KHAWAJA MUHAMMAD SAEED, J.-- Both the above titled appeals have been filed against the common order passed by the High Court on 27.3.2001, therefore, these shall be disposed of through this single judgment.
2. Facts necessary for the disposal of these appeals, briefly stated, are. That private respondent Muhammad Macsood Khan filed a writ petition in the High Court alleging therein that the Azad Government of the State of Jammu and Kashmir issued a notification on 20.11.1999, through which the local bodies established under the Azad Jammu and Kashmir Local Government Act, 1990 (hereinafter to be referred as the Act of I 990) were empowered to levy different taxes. The District Council, Muzaffarabad among other taxes imposed a tax on the export of commercial timber from the limits of District Muzaffarabad. The private respondent obtained contract from District Council, Muzaffarabad in an open bid for a consideration of Rs. 65,00,000/- for collecting tax on the commercial timber to be exported out of the limits of District Muzaffarbad. The case of private respondent was further that the Government on the initiative of Forest Department on 17.7.2000, cancelled the afore-mentioned notification. This new notification was published in the official Gazette contrary to the spirit of the Rules of Business, 1985, by the Forest Department. He, therefore, challenged the correctness of this notification inter alga on the grounds that under Sections 64 and 67 of the Act of 1990, the Government of Azad Jammu and Kashmir was legally competent either to levy tax itself or empower any other authority to do. So. Under the authority of the Government the District Council, Muzaffarabad through an open auction had given him contract for Rs. 65,00,000/- for collecting the tax on the timber to be exported out of the limits of District Muzaffarabad. Notices were issued to Azad Government through its Chief Secretary, Forest Deparment through Secretary Forests and Local Government Department through Secretary Local Government, who were arrayed as answering respondents whereas District Council was also listed in the line of respondents through Administrator District Council, Muzaffarabad but was shown as proforma respondent. AKLASC was not included in the line of respondents. Notices were served upon all the above-referred official respondents but despite notices they failed to appear in the Court, as such, were proceeded ex parte.-Subsequently Advocate-General appeared on behalf of the present appellants before the High Court but no application was moved by him seeking cancellation of ex pane order. At the time of arguments he stated at bar in the High Court that he has not been provided any assistance by his clients, therefore, was unable to rebut the arguments submitted on behalf of the private respondent. The High Court at the end of the proceedings vide judgment under challenge dated 27.3.2001, accepted the writ petition filed by private respondent and declared the notification dated 17.7.2000, ineffective and inoperative upon the rights of private respondent.
3. Azad Jammu' and Kashmir Logging and Sawmills Corporation filed a petition for leave to appeal before this Court on 21.5.2001. Subsequently Azad Jammu and Kashmir Government and the Forest Department also filed petition for leave to appeal before this Court on 24.5.2001. After taking necessary proceedings leave was separately granted by this Court in both the afore-mentioned petitions through even dated orders of 14.6.2001.
4. On 19.2.2001 an application was moved by Raja Muhammad Hanif Khan, the learned counsel for the appellants, seeking permission to raise the following three grounds which were not taken by him either in the memo. Of appeal or in the concise statement:-
(5) That insufficient time was provided by the High Court to the Government and other officials of the Forest Department to appear and defend the writ petition filed against them by the private respondent;
(ii) that the admission of Advocate-General before the High Court was unauthorized, therefore, it was wrongly taken into consideration by the High Court; and (i.e) that the Government in exercise of powers available to it under Section 67 of the Local Government Act had abolished the levy of import export tax on the timber with effect from 1st of July, 1999 throughout Azad Jammu and Kashmir, therefore, the notification dated 30.11.1999 was issued against the above-referred policy of the Government, which being unlawful was wrongly acted upon by the District Council, Muzaffarabad in awarding contract to private respondent in the sum of 65,00,000/- for collecting the tax on the export of commercial timber from the limits of District Muzaffarabad.
