asked to deposit an amount equal to 5% of their aforesaid offers with each installments as income tax.
2. Mr. Khalid Alvi, Advocate learned counsel for the petitioner contended that the lease money being not income as such 5% advance tax as envisaged under sub-section (7-A) of Section 50 of the Income Tax Ordinance, 1979 cannot be claimed from the petitioners. In support of his contention learned counsel has placed reliance upon an interim order passed by the Hon'ble Supreme Court on 25.6.1997 in similar circumstances in Civil Petitions Nos. 641 to 647/97. Learned counsel for the petitioner contended that Section 50(7-A) of 1979 Ordinance was added through an Ordinance on 25.6.1981 when the Article 89 was held in abeyance by virtue of Article 2 of PCO, 1981 which was promulgated on 24.3.1981. Therefore, the said section of the Income Tax Ordinance, 1979 is ultra vires of the Constitution. He further urged that explanation of sub-section (7-A) of Section 50 of the Income Tax Ordinance, 1979 excluded petitioners. He further urged that the collection was being done by the respondents Local Councils and said collection could be called the income of the respondents and not the petitioners. Resultantly, at the end of the each month, the petitioners were required to make payment of installments, towards the clearance of the agreed amount.
Therefore, the same cannot be called the income of the petitioners. He further urged that the permanent changes cannot be brought in an enactment though an Ordinance which in its nature is temporary legislative measure. He further urged that income tax can be levied only on the income tax, without conceding even mere collection of income tax, duty octroi which is on behalf of the respondents under an implied relationship of agency, can never be given rise to the liability of the petitioners to pay the advance income tax. The action of the respondents is against the Articles of the Islamic Republic of Pakistan i.e. 4, 18, 21 and 25. The word property is not defined in the aforesaid explanation of sub-section (7- A) of Section 50 of the Income Tax Ordinance. Therefore, meaning assigned to the property in the aforesaid impugned explanation is not justified in the eyes of law. He further argued that words 'any person' mentioned in the aforesaid section does not cover contractors. The action of the respondents is against the provisions of Sections 15, 22, 23, 30 and 31 of the Income Tax Ordinance.
3. Learned Standing Counsel appeared on behalf of the respondents raised preliminary objections.
He contended that petitioners executed contracts/agreements with the respondent of their own free will and this Court has no jurisdiction to enforce the contracts while exercising power under Article 199 of the Constitution. He relied upon the following judgments:-
(i) PLD 1992 Lahore 68.
(ii) PLD 1969 Lahore 633.
(Iii) PLD 1987 Lahore 262.
He further states that petitioners took part in the auction proceedings and thereafter executed the agreements with certain conditions with the respondents. Therefore, the petitioners at this belated stage cannot resile from the agreements executed by the petitioners with the respondents on the well-known principle of estoppel. He relies upon the following judgments:-
(i) PLD 1983 Lahore 47.
(ii) 1978 SCMR 367.
(iii) 1982 CLC 1477.
He further urged that due to conduct of the petitioners they are stopped to file the writ petitions. He relied upon 1998 SCMR 1058 (Muhammad Younis Khilji's case). He finally summed up his arguments that similar controversy has been finally decided by this Court in the following judgments:-
(i) 1997 PTD 747 (BismiAllah and Companies case).
(ii) PLJ 1998 Lahore 1282.
He further stated that ing order is not judgment as the controversy between the parties has not been finally decided by the Hon'ble Supreme Court. He relied upon PLJ 1975 S.C.
21. He further distinguished the cases in which the Hon'ble Supreme Court has granted leave, in the schedule 3% tax imposed but subsequently through the amendment it was increased from 3% to 5% in those cases the principle of retrospective is involved. Therefore, the ing order of the Hon'ble Supreme Court is distinguished on facts.
4. Learned Addl. A.G. Contended that the contention of the learned counsel for the petitioners a;e not sustainable in the eyes of law as the petitioners have alternative remedies to agitate the arbitration clause of the aforesaid agreements.
5. Learned Legal Advisor of the concerned Administrator Committees and learned A.A.G, adopted the arguments of the learned Standing Counsel.
6. Learned counsel for the petitioner in rebuttal contended that contacts were executed by the petitioner with the respondents under undue influence. Therefore, the same is hit by section 16 of the Contract Act. He further stated that contracts executed between the parties is also hit by Section 23 of the Contracts Act. There is no estoppel against law. Petitioners have no alternative remedies against the income tax deduction. He summed up his arguments that the action of the respondents is not in accordance with the provisions of the Income Tax Ordinance, 1979.
