This order will dispose of Writ Petitions Nos.350 of 2002 and 746 of 2003 as common question of law and fact is involved therein.
2. Facts giving rise to Writ Petition No.350 of 2002 are to the effect that one Raja Basharat, ex- Contractor of District Council, Rawalpindi had moved an application before the District Collector/Deputy Commissioner, Rawalpindi against the petitioners that rights of Shamlat land about 4000 Kanals in Mauza Kotha Kalan, Rawalpindi through oral agreement at the rate of Rs.90,000 per Kanal, had been acquired by the petitioners and got the Mutations Nos. 10818 to 10842 sanctioned in their favour. The said area falls within the territorial limits of the District Council, Rawalpindi and Zila Tax is leviable on the oral sale. While sanctioning the mutations in favour of the petitioners the capital value tax and mutation fee amounting to Rs.1,61,80,260 has been evaded. On the application of the ex-Contractor Raja Basharat Hussain an inquiry had been conducted by the Additional District Collector (General). The petitioners raised objections challenging the entire proceedings of inquiry. The Inquiry Officer submitted his, report to the effect that the petitioners are liable for payment of District Council fee, mutation fee and capital value tax and recommended for the recovery of the said amount under the provisions of the Land Revenue Act. After the inquiry report respondent No. 1 (Tehsildar Settlement/Assistant Collector, Rawalpindi) issued notices dated 26-12-2001 and 27-12-2001 for the payment of Rs.80,90,130 as capital value tax and Rs.1,61,80,260 for registration fee and also a notice dated 21-1-2002 for recovery of Rs.2,42,70,400. The petitioners have invoked the Constitutional jurisdiction of this Court through the instant writ petition challenging the vires of the above referred notices and restraining the respondents from recovering the alleged amount of tax/fee, etc. From them.
3. The facts of Writ Petition No.746 of 2003 are to the effect that Excise and Taxation Officer, Rawalpindi/respondent had issued a bill dated 4-2-2003 for the recovery of the amount of Rs.1,61,80,200 on account of tax on transfer of immovable property for the year 1995-96 outstanding against the petitioner and in this respect a demand notice dated 19-3-2003 was also issued to the petitioners.
4. Learned counsel for the petitioners contended that the petitioners have not acquired conveyance rights of the property, therefore, this property is not liable to tax. Further contended that the petitioners are not liable to payment of tax/fee on the transfer of immovable property and that the respondents are not entitled for recovery of capital value tax and the mutation fee, etc. Forcefully contended that after the expiry of period of three years, the respondents are not entitled to effect recovery from the petitioners. Further contended that the amendment made through Finance Act, 1998 is applicable to the present case. Learned counsel relied on the cases of Municipal Committee, Sheikhupura v. Punjab Province (PLD 1951 Lahore 195) and Maya Das and another v. Municipal Committee, Chiniot (AIR 1927 Lahore 161). Further contended that recovery of an amount as arrears of land revenue can be invoked only after the determination of dues outstanding. Reliance has been placed on case of Agricultural Development Bank of Pakistan v.
Sanaullah Khan and others (PLD 1988 SC 67). Further contended that no notice was issued to the petitioners for payment of tax and they have not been provided opportunity to rebut the liability of tax on them. Relied on case of Muhammad Siddique v. Barkat Ali (PLD 1981 Lahore 615).
5. On the other hand, learned Law Officer vehemently opposed the arguments of the learned counsel for the petitioners contending that Writ Petitions Nos.1318 and 1614 of 2000 on the same subject filed by the petitioners have been disposed of by this Court, therefore, the present writ petitions are not maintainable. Further contended that alternate remedy of challenging the assessm ent of tax and the demand notice is available to the petitioners and that question of fact is involved in the matter. The present writ petitions are liable to be dismissed. Lastly contended that amount of crores (tax on immovable property, mutation fee and capital value tax) is outstanding against the petitioners and the petitioners due to one pretext or the other are lingering on the matter and trying to misappropriate the money of exchequer.
