CH. IJAZ AHMAD, J. - The brief facts giving rise to this writ petition are that respondents appointed the petitioner as official receiver within the meaning of Rules 158, 159 and 161 of the Income Tax Rules, 1982 to ensure recovery of under-mentioned amount from the following Persons/establishment on 27.5.1998 as is evident from Annex. A/1 to A/4; B/1 to B/4; C/1 to C/4; D/1 to D/4; E/1 to E/4; F/1 to F/4 attached with W.P. No. 14884/98:-
(i) Nadia Ghee Mills (Pvt) Ltd. For recovery of arrears of income tax amounting to Rs. 7,38,78,582/-;
(ii) Seith Muhammad Yaqoob, Director, Nadia Ghee Mills (Pvt.) Ltd. For recovery of arrears of income tax amounting to Rs. 53,50,647/-;
(iii) Mrs. Razia Yaqoob, Director, Nadia Ghee Mills (Pvt.) Ltd. For recovery of arrears of income tax amounting to Rs. 1,38,09,355/-;
(iv) Saleem Yaqoob, Director, Nadia Ghee Mills (Pvt.) Ltd. For recovery of wealth tax amounting to Rs. 6,170/-
(v) Vlrs. Razia Yaqoob, Director, Nadia Ghee Mills (Pvt.) Ltd. For recovery of wealth tax amounting to Rs. 7,84,195/-;
(vi) Seith Muhammad Yaqoob, Director, Nadia Ghee Mills (Pvt.) Ltd. For recovery of wealth tax amounting to Rs. 58,72,148/- The total recoverable amount on the above Accounts added up to Rs. 9,97,01,097/-.
The aforesaid appointment letters of petitioner as receiver contained the remuneration clause as under:- "You will be entitled to remuneration at the rate of the amount recovered payable by the defaulter to the remuneration under the authority of this appointment."
The petitioner took necessary actions for the recovery of the arrears of income tax/wealth tax from the aforesaid persons -- entities. The petitioner sealed the premises of Nadia Ghee Mills (Pvt.) Ltd. on 6.6.1998. The petitioner found with hectic efforts that Seith Muhammad Yaqoob had already been detained in Central Jail, Kot Lakhpat on account of his default in the payment of utility bills.
The petitioner took the warrant of arrest of aforesaid Seith Muhammad Yaqoob from respondent No. 2 addressed to the Superintendent Central Jail, Kot Lakhpat Jail, Lahore. The contents of warrant of arrest dated 15.6.1998 reveal as under:- "Seth Muhammad Yaqoob owned a sum of Rs. 8,51,11,377/- towards arrears of income tax and wealth tax. He be arrested/continued the detention under authority vested in respondent No. 2 under Rule 162 (2) of the Income Tax Recovery Rules, 1982 under the warrant of arrest."
The Supdt. Central Jail, Kot Lakhpat Jail, Lahore did not initially receive the warrant of arrest, the same was received bv him on the hectic efforts of the petitioner as is evident from Annex 'G' attached with W.P. No, 14884/98. The endorsement on the warrant of arrest reveals as under:- "These orders are judicial orders and may kindly be considered Awais Sheikh, Advocate."
Seith Muhammad Yaqoob was produced before the Regional Commissioner of Income Tax, Lahore on 17.8.1998, negotiations were initiated in presence of petitioner; Seith Muhammad Yaqoob was agreed to pay Rs. 2 crore immediately and furnish a Bank guarantee in the sum of Rs.
