' This judgment will dispose of Civil Revisions Nos.509-D of 1998 and 510-D of 1998 as the identical question of fact and law is involved in these matters between the same parties.
2. Through these revision petitions the petitioner has challenged the judgment and decree, dated 25-6-1998 passed by Additional District Judge, Dera Ghazi Khan, whereby, judgment and decree, dated 4-5-1998 passed by Civil Judge First Class, Dera Ghazi Khan dismissing the suits of the plaintiff/petitioner was maintained.
3. The facts giving rise to the present civil revisions are that the plaintiff China Petroleum and Construction Corporation, Taunsa through its Managing Director had instituted two separate Suits Nos.433 of 1997 and 340 of 1997 challenging the Orders Nos.9607, 9608, 9609 and 9610, dated 1-12- 1996 passed by respondent No,1 District Collector, Dera Ghazi Khan for the recovery of Rs,65,000, Rs,80,000, Rs,2,29,770, Rs,75,000 and Rs,3,85,890 the Mining Tax imposed by the Union Council, Makwal Kalan, Tehsil Taunsa, District Dera Ghazi Khan for the years 1994-95 and 1995-96 as arrears of land revenue from the plaintiff/ petitioner in the Court of Civil Judge, Dera Ghazi Khan alleging in the plaint that the plaintiff-company is constructing Indus Highway as Contractor and using stones and crush stones etc. On the road. These stones are being lifted from a mountain situated within the limits of Union Council Mangrotha and he pays the tax under the Mining Act to the licensee/lessee. It was averred in the plaint that respondents Nos.5 and 6 being Contractors for the years 1994-95 and 1995-96 are not entitled to recover the above said amount from the plaintiff as arrears of land revenue. It was further alleged in the plaint that the Mining Tax could not be imposed by the Local Council. This tax was to be levied by the authorities of the Mining Department.
Both the suits were contested by respondents Nos.1, 5 and 6.
4. From the factual controversy appearing on the pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the Orders bearing Nos.9609 and 9610, dated 1-12-1996 passed by District Collector D.G.
Khan (defendant No,1) for the recovery of Mining Tax as arrears of Land Revenue are against the law, against the facts, void, based on mala fide and without competency? OPD
(2) Whether the plaintiff has got no cause of action to file this suit? OPD
(3) Whether the suit is incorrectly valued for the purpose of court-fee? OPD
(4) Whether the suit is not maintainable in its present form ? OPD
(5) Whether the plaintiff is estopped to file this suit by his words and conduct? OPD
(6) Whether the Court lacks jurisdiction to entertain the suit? OPD
(7) Whether the suit of plaintiff is defective due to non-joinder of necessary parties ? OPD
(8) Whether the defendants are entitled to special costs under section 35-A, C.P.C. ? OPE
(9) Relief.
5. After recording and appreciating the evidence of the parties, pro and contra, the trial Court dismissed the suit of the plaintiff. Feeling aggrieved the plaintiff/petitioner preferred two separate appeals which came up for hearing before the Additional District Judge, Dera Ghazi Khan who vide the impugned judgments dismissed both the appeals.
6. Learned counsel for the petitioner contended that the Union Council, Makwal Kalan, Tehsil Taunsa, District Dera Ghazi Khan vide a Notification No, 133, dated 6-6-1991 imposed an Import Tax on crush stone etc. Vide section 137 of Punjab Local Government Ordinance, 1979 within the limits of Union Council concerned. Learned counsel for the petitioner further contended that according to the notification issued by the Union Council the driver of the vehicle was responsible to pay the said tax (Import Tax) to the Union Council. So, the tax cannot be recovered from the petitioner/Company. The learned counsel relied on Second Schedule of Part I of Punjab Local Government Ordinance, 1979, which has provided 19 items to be taxed by the Union Council.
