' Instant writ petition under Art. 199 of the Constitution of Islamic Republic of Pakistan. 1973 is directed against the order dated 24-10-1998 whereby the petitioner has been restrained from collecting octroi-tax of Zila Council Muzaffargarh from respondents Nos.5 and 6.
2. Briefly stated the facts are that petitioner is a contractor for the collection of octroi-tax of Zila Council Muzaffargarh for the year 1998-99. He has been restrained by respondent No, 1 through letter dated 24-10-1998 from recovering the tax from respondents Nos.5 and 6 on the basis of letter issued by respondent No,7 bearing No,S OVI(LG)/78(P-IV) dated 24-5-1984 and 10-4-1984. His contention is that exemption granted vide letters referred above is without lawful authority as the same can only be granted to Charitable and Welfare Institutions and none else as contemplated under Rule 8 of the Punjab Zila Council (Export Tax) Rules, 1990 read with section 144 of the Punjab Local Government Ordinance, 1979, that petitioner cannot be forced to abide by the instructions which are not in consonance with Punjab Local Government Ordinance, 1979 and rules framed thereunder. He, thus, submits that order dated 24-10-1998 be declared unlawful.
3. - Arguments have been heard and record perused.
4. It is submitted by the learned counsel for the petitioner that his client is a contractor for the collection of octroi-tax for Zila Council Muzaffargarh for a sum of Rs,5,88,00,000, that as per terms and conditions of contract he is authorised to collect octroi-tax on the goods to be taken out of the territorial jurisdiction of Zila Council Muzaffargarh, that vide letter dated 24-10-1998 he has been restrained from collecting. The said Zila tax from respondents Nos.5 and 6 on the basis of letter issued by respondent No,7 bearing No, SOVI (LCD)/78 (P -IV), dated 24-5-1984 and 10-9-1984, that letters referred above are violative of Rule 8 of the Punjab Zila Council (Export Tax) Rules, 1990 whereby such exemption is available only to Charitable and Welfare Institutions, that the impugned order, dated 24-10-1998 is based on letters, dated 24-5-1984 as well as 10-9-1984 but none of these letters has been issued under Rule 8 of the Punjab Zila Council (Export Tax) Rules, 1990 as such the said order is not warranted by law, that according to section 139 of the Punjab Local Government Ordinance, 1979 Government is competent to increase or decrease tax and to suspend or abolish the levy of any tax, but it does not empower the Government to exempt the goods from the Rawangi Mahsool (Export . Tax). He further contended that tax rules are framed under section 144 of the Punjab Local Government Ordinance, 1979 and Rule 8 of Punjab Zila Council (Export Tax) Rules, 1990 has been framed thereunder, as such no letter can be issued in violation of said rules. He, thus, submitted that order contained in letter dated 24-10-1998 being in violation of Rule 8 of Punjab Zila Council (Export Tax) Rules, 1990 framed under section 144 of Punjab Local Government Ordinance, 1979, be declared illegal, void and ineffective upon the rights of the petitioner.
5. Conversely the impugned order dated 24-10-1998 has been supported by the learned Additional Advocate-General. His contention is that petitioner has no locus standi to institute this petition, that he is estopped by his conduct to file this petition, that petition is barred by Rule 19 of the Punjab Zila Council (Export Tax) Rules, 1990 which provides that any dispute between the parties shall be settled through arbitration. On merits he contended that Government is fully competent to exempt any article from the levy of tax, that exemption has been granted in respect of goods which are to be exported only, as in such cases Export Tax can only be collected once and not twice as law does not permit double taxation, that petition is also not maintainable as the efficacious remedy by filing an appeal under section 166 of the Punjab Local Government Ordinance, 1979 is available, that rights of the petitioner stand protected in the impugned letter, which contains inter alia that the petitioner shall maintain an account of the goods taken out of the territorial jurisdiction of District Muzaffargarh and the respondents Nos.5 and 6 shall be bound for the rendition of account after exporting the goods'. He, thus, submitted that in no way the impugned letter dated 24-10-1998 is violative of any provisions of Punjab Local Government Ordinance, 1979. So far as the question of Rule 8 of Punjab Zila Council (Export Tax) Rules, 1990 is concerned, he contended that the same is not applicable in the instant case. On the other hand he referred to clause No,13 of lease agreement whereby the petitioner has bound himself to abide by the provisions of Punjab Local Government Ordinance, 1979, as well as Lease Rules, 1990, Taxation Rules, 1980 and Goods Exit Tax Rules, 1990, that the petition is also not competent in view of arbitration clause No,12 embodied in the terms and conditions of lease agreement.