1 crore provided if he shall be released from detention. Agreement was also executed between income tax authorities including Deputy Commissioner of Income Tax in the aforesaid terms. Seith Muhammad Yaqoob deposited Rs. 2 crore immediately on that very day through pay order. He also furnished a Bank guarantee in the sum of Rs. 1 crore would be payable by 28.6.1998 towards the arrears of income tax and wealth tax. The petitioner submitted an application before the Deputy Commissioner of Income Tax/Tax Recovery Officer for payment of remuneration as per terms of appointment as receiver. Respondent No. 2 refused to pay the remuneration of the petitioner. The petitioner was constrained by the aforesaid circumstances, filed W.P. No. 14884/98 which was disposed of by this Court vide order dated 15.3.1999, Regional Commissioner Income Tax was directed to decide the matter of the petitioner within a period of three weeks under intimation to the D.R. (J) of this Court. Regional Commissioner decided the cases against the petitioner vide order dated 31.5.1999; the petitioner being aggrieved by the aforesaid order, has filed this writ petition.
2. The learned counsel for the petitioner contended that respondents appointed the petitioner as receiver, petitioner acted and tried his level best to recover the income tax dues of the respondents from the aforesaid defaulters. The petitioner found the whereabouts of Seith Muhammad Yaqoob, that he was detained in Central Jail, Kot Lakhpat on account of non-payment of utility bills and informed the respondents, took the warrant of arrest from Deputy Commissioner of Income Tax/Tax Recovery Officer for the service of Seith Muhammad Yaqoob to the Supdt. Central Jail, Kot Lakhpat, Lahore, who initially refused to receive the warrant of arrest but on account of the efforts of the petitioner, he received the warrant of arrest and Seith Muhammad Yaqoob was produced on the next day before the Regional Commissioner; negotiation was started by the respondents with the aforesaid defaulter but respondent No. 3 failed to appreciate this fact that respondents recovered the aforesaid amount from Seith Muhammad Yaqoob on account of the efforts of the petitioner. The petitioner was not authorised by the respondents to initiate negotiation with Seith Muhammad Yaqoob; the petitioner remained present during the negotiation. He further stated that impugned order itself is of contradictory in nature; on the one hand remuneration was refused by respondent No. 3 and accepted the efforts of petitioner and letter of appreciation was sent to the petitioner on 5.6.1999 as recommended by respondent No. 3 through the impugned order.
Respondent No. 3 misinterpreted, misread and misconstrued the Rule/functions of the receiver and purpose of his appointment. He further stated that he mis-construed Rule 158 of Income Tax Rules, 1982 and has given very narrow and restricted meaning. He urged that petitioner acted in accordance with terms of his appointment, the respondents recovered Rs. 2 crore from Seith Muhammad Yaqoob and mala fide relied upon Rule 162 of the aforesaid Rules as the recovery was made by the department without efforts of the petitioner. He further stated that petitioner is penalized by the inaction of the public functionaries; he urged that respondents failed to release statutory remuneration of the petitioner. The petitioner acted as a Receiver and he is entitled to get his remuneration as the aforesaid amount was recovered by the respondents on account of the efforts of petitioner.
3. Learned counsel for respondents stated that respondents recovered the arrears of income tax from Seith Muhammad Yaqoob through arrest and detention of the defaulter by resorting to the provisions of Rule 162; the petitioner did not play any role in any capacity as a receiver to recover the said arrears of the department from the aforesaid defaulter. He urged that petitioner claimed remuneration of recovery of Rs. 30 millions which have been effected through his efforts from the defaulter but he did not know even about the actual figure/amount which was recovered from the defaulter which is to the extent of twenty millions and not thirty millions. He further urged that factual controversy cannot be resolved through Constitutional jurisdiction; that appointment of the petitioner as receiver is not rescinded by the respondents but he failed to show any progress till date to-recover any amount of remaining demand of respondents against the defaulters. He further stated that Rs. 43.88 millions are still outstanding against the defaulter and Rs. 10 million due to the agreed amount as per negotiation which also yet to be recovered. That negotiation proceedings Annex. R/1 does not reveal that any role was played by the petitioner is bringing the defaulter to the office of respondents. Regional Commissioner and likewise he did not participate in the negotiations held with the defaulter as well as of Rs. 20 million only were recovered out of total Rs. 74 million approximately. The warrant of arrest was not received by Superintendent Jail through the hectic efforts of respondent No. 2 through his subordinate officers of the department in response- thereto, the said defaulter appeared before respondent No. 3; the respondents negotiated with the defaulter without any services or help of petitioner and recovered Rs. 2 millions, the cheques issued by the defaulter in favour of the respondents were dishonoured as is evident from Annex. R.2/R.4. He further stated that the petitioner has only authority under Rule 158 to initiate proceedings for attachment or arrangement of the business of defaulter and has no authority to take coercive measures against the defaulter such as arrest or detention as per his terms and conditions of appointment.