5. The objections were invited from the other side upon this application which were accordingly filed by the respondents on 6.3.2000. In their objections it was submitted by the respondents that the said application was offending the provisions of Order XIX, Rule 6 of the Supreme Court Rules.
On facts it was submitted that service of notices were duly effected upon the appellants and further that without praying for more time for filing written statement the said appellants were not justified in law to blame the High Court for providing them insufficient time. About KLASC it was specifically pleaded that this Corporation is not covered by the definition of aggrieved person, as such, the appeal filed on its behalf is summarily liable to be dismissed.
6. Through a detailed order dated 17.5.2002, point No. 3 which was purely a law point, was allowed to the appellants to be raised through amendment in the concise statement and the respondents were also allowed to file their additional concise statement to that 'extent alongwith any other Government Notification, affidavit, etc.
7. Raja Muhammad Hanif Khan, the learned counsel for the appellants, argued that controversy involved in the writ petition filed by private respondent was in fact related to the enforcement of contract obtained by him from District Council, Muzaffarabad, therefore, his writ petition was not maintainable. The reliance was placed upon a cases titled Azad Government and others v. Neelum Flour Mills, Muzaffarabad (1992 SCR 381), Jawad Hussain Jafri v. Azad Govt. And 4 others (1998 SCR 70) and A.K. Trading Corporation v. Messrs Z. H. Construction and 2 others (1997 SCR 336). In these authorities it was laid down that writ jurisdiction cannot be invoked for the enforcement of contractual liability arising out of the contract. He further argued that important questions of jurisdiction and competence of the Government and that of the District Council, Muzaffarabad were involved, therefore, the High Court was duty bound to decide the same through authoritative judgment even if no assistance in this regard was provided by the parties. The learned counsel further submitted that the private respondent has remedy to claim damages, if any, caused to him and, therefore, was not entitled to seek the enforcement of contractual liability through writ petition. In support of his contention he relied upon a case titled Ghulam Hussain and 3 others v.
Muhammad Bostan and 3 others (PLD 1995 SC (AQUI() 38), wherein it is laid down that existence of adequate remedy is a rule of law barring writ jurisdiction of the High Court. It was specifically laid down that a Constitutional petition can be entertained only where the High Court is of the opinion that alternate remedy is not adequate. According to the learned counsel the tax was abolished first by the Government of Pakistan and the same policy was adapted in the Azad Jammu and Kashmir in order to have the uniform policy in Pakistan and Azad Jammu and Kashmir. In view of this policy decision, the Government of Mad Jammu and Kashmir rightly withdrew the notification dated 20.11.1990 on 17.7.2000. The learned counsel further argued that High Court by declaring the operation of this notification ineffective and inoperative upon the rights of private respondent has given a finding which by itself has created discrimination among the districts and the citizens of the State, because after this decision the Government Notification issued on 17.7.2000 is operative in rest of the districts of Azad Jammu and Kashmir and also against other citizens of the State except the private respondent and District Muzaffarabad. According to the learned counsel the High Court should have directed the private respondent to crave for damages if he had suffered any and not to pass order for the enforcement of the contractual liabilities in exercise of writ jurisdiction. He further argued that in this case the claim of private respondent was admitted by District Council, Muzaffarabad. The District Council, Muzaffarabad being beneficiary its admission should have not been given so much importance as was done by the High. Court. The learned counsel further submitted that under Section 21 of the General Clauses Act the Government was legally competent to withdraw its earlier notification dated 20.11.1999 through subsequent notification dated 17.7.2000.