According to the learned counsel this tax which has been imposed by the Union Council is a Mining Tax and the Union Council has no authority to impose the same under Local Government Ordinance. Learned counsel further contended that vide order, dated 1-12-1996 the District Collector had directed to collect the mining tax from the petitioner/firm while the Union Council could not impose or collect this tax under the Local Government Ordinance. It is further contended that as per notification it reveals that Union Council had imposed the Import Tax and not a Mining Tax, whereas the impugned order has been passed by the District Collector for the recovery of Mining Tax. In this respect the learned counsel for the petitioner has referred to letter, dated 3-12-1997 issued by Director, Local Government recommending to the District Collector to withdraw the impugned tax which shows that the department itself was of the opinion that this tax could not be imposed. To prove this letter the petitioner has filed an application before the trial Court for production of additional evidence which was partly accepted and to the extent of calling the concerned clerk along with the record to prove this letter was dismissed. He further contended that the petitioner has filed an application in this Court for production of additional evidence to the extent of clerk of the Local Government alongwith the record which was accepted on the ground that the application filed by the petitioner in the trial Court was partly refused and the Appellate Court could grant the same if the Court requires any document to be produced or any witness to enable the Court to pronounce the judgment for substantial justice. Learned counsel for the petitioner further contended that the evasion of tax by the taxpayers is an offence under section 161 of the Ordinance, if at all the taxpayers refuse to pay the same he would be proceeded under section 161 of the Punjab Local Government Ordinance, 1979, would be liable to be punished for six months S.I. And the proceedings under the above said section is already in progress against the petitioner.
7. Learned counsel for the petitioner forcefully stressed that Ch. Ijaz Ahmad who passed the impugned order was not enjoying the power of District Collector. He being ADC(G) was only officiating to look after the office work only. He further contended that if at all the tax is recoverable from the petitioner he has to pay the tax to the Contractors only and it is a matter between the private persons i,e, the petitioner and the contractors and thus, the arrears against the petitioner would not be recovered as arrears of land revenue. He relies on Rule 3 of the West Pakistan Government Dues Recovery Ordinance, 1962, wherein defaulter has been defined.
8. The learned counsel for the petitioner further contended that this arrear could only be recovered from the defaulter, if notification under the Ordinance is issued. Learned counsel continued that there is no dispute of recovery between the Local Council and the petitioner. He continued that the procedure for the arrears of Government dues has not been performed by the District Collector/respondent No,
1. He relied on case of Malik Abdullah Karim v. West Pakistan Province through Collector. Rehimyar Khan and another (PLD 1978 BJ 22), Agricultural Development Bank of Pakistan v. Sanaullah Khan and others (1988 PLD SC 67), Syed Inayat Ali Shah v. Province of the Punjab (PLD 1978 Lahore 859). He further contended that there is no evidence on the record by the respondents to establish that the petitioner was defaulter or liable to make the payment of the tax or that the procedure in accordance with the above-referred law has been performed. Learned counsel further contended that the respondents have not taken the plea in their written statement that originally the import tax was imposed and inadvertently it was mentioned as mining tax. He continued that if the party has not taken the plea in their pleadings, cannot argue the same thereafter. He relied on Muhammad Zafar Iqbal v. Imam Ali and 2 others (1992 CLC 109). He further contended that both the. Courts below have not given findings on each and every point in issue, therefore, the impugned judgment has been passed in violation of Order 41, Rule 31. C.P.C. He relied on Muhammad Tufail v. Mst. Sardar Bibi and others (1998 CLC 1969) and Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum (1993 CLC 109), He further contended that no evidence has been produced by respondents Nos.1 to 4 to establish that the order passed by the District Collector was valid. He further contended that the District Collector had not passed the impugned order after performing the requirements of law. It is settled principle by the superior Courts that the authority which has the power to decide the matter could only decide the same in accordance with procedure prescribed under the law and not otherwise.. He relied on Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447).
9. On the other hand, the learned counsel for the respondents Nos.5 and 6 vehemently opposed the arguments of the learned counsel for the petitioner contending that the petitioner has failed to establish on record the assertions raised in his pleadings. He further contended that there is no evidence on the record to establish that Ch. Ijaz Ahmed who had passed the impugned order was not enjoying the power of District Collector or that he was posted as ADC(G). According to the record it transpires that he was having the power of District Collector. This ground was also not taken in the pleadings of the petitioner and no issue was framed to this extent. He continued that respondents Nos.5 and 6 have raised in their written statements paragraph (G) of the same that the mines which are situated or brought into the limits of the Local Council are liable to be taxed and this Union Council has been empowered to impose the tax in accordance with item No,12 of Schedule annexed with the Punjab Local Government Ordinance. He further argued that vide notification the tax was imposed by the Union Council which enshrines, that it was an import tax and not the mining tax. The tax was imposed on bringing of stones, crush stones within the limits of the Union Council. It cannot be termed as mining tax and the petitioner has failed to produce any evidence to establish that the respondents have received from them any mining tax or any other notification was issued by the Local Council mentioning the mining tax. He continued that the Local Council has leased out to respondents Nos.5 and 6 rights to collect the import tax and not the mining tax and under the contract respondents were only receiving the import tax from the persons and not the mining tax. The Courts below have construed in accordance with the support of the notification issued by the Local Government that it was an import tax and not the mining tax.
