' The petitioner has filed this writ petition with the following prayer:-- "In the circumstances, the petitioner very humbly prays before this Court for declaring:--
(i) The Model Schedule at Serial No,83' is against the rules and be declared without lawful authority.
(ii) The act of demanding export tax by respondents on Cigarettes at the rate of Rs,5 Carton on Carton basis is ultra vires to Rules and hence, illegal.
(iii) The act of increasing export tax by manifold be declared as unreasonable and arbitrary."
2. The learned counsel for the petitioner submits that the petitioner has got his manufacturing unit within the area of District Jehlum and after production of the material, the goods are taken out of the District to various godowns after payment of exit tax in accordance with the rules. He further submits that the respondents are illegally charging the tax in question from the petitioners, once again after the goods, are taken out of godowns for its distribution to other places. He further submits that in view of rule 1-A added in the Export Tax, 1990, the respondents have got no authority whatsoever under the law to levy the tax. He further submits that action of the respondents is without lawful authority and is in violation of the mandatory provision of the Punjab Local Government Ordinance, 1979 and the rules framed thereunder. He summed up his arguments that action of the respondents is in violation of the law laid down by the Superior Courts.. In support of his contention, he relied upon the following judgments:--- ' Hilal Tanneries Ltd. v. Zila Council, Gujrat etc. (1994 MLD 2366); Mitchell's Fruit Farm (Pvt.) Ltd. v. Zila Council, Okara (1996 MLD 1617) and Sambu Construction Co. Ltd. v. Admn. Zila Council (2001 MLD 699).
3. The learned counsel of the respondents submits that if the goods are not taken beyond the limits of District Council within 24 hours, they become subject to the levy of the export tax in terms of rule 5 of the Local Council Export Tax Rules, 1990. In support of his contention, he relied upon a case of "Zila Council Jhelum. v. I.C.I. Pakistan Ltd. Etc.". (1993 SC.MR 454). He further urges that tax in question has been abolished by the competent Authority, therefore, the writ petition has become infructuous. He further urges that the petitioner failed to provide Bank Guarantee as directed by this Court, therefore, the writ petition has become infructuous and Is liable to be dismissed in view of the conduct of the petitioner as the petitioner failed to obey the direction of this Court. He further urges that rule relied upon by the learned counsel of the petitioner has already been substituted by the competent Authority by rule 5(5) of the Punjab Export Tax Rules, 1990. He further submits that judgments relied by the learned counsel for the petitioner has no relevancy as the amendment in the aforesaid rules was not considered, therefore, the judgments relied by the learned counsel for the petitioner are judgments of querying. After the aforesaid amendment dictum of the Hon'ble Supreme Court in the aforesaid case of Zila Council Jehlum, has come in the field automatically.
The judgments cited by the learned counsel of the petitioner are the judgments of this Court; whereas the judgment of the Hon'ble Supreme Court has binding effect. He further submits that the petitioner has alternative remedy, therefore, the writ petition is not maintainable.
4. Learned, counsel of the petitioner in rebuttal submits that Punjab Zila Council Goods Exit Tax Rules, 1990 has been ceased to exit after the repeal of Punjab Local Government Ordinance, 1979.
He further submits that in view of section 6 of General Clauses Act, the writ petition has become infructuous and guarantees submitted by the petitioner has also been deemed not to be given by the petitioner to the respondents under the direction of this Court. He further submits that this Court has ample powers to look into the subsequent events at the time of deciding the writ petition.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. After repealing of the Punjab Local Government Ordinance, 1979, the rules framed under the repealing Act shall remain in the field in view of section 196(2) which is re-produced hereunder:--- "Notwithstanding the repeal of the Punjab Local Government Ordinance, 1979 (VI 1979), and dissolution of all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committee, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979), under subsection (1), subject to sections 4 and 23 of the Punjab General Clauses Act, 1958 (W.P. Act (VII of 1956), all rules, regulations and bye-laws made under the repealed Punjab Local Government Ordinance, 1979, so far those are not inconsistent with the provisions of this Ordinance shall continue to be in force until amended or varied by the competent Authority. Provided that, until otherwise decided by the Government, the local Government Boards established under the Punjab Local Government Ordinance, 1979 (VI of 1979), for the administration of Officers and Officials of the Local Council Service suall continue to function."
' The mere reading of the aforesaid provision of law reveals that the rules framed by the competent Authority under the provision of repealing Act are saved. The learned counsel of the petitioner failed to point out that rules framed under the old repealing Act are inconsistent with any of provision of new Punjab Local Government Ordinance, 2001. In this view of the matter, the contention of the learned counsel of the petitioner that the writ petition has become infructuous, has no force, in view of aforesaid saving clause. It is also admitted fact that the petitioner has alternative remedy under the aforesaid rules. In case, contents of the writ petition and parawise comments are put in juxtaposition then it brings the case of the petitioner in the area of disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact in ,Constitutional jurisdiction as per principle laid down by the Hon'ble Supreme Court in Muhammad Younis Khan's case (1993 SCMR 618). It is also admitted fact that the petitioner has alternative remedy under the aforesaid rules, therefore, writ petition is not maintainable. In arriving to this conclusion, I am fortified by the following judgments:-- 1994 SCMR 1484 in Raja Mehmood's case; 1994 MLD 930 in Raja Ramzan's case; PLD 1978 Lah.811 in Kh. Abdul Waheed's case; PLD 1996 SC 246 in Ch. Muhammad Ismail's case and 1993 MLD 32 in I.C.I.
Pakistan' case.
' The aforesaid proposition of law was considered by my learned brother the then Mr. Ehsan-ul-Haq Chaudhry, J. In W.P. No,4174 of 1998 and laid down the following principle.
"There is recent tendency to tile Constitutional petition without exhausting remedies under the statute. This recent trend is dangerous. The Hon'ble Supreme Court clearly held in the case reported as Syed Sabir Shah and others v. Shah Muhammad Khan (PLD 1995 SC 66), Collector Customs Karachi v. New Electronic (Pvt.) Ltd. (PLD 1994 SC 363) and Riffat Askari v. The State (PLD 1997 Lahore 285).
' In this view of the matter, the writ petition is not maintainable the writ petition in pending adjudication before this Court since 1997, therefore, keeping in view this fact, I dispose of this writ petition as per principle laid down by the Hon'ble Supreme Court in case "Messrs Aslam Traders v.
Asghar Ali Tahir and others" (2000 SCMR 65). The relevant observation is as under:--- "In consequence, the petitioners are allowed to avail remedy of appeal before the proper forum within 20 days from today, which if filed, the said forum shall give benefit as regards delay of the period during which writ petitions remained pending before the High Court and shall decide the appeal on merits as well as the prayer for interim relief:, Meanwhile, no coercive measures will be taken against the petitioners for a period of 20 days from today to enable them to approach the appropriate forum. The appeals are allowed in the above terms."
7. In view of the aforesaid principle laid down by the Hon'ble Supreme Court, the petitioner is allowed to avail remedy of appeal before the competent forum within 20 days from today which if filed, the said forum shall decide the same on merits. The judgments cited by the learned counsel of the petitioner are distinguished on facts and law as the question of maintainability was not raised and decided in the cited judgments.
' In view of what has been discussed above, this writ petition is disposed of in the aforesaid terms.