4. The Regional Commissioner appeared on Court's call; he stated that writ petition is not maintainable as the petitioner did not implead the defaulter as respondent. He further stated that there are two simultaneously methods of recovery of tax from defaulter on the basis of Rules 158 to 161 by appointing the receiver or by invoking powers under Rule 162 of 1982 Income Tax Rules; that both the methods can be involved simultaneously. The recovery was effected from Seith Muhammad Yaqoob by invoking second method i. e. under Rule 162; on Court query the petitioner as well as respondent No. 3 replied that Seith Muhammad Yaqoob has left the country immediately after payment of Rs. 2 crore to the respondents by executing agreement with the respondent- department in the office of respondent No. 3.
5. I have given my anxious consideration to the contention of learned counsel for the parties and perused the record. The nature of controversy between the parties to the petition particularly petitioner's stand that the arrears of income tax/wealth tax was recovered from Seith Muhammad Yaqoob on the efforts of petitioner as the petitioner informed the department after his appointment as receiver that Seith Muhammad Yaqoob has been detained in Central Jail, Kot Lakhpat Jail on account of non-payment of utility bills; whereas the respondents denied this fact and asserted that respondents came to know about his detention from their independent resources. Similarly, petitioner alleged that aforesaid recovery was effected from the aforesaid defaulter on account of his efforts as the petitioner was able to serve the warrant of arrest issued in the name of Supdt. Central Jail, Kot Lakhpat, Lahore who initially refused to receive the same; whereas the stand of the department is entirely different that service of warrant of arrest was effected on the Supdt. Jail on account of the efforts of respondent No. 2 and his subordinate, coupled with the facts that efforts of the petitioner was denied by the department and took the stand that recovery was effected by invoking powers under Rule 162 of Income Tax Rules, 1982. in case the contents of writ petition and written statement are put in juxtaposition, then it is clear that the controversy between the parties corhes in the area of factual controversy which cannot be resolved in the Constitutional jurisdiction of the High Court. I am fortified by the judgment of Honourable Supreme Court Muhammad Younas's case (1993 SCM R 618). it is consistent view of the Honourable Supreme Court that in cases where factual controversy is involved, Constitutional petition is not proper remedy. Even otherwise to determine the remuneration qua the services rendered by the petitioner requires evidence in the present case. The petitioner has alternative remedy to file suit for recovery of his remuneration before the competent Court or agitate the matter before the Wafaqi Mohtasib-e-Ala Federal (Ombudsman) as the principle laid down by the Honourable Supreme Court in Hafiz Muhammad Arif Dar's case (PLD 1989 S.C, 109).
6. it is pertinent to mention here that Seith Muhammad Yaqoob was able to leave the country due to the inaction of respondents as the respondents did not inform the Interior Ministry to put the name of defaulter in E.C.L.
7. in view of these circumstances, let a copy of writ petition be sent to Chairman, C.B.R. Islamabad, who is directed to constitute a high powered Committee to initiate proceedings against the official/officer who provide the facility to defaulter to leave the country as the respondents failed to inform the Interior Division that name of Seith Muhammad Yaqoob be put in the C.L. The impugned order also does not reveal that the same was passed after recording the evidence of parties. The aforesaid high powered Committee shall complete the process preferably within three months and in case the said Committee has come to the conclusion that petitioner's claim is genuine and found it correct, then his amount shall be released forthwith. Chairman, C.B.R, is further directed to submit report to this extent to the D.R. (J) of this Court accordingly.
8. With the aforesaid observation, this writ petition is disposed of.