CH. IJAZ AHMAD, J.-- I intend to decide the following writ petitions by one consolidated order having similar facts and law:-- W.P: No. 3191/2000.
W.P. No 1321/2000. W.P. No. 5385/2000. W.P. No. 23350/2000.
2. The brief facts out of which these writ petitions arise are ' that the petitioners are running a Commission shops in the Fruit and Vegetable Market, Piplan District Vlianwali for the last 20 years. The respondent Town Committee Piplan District Mianwali Collects two kinds of taxes i.e. Town Committee Sale Tax and Market Committee Tax from the petitioners and others who are running the same business in the Fruit and Vegetable Market Piplan. The petitioners through Dr. Rehmat A.I Rana President of their Anjuman submitted an application to the Director Agriculture (E&M) Punjab Lahore with the request that respondents No. 3 and 4 are illegally and un-lawfully charging the aforesaid taxes from them. The Director marked the application of the petitioners to the Extra Assistant Derectoi, Mianwali and the Administrator Town Committee Piplan with the direction to visit the area and also submit report to him in the matter.
The Extra Assistant Collector Agriculture (E&M) Mianwali submitted report to the Director Agriculture (E&M) through letter dated 14.9.1999. The contents of the letter show that Market Committee Piplan is empowered to recover fee on the sale/purchase of the Agriculture produce brought and sold in the notified area of the market committee of Piplan and no other authority can levy/recover fee on the sale/purchase of fruits and vegetables, as is evident from Annexure ''D'. The Director Agriculture (E&M) Punjab Lahore requested respondent No. 1 vide letter dated 16.11.1999 that the Town Committees are not empowered competent to collect market fee and establish the markets within the notified area of. The Market Committee under the prevailing Rules and Local Government Ordinance does not provide authority in this regard as is evident from Annexure E'. The respondents No. 3 and 4 are still collecting sale tax/Market Committee Taxes from the petitioners illegally, hence the present writ petitions.
3. The learned counsel of the petitioners have stated that in spite of specific direction earlier imparted by the Director Agriculture respondents. No. 3 and 4 are illegally claiming the market fee.
They further submit that Market fee can only be levied under the Provisions of the Punjab Agriculture Produce Market Ordinance, 1978 by virtue of Section 19 and Agricultural Produce Market (General) Rules 1979 by virtue of rule 36 by the respondent No. 2 and the respondents No. 3 and 4 have no jurisdiction whatsoever to collect market fee from the petitioners. They further submits that action of the respondents is without lawful authority.
4. The learned counsel of the respondents raised the following preliminary objections:--
(i) Petitioners approached this Court with un-clean hands.
(ii) One of the members of the Association Sardar filed W.P. No. 9250/94 which was dismissed by this Court vide order dated 30.8.1994. The aforesaid Sardar also filed W.P. No. 16044/99 which was disposed of by this Court Vide order dated 31.8.1999 and copy of the writ petition was transmitted to Secretary Local Government with the direction to look into the matter in order to pass such order as he deems appropriate in the Circumstances of the case within one month The Secretary Local Government decided the application vide order dated 14.5.1997 and observed that it is the only local council which can oppose and receive the tax in question on fruits and vegetables. The competent authority issued notification to levy the tax in question under Sections 62 and 101 of the Punjab Local Government Ordinance, 1979.
(iii) The petitioners have alternate remedies under the - Provisions of the Punjab Local Government Ordinance by virtue of Sections 153, 156 and 166 of the Punjab Local Government Ordinance, 1979.
'(iv) The petitioner Rana Wakeel Ahmed has also filed civil suit against the imposition of tax before the Civil Judge first Class Mianwali. The interim relief was refused by the Civil Judge First Class Mianwali vide order dated 9.9.1990. Rana Wakeel being aggrieved filed appeal before the Addl.
District Judge Mianwali who also dismissed the same vide order dated 12.11.1990. The petitioner concealed all the material facts from this Court.