8. On the other hand Mr. Abdul Rashid Abbasi, the learned counsel for the respondents, supported the judgment under challenge. According to the learned counsel after the process of law and in compliance with the provisions of the Azad Jammu and Kashmir Local Government Act, 1990, the District Council, Muzaffarabad imposed a tax on the export of commercial timber from the limits of District Muzaffarabad. Before imposing this tax a Taxation Committee was set-up and on the basis of the recommendations made by said Committee the tax was imposed after seeking approval of the Government. While elaborating his point of view the learned counsel further argued that various- taxes imposed by. Local bodies in Pakistan were abolished by the Provincial Governments. The tax imposed by local bodies in the Azad Jammu and Kashmir on the export of timber was abolished by the Azad Government through notification dated 3.7.1999. This notification was subsequently revived by, the Government through another notification dated 20.11.1999. On the initiative of Forest Department the said tax was again abolished by the Government vide impugned notification dated' 17.7.2000. The learned counsel further argued that prior to that a contract was awarded to private respondent in an open bid by District Council, Muzaffarabad for the collection of export tax on commercial timber for the years 2000-2001 as he was highest bidder. His client for the purpose of collection of export tax on timber took necessary actions by employing the staff and other matters collateral thereto and thus spent a huge amount. Feeling aggrieved by the notification of the Government dated 17.7.2000, his client in order to protect his interest, was constrained to invoke the writ jurisdiction of the High Court. As the authority of the Government was under challenge in the writ petition, therefore, the High Court rightly admitted the writ petition for regular hearing and issued notices to the official appellants, herein. The Advocate-General was appointed by the appellants, but they failed to supply him necessary instructions, as such no written statement was filed by him before the High Court. However, favourable to his client, the comments were filed by the Local Council Department, Muzaffarabad. In the light of material available on record besides the conduct of the appellants and the admission of Advocate-General,-the High Court was justified to declare the impugned notification of the Government as ineffective and inoperative against the rights of his clients. The learned counsel further argued that the Local Councils are autonomous bodies performing their functions under the Azad Jammu and Kashmir Local Government Act, 1990. The AKLASC as well as the Forest Department have no concern with .The affairs of the said Councils, therefore, the Government on the initiative of Forest Department was not justified in law to abolish the tax which was earlier imposed by it. The notification issued by the Government on the initiative and proposal of the Forest Department or AKLASC on 17.7.2000, therefore, was in total disregard of the relevant law which was rightly held ineffective and inoperative upon the rights of his clients by the High Court. According to the learned counsel the said notification was issued contrary to the provisions of the Rules of Business, 1985, by the Forest Department. The Government had not abolished the tax on the proposal and initiative of the Local Government Department by following the provisions of Section 67 of the Act of 1990, therefore, the abolition of tax by the Government without reference to the District Council was bad in law as it was violative of the relevant law. The learned counsel further submitted that the case of the appellant is self-contradictory because on the one hand it is claimed that the Government was not competent to issue notification dated 17.7.2000, whereas on the other hand the notification issued by the Government on 20.11.1999, is pleaded and argued as being within jurisdictional competence of the Government. According to the learned counsel, both the notifications have been issued by the Government, therefore, the appellants cannot be allowed to blow both hot and cold in the same breath.