7. I have given my anxious consideration to the contentions of the learned counsel for the parties, it is admitted fact that agreements were executed between the parties on different dates having similar clause which expressly disclose that in case of any dispute between the parties, the Commissioner/Deputy Commissioner shall be sole Arbitrator, it is better and appropriate to reproduce the relevant Clauses of the aforesaid agreement to resolve the controversy arising in the present writ petition:- in view of the above said arbitration clauses of the agreement, the writ petition is not maintainable as the principle laid down by the Hon'ble Supreme Court in following judgments:
(i) 1994 SCMR 1484.
(ii) 1990 CLC 1639.
(iii) 1999 SCMR 121 (Project Dir, Baluchistan, Mineral Irrigation's case). it is settled proposition of law that specific arbitration clause has been provided in the agreement as mentioned above and if the petitioners have got any grievance against he contents of the said agreements they can avail their remedies before the appropriate forum as it needs a detail inquiry.
Since the petitioners have voluntarily executed an agreement with arbitration clause with the respondents then the petitioners are stopped to challenge the same in writ jurisdiction on the well- known principle of approbate and reprobate as the principle laid down by the Hon'ble Supreme Court in Haji Ghulam Rasool's case (PLD 1971 S.C. 376). it is settled principle of law that contractual obligations cannot be enforced through a writ petition as the petitioners have alternative remedies to invoke the jurisdiction of a Civil Court by means of regular suit. I am fortified by the following judgments of Hon'ble Supreme Court of Pakistan:-
(i) P.L.D. 1981 S.C. 604 (Shameer's case).
(ii) P.L.D. 1986 Quetta 181 (Pakistan Mineral Development Corp's case).
(iii) P.L.D. 1958 S.C. 387 and P.L.D 1962 SC 108. in the presence of the arbitration clause coupled with the fact that through this writ petition, the petitioner wants enforcement of the agreement executed between the petitioners and the respondents. Therefore, the writ petition is not maintainable, it is pertinent to mention here that the similar controversy has already been decided by this Court in W.P. No. 9383/97 which was decided by my learned brother Ghulam Mehmood Qureshi, J. The aggrieved party i.e. Contractors filed I.C.A.
No.36/98 which was decided by the D.B. Consisting of my learned brothers Tanvir Ahmad Khan, J.
And Muhammad Nawaz Abbasi, J. And approved the above judgment. The Contractors filed petition, before the Hon'ble Supreme Court which was also dismissed, as stated by the learned legal advisor of Khanewal Municipal Committee.
The present controversy has also been finally decided after examining all the relevant provisions of Income Tax Ord., 1979 and dismissed the writ petitions in the following judgments:
(i) 1997 PTD 747 and (ii) PLJ 1988 Lah. 1282. it is pertinent to mention here that Bismillah and Companies case (1997 PTD 747) was considered and approved by the Division Bench of this Court consisting of my learned brothers Ihsan-ul-Haq Chaudhry, J., and Najam- ul-Hassan Kazmi, J. In W.P. No. 16358/97. My learned brother Malik Muhammad Qayyum, J. In Bismillah and Companies case (1997 PTD. 747 at 749) considered the contention of the petitioners and observed as follows:- "Explanation being clear and explicit does not leave any room for duty that so far as Section 50 (7- A concerned), the sale of property would include lease for collection of octroi duties, tools, fees and other levies."
I am also fortified by the following judgment:
(i) 1985 PTD 787 (Rehman Corporation's case)
(ii) 1989 PTD 1048 (Trustees of the Port of Karachi's case)
(iii) NLR 1995 Tax (Lah.) 51.
(iv) PLD 1984 Lahore 345 {Muhammad Younis case)
(v) 1997 PCTLR (SC) Pak 512. it is settled proposition of law that leave-granting order by the Hon'ble Supreme Court is not judgment. I am fortified by the judgment of the Hon'ble Supreme Court in Khairullah's case (1997, SCMR 906) and the relevant observation is as follows:- "Order simply granting leave to appeal, does not lay down a rule of law to be followed, like a judgment of this Court deciding finality any matter."
The contention of learned counsel for the petitioner that Section 50 (Sec. 7-A) is ultra vires of the Constitution has no force. The laws framed in question was protected and ' validated by virtue of Article 270-A of the Constitution. I am fortified by the judgment of Hon'ble Supreme Court in Mrs. Benazir Bhutto's case (P.L.D. 1988 S.C. 416) and Ghulam Mustafa Khar's case (P.L.D. 1989 SC 26).
8. in view of what has been discussed above, the petitioners have alternative remedies more than one. Therefore, these writ petitions are not maintainable. The petitioners if so advised shall agitate the matter before the appellate forum or avail the arbitration clause. These writ petitions are not maintainable and the same are disposed of in the aforesaid terms.