The learned counsel of the petitioners in rebuttal submits that matter has been finally decided by the Hlon'ble Supreme Court in Market Committee Khudian through its Administrator Vs. Town Committee Khudian through its Chairman 1992 SCMR 1403. They further submit that writ petitions are maintainable without exhausting the alternate remedies. In support of their contentions they relied on PLD 1990 S.C. 599 Hamayun Saif Ullah. Vs. Federation of Pakistan.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that petitioners have not challenged the vires of the notification on the basis of which the respondents have collected the Market fee from the petitioners. The-respondents are collecting the market fee from the petitioners after issuing the notification under the 'provisions of the Punjab Local Government Ordinance, 1979. The impugned levy has been once withdrawn by the Local Government Punjab vide letter dated 17.4.1990 SOVI (L.G.) 1-59/86 in whose obedience the Town Committee Piplan had also stopped receiving the impugned tax but letter of Government of the Punjab resorted the previous position through letter No. SORI (LG) 7-4/92 dated 1.6.1994 by withdrawing earlier order of 17.4.1990 Town Committee Piplan has been allowed to levy Market fee as special case vide letter No. SORI (LG) 7-4/92 dated 15.6.1992.
The aforesaid facts and the notifications were not attached by the petitioners with the writ petitions. This fact brings the case in the area that the petitioners do not approach this Court with clean hands. It is settled proposition of law that he who seeks equity must come with clean hands.
In this view of the matter. I am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Hon'ble Supreme Court in Nawabzada Raunak A.I Khan's case PLD 19 73 S.C. 236.The petitioners have alternate remedies to approach the respondent No. 1 as per principle laid down by this Court in Kh. Abdul Waheed's case P.L.J. 1978 Lahore 253. In this view of the matter the writ petitions are not maintainable as pr principle laid down by the Hon'ble Supreme Court in Muhammad Ismael's case PLD 1996 S.C. 246. Cases cited by the learned counsel for the petitioners are either not relevant to the controversy or otherwise are distinguishable. In case of Market Committee Khudian supra the question of entertainment of writ petition without have recrossed to alternate remedies was neither raised nor decided. My learned brother the then lhsanul Haq Chaudhry, J. Had considered this aspect of the case in W.P. No. 4174/98 and laid down the following principle:- "There is recent tendency to file constitution petitions without exhausting the remedies under the Statute. This recent trend is dangerous. Hon'ble Supreme Court clearly held in the case reported as Pir Sabir Shah Vs. Shad Muhammad Khan NWFP and others (PLD 1995 S.C. 66), The Collector Customs Karachi Vs. M/s. New Electronics (Pvt.) Ltd. 59 others (PLD 1994 S.C. 363) and Riffat Askari Vs. State (PLD 1997 Lahore 285) that objection be raised in the proper forum but in spite of the petitioner without exhausting the remedies of appeal before the Collector of Customs (Appeals) and the Tribunal has filed this petition. It is note-worthy that according to the amendment made through Finance Act, 1997 now third appeal is competent in this Court also which is to be heard by at least, a -Bench of two Judges."
The recent trend of the Hon'ble Supreme Court is in accordance with the aforesaid principle laid down by my learned brother the then Ihsan-ul-Haq Chaudhry, J. In the aforesaid writ petition. In arriving to this conclusion I am also fortified by the following judgments:-- 1994 SCMR 1484. Raja Muhammad Ramzan and 21 others Vs. Union Council Bajinal and others.
1994 SCMR 65) Syed Qamar Ahmad and another Vs. Anjum Zafar and others 1993 SCMR 1810- Wealth Tax Officer and another Vs. Shaukat Afzal and four others.
The relevant observation is as under:- "Learned counsel has contended that section 156 of the Punjab Local Government Ordinance .1979 does not provide remedy in so far as the levy of impugned tax is concerned. He has also contended that the Provincial Government had by a circular letter prohibited the Union Council from levying the impugned led tax.
Learned counsel for the caveator has in additions to sections 1 66 relied on sections 139, 156 and
173. Which, according to him, furnish enough alternative remedies which are all adequate, therefore, without exhausting the relevant remedies the writ petition could not be entertained.
Learned counsel for the petitioners argued that in facts and circumstances of this case those provisions are not attracted. We do not agree with him The questions of fact which were agitated before the High Court including the question, whether the tax in question in reality is not a market fee as asserted from the respondents side could more properly and easily be debated and agitated before the functionaries mentioned in above-referred provisions (and even the remedy by way of suit in the circumstances can be filed particularly in cases involving the disputed question of fact) can be better agitated before a forum which can easily record evidence. Learned counsel for the respondent also cited Messrs Punjab Feeds Ltd. Vs.. Abdul Ghafoor 1990 S.C.M.R. 439(2) to show that the provisions contained in the Ordinance provide sufficient adequate alternative remedy which is normally followed in such like cases. In so far as the judgment relied upon goes it does show that a similar case has gone before the Commissioner, prior to the extraordinary writ jurisdiction of the High Court.