The Courts below have not committed any illegality in this respect. The learned counsel forcefully stressed that the Local Council is entitled to recover the tax as arrear of land revenue under section 137 of Punjab Local Government Ordinance, 1979, and according to the sub-rule (13) of the Punjab Local Councils Rules, 1980. He further contended that the amount outstanding against the petitioner was referred to the District Collector who after determining the liability of the defaulter/petitioner passed the impugned orders against him for the recovery of the same. He further contended that the tax which was liable to be paid by the petitioner was not a Government dues, which could not be recovered under West Pakistan Government Dues Recovery Ordinance, 1962. Section 141 of Punjab Local Government Ordinance, 1979 enunciated that all the arrears of tax rents and other moneys are payable to a local council under the Ordinance shall be recovered as arrears of land revenue. The proceedings of recovery were initiated under the Punjab Local Government Ordinance and not under West Pakistan Recovery Dues Ordinance, 1962. The Government has conferred the power on the contractor for recovery of tax under subsection (2) of section 141 of the Punjab Local Government Ordinance, therefore, respondents Nos.5 and 6 were fully authorized to make the recovery of the tax from the petitioner and the District Collector has initiated the proceedings of recovery against the petitioner because they were the defaulters. He relied on Haji Muhammad Yousaf v. Province of Punjab (PLD 1997 Lah. 674). The learned counsel further argued that the stones and crush stones etc. Were imported by the petitioner's firm for the construction of the road and not by the drivers of the trucks. The petitioners were liable to make the payment of the tax to the Local Council/Contractor. The petitioner has also not challenged the validity of the notification imposing the import and on the stones. So far as the application for producing the additional evidence of the petitioner is concerned after partly rejection and dismissal of the appeal they could impugn the order in revision and when they filed the first appeal before the Appellate Court. They could raise their objections in the grounds of appeal and the petitioner has not adopted any of the above remedy and the petitioner has also not taken this ground, in grounds of revision, meaning thereby, that the rejection of their application for production of additional evidence has attained finality. He further continued that the learned counsel for the petitioner has not been able to point out on which issue the Court has not given its findings and how the petitioner is prejudiced by the judgment of the lower Courts. The learned counsel for the petitioner has also not been able to point out which provisions of rules have not been complied with by District Collector while passing the impugned order. The learned counsel for the petitioner has also failed to point out any illegality, jurisdictional defect, misreading or non- reading of evidence in the impugned judgment. He continued that concurrent findings of question of fact be interfered with in exercise of provisional jurisdiction by the High Court unless it is proved perverse.
10. I have heard the arguments of the learned counsel for the parties and perused the record.
11. It is admitted position that the Union Council, Makwal Kalan vide Notification No,133, dated 6-6- 1991 had imposed import tax on general stones, crush stones etc. To be brought within the limits of Union Council The Union Council leased out the rights for the collection of the above said import tax to respondents Nos.5 and 6 for the years 199495 and 1995-96. The petitioner-company was constructing Indus Highway which runs through the limits of respondent Union Council, brought the stones and crush stones etc. Within the limits of Union Council for the construction of road and as prayed by respondents Nos.5 and 6 they were liable to pay the tax to the Union Council but the petitioner did not make the payment of the above said tax to the Union Council, therefore, respondents Nos.5 and 6 applied to the District Collector for the recovery of the said tax as arrears of land revenue from the petitioner. The District Collector respondent No,1 vide his disputed order, dated 1-12-1996 directed the Union Council to recover the outstanding amount of tax from the petitioner while passing the order the District Collector termed this tax as mining tax.
12. Now the question which boiled down for determination in this matter is that whether it was a Mining Tax imposed by the Local Council and whether the Local Council was authorized to impose and levy the same from the defaulters. Section 137 of Punjab Local Government Ordinance, 1979 contemplates, that a Local Council subject to the provision of any other law may, and if directed by Government, shall levy all or any of the taxes enumerates in the Second Schedule. The Union Council is authorized to levy the tax provided in Part I of the Second Schedule which is reproduced below:-- ' PART I ' TAXES OF UNION COUNCILS
(1) Tax on cinemas and cinema tickets.
(2) Entertainment tax on dramatically and theatrical shows.
(3) Tax on annual rental value of buildings and land.
(4) Health tax.
(5) Tax on the birth of children.
(6) Marriage tax.
(7) Fees for licenses, sanctions and permits granted by a Union Council.
(8) Fee on the slaughter of animals which may be in kind or cash or both.