6. The petitioner has challenged the order contained in letter dated 24-10-1998 whereby he has been restrained from collecting Zila Tax from respondents Nos.5 and 6 on goods to be exported by Ahem. His contention is that exemption from tax is only permissible under Rule 8 of the Punjab Zila Council (Export Tax) Rules, 1990 which relates to charitable and welfare institutions only. There is no doubt that Rule 8 referred above relates to charitable and welfare institutions but the exemption required vide letter, dated 24-10-1998 has not been claimed on the basis of said rule. On the other hand this exemption is being claimed on the basis of instruction contained in letter dated 24-5- 1984 which is reproduced for ready reference:--- ' No, SOVI(LG) 1 (23)/78 (P-1) Government of the Punjab Local Government and Rural Development Department.
' Dated Lahore, the 24th May, 1984.
(1) All the. Directors, Local Government and Rural Development in the Punjab.
(2) All the Chairmen, Zila Councils in the Punjab.
' Sub: EXEMPTION OF GOODS BEING EXPORTED FROM PAKISTAN TO OTHER COUNTRIES.
' Sir, ' I am directed to refer to the subject noted above and state that the goods 'exported' from Pakistan to other countries will be exempted from the levy of Rawangi Mahsool (Export Tax). The following principles shall be followed on the goods 'exported' from Pakistan to other countries:--- Only such exporters will be entitled to refund of Rawangi Mahsool who:
(a) are directly exporting the goods to a foreign country:
(b) have so declared (with the details of goods) at the time of exit from a Rawangi Mahsool or a bank security in lieu thereof:
(c) produce to the Chief Officer or concerned officer of the Council within one month of such exit, the following documents;
(i) Customs shipping bill containing the description of goods actually passed through the Naka and for which the deposit of Rawangi Mahsool was made.
(ii) Bill of Lading issued by the Shipping/Air Company certifying actual shipment of the goods for which refund is claimed.
(d) With a view to ensuring that a person does not claim refund more than once through photocopies he will be required to produce the original document. As the Customs required original document for its rebate purposes, it is proposed to request the Customs to allow an additional 'Local Council Copy' in cases where Rawangi Mahsool (Export Tax) is involved. Your obedient servant, Sd/- (Jamshed Husain)
Section Officer-VI for Secretary Local Government.
' These instructions were further amended vide letter dated 10-9-1984 which is as follows:--- GOVERNMENT OF THE PUNJAB, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT .
' To,
(1) All Directors, Local Government and Rural Development in the Punjab.
(2) All the Chairmen, Zila Councils in the Punjab.
' No, GOVI(LG)1-23/78(P-1V), dated Lahore, the 10th September, 1984.
' SUB: EXEMPTION OF GOODS BEING EXPORTED FROM PAKISTAN TO OTHER COUNTRIES.
' Reference this Departments circular letter of even number dated 24-5-1984 on the subject noted above.
(2) The following amendments in the said instructions are hereby made which related to the refund of export tax on the articles which are being exported outside the country:---
(i) The exporters may make such payment or furnish a bond or bank guarantee in respect of the articles meant for export outside the country to the satisfaction of Zila Council.
(ii) The period of 90 days may be given for claiming refund/settlement of account instead of one month already laid down for the purpose. Sd/- (Jamshed Husain) Section. Officer-VI for Secretary Local Government.
A perusal of instructions referred above clearly reveal that these have been issued by the Secretary Local Government, who is competent to issue such instructions in exercise of powers vested in him vide section 144 of the Punjab Local Government Ordinance, 1979 for the implementation of the provisions of said Ordinance. If the petitioner feels aggrieved of the letter dated 24-10-1998 he has been provided an efficacious remedy in the form of appeal as contemplated by section 166 of Punjab Local Government Ordinance, 1979 which lays down as follows:
166. Appeals.---(1) Any person aggrieved by any order passed by a local council or its Chairman (or its vice-chairman or officer) in pursuance of the Ordinance or the rules or bye-laws, may appeal to such authority, in such manner and within such period as may be prescribed.
(2) Any order passed in appeal shall be final. Again an efficacious remedy has been provided in the agreement vide Circular No,12, which provides an arbitration clause. There being two efficacious remedies available to the petitioner, he cannot invoke the Constitutional jurisdiction of this Court. Accordingly petition is held to be devoid of any force and in dismissed accordingly.