9. We have considered the, respective arguments of the learned counsel for the parties and gone through the record of the case. Admitted facts are that in order to have the uniform policy as prevalent in Provinces of Pakistan, the Government of Azad Jammu and Kashmir through a notification dated 3.7.1999 abolished various taxes imposed by local bodies in the Azad Jammu and Kashmir including the tax on the export of commercial timber from the territorial limits of Azad Jammu and Kashmir. After three months the original position was revived as another notification dated 20.11.1999 was issued, whereby local bodies were allowed to impose taxes on the export of commercial timber from the territorial limits of Azad Jammu and Kashmir. After the enforcement of this notification the Local Council, Muzaffarabad invited bids from interested parties for the collection of taxes for the years 2000-2001 on the export of commercial timber from the local limits of District Muzaffarabad. The private respondent being highest bidder was declared successful and was awarded contract of Rs; 65,00,000/- by the District Council, Muzaffarabad. The tax was once again abolished vide Government Notification dated 17.7.2000 at the behest and initiative of forest Department. Respondent No. I, to whom contract was awarded by the District Council, Muzaffarabad for the years 2000-2001, challenged the legality of this notification through a writ petition in the High Court. The appellants except AKLASC were cited in the line of defendants before the High Court. The appellants and proforma respondents in Civil Appeal No. 83 of 2001, failed to appear before the Court despite due service as such were proceeded ex parte. The arguments of the learned counsel for the appellants that proper opportunity to defend the writ petition was not awarded to his client cannot be accepted in this case on simple grounds, that service upon appellant No. 1 was effected on 16.9.2000 whereas the date in the case was fixed on 18.9.2000. We agree with the learned counsel for the respondents that as the office of said respondents was located at a distance of few yards from the Court premises, therefore, there was no difficulty for them to appear before the Court in compliance with the directions contained in the notice and these appellants could also request for an adjournment for, filing their written statement. The service upon other respondents in this case, in our view, was not necessary as they are serving under appellant No. 1 and are performing their duties which are assigned to them by the said appellant. However, service upon respondent No. 2 was also effected on 18.9.2000. The arguments in this case were heard after more than one Month. In this period the appellants could have moved the Court for the vacation of ex pane order. The Advocate-General of the time appeared on behalf of the appellants before the High Court. He never requested that ex pane order recorded against his clients be set aside rather he submitted before the Court that on account of non-co-operation by his clients he was not in a position to defend the impugned legislation. The Government under these circumstances should have moved against those who had not supplied proper material or instructions to the Advocate-General to defend the interest of the Government and its departments before the Nigh Court. The Local Council with the previous sanction of the Government can levy any tax, rates and tolls, etc. Mentioned in Schedule VI of the Act of 1 990.
Admittedly the Government through a notification published in the official Gazette had empowered the local bodies set up at. District and tehsil level, under the provisions of the Act of 1990, to levy different type of taxes. Under the delegated authority of the Government the District Council, Muzaffarabad levy different taxes including the tax on the export of commercial timber from the limits of District Muzaffarabad and later on invited bids from desirous persons to collect such tax on behalf of District Council, Muzaffarabad. The private respondent was one out of them who participated in open bid and was declared successful by District Council, Muzaffarabad. The contract in question for the collection of export tax on commercial timber was given to the private respondent by District Council, Muzaffarabad for the years 2000-2001, therefore, a right had vested in the private respondent when impugned notification dated 17.7.2000 was issued by the Government whereby the tax was again abolished by it. The same notification was enforced throughout Azad Jammu and Kashmir. The private respondent had not filed writ petition against the District Council, Muzaffarabad to enforce the contractual liability, therefore, the High Court was justified in law in holding that his writ petition was maintainable. The private respondent challenged the legality of this Government notification that it was ineffective and inoperative upon his rights as it could not be given retrospective effect. The High Court at the end of the proceedings in his writ petition held so, however, in our opinion, this finding cannot sustain. The reason for this conclusion is that contract was given to private respondent for the years 2000-2001 which period expired on account of litigation between the parties in the Courts of law. No Court can extend this period at this belated stage. In the same way the Government Notification dated 17.7.2000 being acted upon in all other districts of Azad Jammu and Kashmir cannot be suspended in the district of Muzaffarabad as that shall amounts to encroachment in the jurisdictional competence of the Government under law as the Government has made it operative for the whole of Azad Jammu and Kashmir. The third impediment in our view is that this notification cannot be made ineffective to the extent of one citizen and considered effective to the rest of the subjects of the State as that will amount to discrimination having no basis for justifiable classification. The private respondent if so' advised may sue for damages for the expenses incurred by him in the implementation of the contract including other damages.
10. In view of the above, the appeal filed by the Azad Government is allowed and the judgment ..Under challenge is set aside.
11. The appeal filed by AKLASC is not properly constituted simply on the ground that it has no business to interfere within the jurisdictional competence of the Government and Local Government Department and further that appeal has been filed before us through Chairman who cannot exercise these powers without the authority of the Board of Directors in this regard. On account of the aforementioned reasons, the appeal filed by AKLASC is dismissed.