(9) Fee for erection and re-erection of buildings.
(10) Market fees, except cattle markets and fairs.
(11) Rates on the services like water-supply drainage, lighting provided by the union councils.
(12) Tax on the import of goods and animals for consumption, use or sale.
(13) Tax on animals.
(14) Tax for the construction or maintenance of any works or public utility.
(15) Fees at fairs, agricultural shows, industrial exhibitions, tournaments and other public gatherings organized and maintained by union council.
(16) Tax on feasts where more than twenty persons, not belonging to the household of the person arranging the feasts are entertained with foodstuffs.
(17) Community tax on the adult males for the construction of a public work of general utility for the inhabitants of the union.
(18) Tolls on roads and ferries maintained by the union council: and
(19) Surcharge on any of the taxes levied by Government.
12. It is clear from above schedule of tax of the Union Council that the Union Council cannot levy any tax other than the mentioned in Part-1 of Second Schedule. Item No,12 Part-1 of the Schedule had empowered the Union Council to levy import tax on the import of goods for use or sale. It means that any kind of goods which are imported into the limits of the Union Council, the Council can impose import tax on those goods. The stones and crush stones imported . Into the limits of the Union Council for the consumption of the same on road, the Union Council has validly imposed tax and the person who has imported these stones within the limits of the Union was liable to make the payment of the import tax to the Union Council. From the reading of the Notification No,133, dated 6-6-1991 issued by the Union Council it reveals that the Union Council has imposed import tax on the stones and not Mining Tax. The District Collector while passing his order has authorized the Union Council to recover the amount of Mining Tax as arrear of land revenue. The Union Council is authorized to receive the amount of that kind of tax which was imposed by it. Mentioning the Mining Tax in the order of the District Collector would not change the nature of the tax, therefore, I have no hesitation in observing that the District Collector without examining the record i,e, notification issued by the Union Council and the application submitted by respondents Nos.5 and 6 has used the word in his order as Mining Tax. Respondents Nos.5 and 6 and the contractors under the Union Council, who have been leased out the rights for collection of the import tax. They have not been allowed by the Mining Department under the Pakistan Mining Concession Rules, 1960 or under statutory rules by the Government, neither they have obtained any licence from the concerned authority. The lease under the Pakistan Mining Concession Rules, 1960 has not been granted to respondents Nos.5 and 6. Thus, they have no authority to recover the Mining Tax from the petitioner.
13. As discussed above, respondents Nos.5 and 6 were granted lease rights for the collection of import tax from the importers and a person who fails to make the payment of the tax to the Union Council concerned his act would be offence under section 161 of the Punjab Local Government Ordinance which provides that an act and omission specified in the Third Schedule shall be an offence under Ordinance and the Third Scheduled has enumerated the offence under section 79 of the Ordinance. Clause 32 of Part-II of Third Schedule has provided that evasion of payment of tax or other imposed tax by the Local Council is an offence. It means that the evasion or non-payment of tax to the Local Council is an offence under section 161 of the Punjab Local Government Ordinance and a person who contravenes any of the provision of Ordinance or commits any of the offences mentioned in Part-I and Part-II of the said Schedule shall be punished. Sub-clause (2) of section 162 of the Ordinance emerges that whoever commits any of the offences mentioned in Part-II of the Third Schedule shall he punished with fine which may extend to five hundred rupees and if the offence is a continuing one, with further fine which may extent to fifty rupees for every day after the date of the first commission during which period the offender has persisted in the offence and the proceedings under the Ordinance have been initiated against the petitioner by the Local Council.
14. From the above discussion, I am constrained to hold that the amount outstanding against the petitioner mentioned in his plaint was of the import tax imposed on the stones and crush stones etc. Import by the petitioner within the limits of the Union Council for use and consumption on the road and the petitioner is liable to make the payment of the same to the Union Council.
15. Now the question is that, whether the amount of import tax would be recoverable as arrears of land revenue. Section 141 of Punjab Local Government Ordinance has enunciated that all arrears of tax, rent and other money payable to Local Council under the Ordinance shall be recoverable as arrear of land revenue. It is a tax to be recovered from the petitioner by the contractors. This amount is not a contract amount to be paid by the contractors to the Municipal Committee.
