' MAULVI ANWARUL HAQ, J.---In an auction held on 25-6-1996 for the lease of a collection of Export Tax for the year 19961997 by Zila Council, Toba Tek Singh, the respondent was highest bidder with a bid of Rs,3,00,00,000. The bid was approved on 28-6-1996 and an agreement was entered into between the parties on 30-6-1996. The collection was started on all the goods liable to the said tax including floor (URDU TEXT); that seven Floor Mills of the area challenged the imposition of the Export .Tax on the said item before the Commissioner, Faisalabad Division who issued an interim order on 1-9-1996 stopping the charge of the said tax on floor (Annex-C). The appeal was disposed of on 30-9-1996 with a direction to the Director, Local Government to verify the situation. Thereafter the respondents tried to recover the tax but the Mills owners refused to pay the same. An application was filed 'before the Administrator but before the matter could be finalized, the Government vide a letter dated 4-11-1996 (Annex-E) stopped the recovery of the said tax on the said item. It was complained that the income of the respondent has been drastically reduced and he is entitled to the reduction/rebate on the lease money. He claimed a reduction of Rs,1,05,00,000.
According to the respondent he had already paid Rs,2,02,00,000 till 25-1-1997 i,e, the date of filing of writ petition and after adjusting the said amount he has to pay nothing to the Zila Council. With these averments, a declaration was sought that the respondent is entitled to the reduction in lease money to the tune of Rs,1,05,00,000 on the basis of average collection of tax on the said item as Rs,35,000 per day. Refund of Rs,7,00,000 was also claimed.
2. In their written statement the appellants objected that there being an arbitration clause in the agreement dated 30-6-1996, the writ petition is not competent. The measure of damages stated in the writ petition was denied specifically. It was pleaded that a question of tact is involved and the same cannot be resolved without recording of evidence. It was further stated in the written statement that T.T. Singh is primarily a cotton growing area; that there are only 10 Floor Mills and out of these only seven Mills are functioning. It was also denied that the respondent had not been collecting tax on "URDU TEXT" during the period 1-9-1996 to 23-9-1996 i,e, when the appeal of the Floor Mills owners was pending with the Commissioner. Reference was made to the contempt application filed by the said appellants stating that despite the restraining order of the Commissioner, the respondent is collecting the said tax. It was further admitted that the Government had clarified on 4-11-1996 that the said tax is not leviable on "URDU TEXT". It was further stated that none of the appellants had taken the decision in the said matter which has been taken by the Provincial Government. The loss allegedly suffered by the respondent was stated to be highly exaggerated and it was stated that the daily income from collection of the said tax on the said item in no manners its more than Rs,2,000 to Rs,2,500. Reference was made to some receipts for the period 1-7-1996 to 4-7-1996 when the tax was collected by the Zila Council itself and according to these records the income on the said item for four days comes to Rs,11,146.
3. The writ petition was heard on 12th and 13th of February, 1997 and decided vide a judgment announced on 4-3-1997. The respondent was found entitled to a rebate in the sum of Rs,81,43,450 on account of exclusion of "URDU TEXT" from the schedule of taxable items. The appellant was thus found liable to pay only Rs,2,18,56,550 for the period 1-7-1996 to 30-6-1997 and as such the balance payable would be Rs,16,56,550.
' Subject to payment of the said amount alongwith relevant taxes, the respondent was declared entitled to continue collecting the tax till 30-6-1997. The I.C.A. Came up for hearing on 19-3-1997. It was entertained subject to objection of the learned counsel for the respondent it is not competent.
The respondent offered to make the balance agreed payment in instalments and was directed to do so accordingly.
4. The learned counsel for the appellant contends that the with petition involved a pure question of fact in view of the respective pleading of the parties and the same could not have been resolved without a trial and recording of evidence. The learned counsel for the respondent, on the other hand, objects that the I.C.A. Is not competent as according to him an appeal lay in the matter and was filed and decided. He has also tried to support the impugned judgment.
5. We have gone through the records of the writ petition, with the assistance of the learned counsel for the parties. Coming to the first said objection raised by the learned counsel, the precise plea is that an appeal was filed against the inclusion of "URDU TEXT" chedule by the Floor Mills owners. The matter was referred by the Appellate Authority to the Government and the appeal was allowed on 22-12-1996 in terms of the reply received to the said reference. To our mind the said objection o: the learned counsel for the respondent is wholly misconceived. .6. There is no original order in terms of section 2(3) of the Law Reforms Ordinance, 1972 and the writ petition i,e, the respondent has not challenged any such order. He has filed a claim for damages on the grounds stated in the writ petition. He is aggrieved not of any order but of the fact that he is not being compensated for his inability of collecting the tax on "URDU TEXT", in view of the orders passed by the Provincial Government. Even going by the Punjab Local Councils (Appeal) Rules, 1980 read with sections 166 and 167 of the Punjab Local Government Ordinance, 1979, no appeal stands provided against, an order passed by the Government, as in the present case i,e, exclusion of the said item from the Schedule of Taxable items. The objection accordingly is rejected.
7. We have already referred to the material contents of the writ petition and its reply by the appellants in their written statement. The writ petition involved two questions. The first was that as to whether the respondent is entitled to the rebate being claimed by him on the basis of exclusion of the said item from the Schedule. The second question was as to what should be the amount of the said rebate. As to the said first question, we find that the matter is governed by the Punjab Local Councils (Lease) Rules, 1990. Rule 12, thereof, provides that the lessee shall not be entitled to any rebate on any grounds whatsoever. The agreement admittedly entered into between the parties (Annex-R/1) is on the record. Clause 11 of the agreement narrates that the respondent shall recover the tax in accordance with Schedule. However, he shall be bound to act upon any direction or clarification issued by the Government. It is further reiterated by the respondent in Clause 12 of the agreement that although he shall be entitled to make recovery in accordance with approved Schedule yet he shall not recover any tax on any item which is excluded by the Government.
Clause 18 narrates that the respondent shall not be entitled to any concession or rebate from the Zila Council and that no concession will be given to him in terms of the provision of the said Lease Rules, 1990.
8. In view of the said statutory provision and the terms of the contract, we do find that the respondent was not at all entitled to any rebate as claimed by him.
9. So far as the said second question is concerned, needless to state that in view of the controversy reflected in the pleadings of the parties, the matter could not have been decided without framing of issues and recording of evidence.
10. The Honourable Supreme Court of Pakistan has consistently cautioned against the undertaking of such exercise in writ jurisdiction. Reference be made to the case of Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim (2001 SCM R 1493) where their Lordships with reference to the cases of Ataur Rehman Khan v. Dost Muhammad and-others (1986 SCM R 598) and State Life Insurance Corporation of Pakistan v. Messrs Pakistan Tobacco Company Ltd. (PLD 1983 SC 280) and several other dictums of the apex Court have observed that the superior Courts should not involve themselves into a fully probe or in-depth investigation of fact which necessitated taking of evidence and that it is their Lorships' considered view that this can conveniently and appropriately be done by the forumse available in the heirarchy. It was further observed that Constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where an illegality, impropriety and flagrant violation of law regarding impugned action of the authority is apparent and can be established without any comprehensive enquiry into complicated, ticklish controversy and disputed facts.
11. In view of the above discussion, the I.C.A. Is allowed and the result would be that Writ Petition No,2013 of 1997 filed by the respondent shall stand dismissed without any orders as to the costs.