16. That lease money being contractual amount unless the liability is ascertained in proper manner would not be recovered as arrear of land revenue. For the recovery of the lease money the proper manner would be through the process of the civil suit as observed in case of Javed Alam v. District Collector/Deputy Commissioner, Rawalpindi and 2 others (1997 CLC 1450), Ali Ahmad & Company v. Municipal Committee, Pasrur through its Chairman and others (1986 MLD 628) and Haji Syed Habibullah and another v. The Municipal Committee, Quetta through the Administrator, Municipal Committee, Quetta and another (PLD 1977 Quetta 71). The petitioner has challenged the order of the District Collector directing the agency to recover his outstanding amount against the petitioner through the modes of the recovery. The Union Council while issuing the notification for the imposition of the tax had also determined the liability of the taxpayer.
17. Clause (5) of the notification has empowered the Union Council to recover the same which is reproduced below:- {{URDU TEXT}} ' Clause (6) of the notification has further provided that:-- {{URDU TEXT}}
18. From the above said clauses of the Notification No,133, dated 6-6-1991 it reveals that the Truck Driver was liable to make the payment of the tax or the persons who keep or store the general stones, crush stones etc. For more than 24 hours would be liable to make the payment of the tax.
19. In view of the above discussion and the dictum laid down in the case referred to above, it is crystal clear that before recovery of the amount the liability of the taxpayer is to be determined.
20. The crush stones were brought and stored by the petitioner into the territorial limits of the Union Council, Makwal Kalan Tehsil Taunsa, therefore, the petitioner was liable to make the payment of import tax to the Union Council or the contractors who have been given the rights for collection of the said tax. Respondents Nos.5 and 6 are the contractors of the Union Council therefore; they were entitled to receive or recover the said tax from the petitioner.
21. Section 80 of the West Pakistan Land Revenue Act, 1967 has provided process of recovery for arrears which is reproduced as under:-- "Subject to the provisions of this Act, an arrear of land revenue may be recovered by anyone or more of the following processes, namely--
(a) by service of a notice demand on the defaulter under section 81;
(b) by arrest and detention of his person under section 82;
(c) by distress and sale of his movable property and uncut or untethered crops under section 83;
(d) by transfer under section 84 of the holding in respect of which the arrear is due;
(e) by attachment under section 85 of the holding in respect of which the arrears is due;
(f) by annulment, under section 86 of the assessment of that holding;
(g) by sale of that holding under section 88;
(h) by proceedings against other movable property of the defaulter under section 90.
22. The most significant feature of the mode of recovery is that a notice of demand May be issued by the Revenue Officer on or after the dates on which the arrears of land revenue occurs.
23. The Collectors while passing the impugned order has not issued any notice of demand to the petitioner. It means that the requirements of law have not been performed by the Collector while passing the impugned orders for the recovery of the disputed amount from the petitioner.
Therefore, the proceedings of recovery and the impugned order directing the Local Council for the recovery of disputed amount from the petitioner is declared to have been passed without lawful authority and of no legal effect. However, the Collector may proceed afresh against the petitioner in accordance with law.
24. Before the recovery of the amount the liability of taxpayer is to be determined as the dispute is between the petitioner and respondents Nos.5 and 6 i,e,, the taxpayer and the Contractor.
According to the provisions of section 141 of the Punjab Local Government Ordinance, all arrears of tax shall be recoverable as arrear of land revenue. The amount in dispute is arrear of tax outstanding against the petitioner, therefore, this amount could be recovered as arrear of land revenue from the petitioner because it was not a disputed amount between the contractor or the Municipal Committee. It is a dispute between two private persons; the authorized agent of the Local Council and the person who is liable to pay the import tax. Thus, the principle laid down in cases referred to by the learned counsel for the petitioner are not applicable to the petitioner. The recovery of outstanding tax amount from the defaulters would be made as arrears of land revenue after determining the liability of the defaulters and determining the outstanding amount in accordance with the Land Revenue Recovery Rules.
25. The amount outstanding against the petitioners is amount of tax of the Local Council, therefore, the provisions of Government Due Recovery Act are not applicable to the instant case. The petitioner has also not produced any evidence to establish that Ch. Ijaz Ahmed was not enjoying the powers of District Collector. The petitioner has raised this objection, so onus was also on him to prove his objection. This contention of the learned counsel for the petitioner is misconceived. Issue No,1 is decided accordingly. No other issue was pressed by the parties.
26. Both the Courts below neither adverted to the above said aspect of the case nor discussed, considered and appreciated the same. It is settled principle of law that High Court would not interfere in the concurrent findings of fact of the Courts below but where High Court is satisfied that the findings of both the Courts below based on misreading or non-reading of evidence the Court in its provisional jurisdiction would legally set at naught such findings of both the Courts. It, therefore, flows that the concurrent findings do not always stand in the way of High Court to set aside such findings in appropriate cases.