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. Section 137 of the Punjab Local Government Ordinance, 1979 empowers a local council to impose taxes. For further benefit, section 137 of the Ordinance is reproduced as under:-- "137. Taxes to be levied.---A local council subject to the provisions of any other law may, and if directed by Government shall levy all or any of the taxes enumerated in the Second Schedule. "
Part II of Second Schedule provides taxes, fees, etc. To be imposed/levied by a District Council, the detail of which is as under:--
(1) Tax on the transfer of immovable property.
(2) Fees for licences, sanctions and permissions granted by the Zila Council.
(3) Market fees for the markets maintained by Zila Council.
(4) Rates on the services like water supply, drainage, lighting provided by the Zila Council.
(5) Fees at fairs, agricultural shows and industrial exhibitions, tournaments and other public gatherings organized and maintained by Zila Council.
(6) Fees for specific services rendered by Zila Council.
(7) Tax for the export of goods and animals from the Zila.
(8) (Omitted).
(9) Toll on roads and bridges and ferries maintained by the Zila Council.
(10) Tax for the construction or maintenance of a work of public utility.
(11) Tax on vehicles other than motor vehicles and including carts, bicycles and tongas.
(12) Tax on professions, trades, callings and employment.
(13) Tax on advertisements.
(14) School fees in respect of schools established or maintained by a Zila Council.
(15) (Omitted).
(16) (Omitted).
(17) Fees on sale of cattle at Cattle Market.
(18) Fee for erection or re-erection of building. "
8. Section 144 of the said Ordinance emerges that (1) All taxes and other charges levied by a local council shall be imposed, assessed, leased, compounded, administered and regulated in such manner as may be provided by rules. (2) Rules framed under this section may among other matters provided for the obligation of the tax-payer and the duties and powers of the officials and other agencies responsible for the assessment and collection of taxes.
9. The rule-making authority (Governor of the Punjab) had made the following rules for imposition of taxes on Transfer of Immovable property as the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981, wherein "transfer of immovable property" has been defined in rule 2(e) as under:-- "'transfer of immovable property' means the conveyance of proprietary rights in any immovable property from one person to another."
The dictionary meaning of word "conveyance" according to Cassell Concise English Dictionary, are, the act of transferring real property from one person to another; and in the Black's Law Dictionary, the word "conveyance" has been defined as transfer of title in land from one person or class of persons, to another by deed. Term may also include assignment, lease, mortgage or encumbrance of land.
10. From the definition and meaning of the word "conveyance" it is clear manifestly that transfer of immovable property means the right in immovable property transferred by one person to another person. In the instant case the petitioners Bahria Town have acquired the rights of transfer of the property and under these rights possession of the land has been delivered to the petitioners and on acquisition of these rights petitioners are further transferring the land by dividing it into small portions (plots) for residential purposes to other people and this fact is admitted and not denied by the petitioners.
11. A local council has been empowered by rule 3 of the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981 to levy tax on the transfer of immovable property situated within its limits. Rule 4 or these Rules further contemplates that (1) Where an immovable property transferre4 through a registered deed, the tax shall become due as soon as the sale-deed is registered and may be assessed and collected by the Taxation Officer either directly or through the Registrar or Sub-Registrar concerned if so authorized by the Board of Revenue either by a general or special order. (2) Where an immovable property is transferred orally and such transfer is followed by a mutation in the Revenue office, the tax shall become due as soon as the mutation is sanctioned and may be assesses: and collected by the Taxation Officer either directly or through the Revenue Officer concerned if so authorized by the Board of Revenue either by a general or a special order. (3) Where a transfer is not covered by sub-rule (1) or sub-rule (2), the tax shall become due as soon as the sale takes place and may be assessed and collected by the Taxation Officer at the office or local council.
12. It is also admitted fact that the property has been transferred in favour of Bahria Town (petitioners) through oral mutations and through the decree of the Civil Court and the decree of the Civil Court is 'to be implemented on the Revenue Record through a mutation of sale. Rule 7 of the Rules has further empowered that if the tax assessed under rule 4 is not paid, it shall be recoverable as arrears of land revenue.
13. The petitioners have challenged the demand notice and the bill sent by the respondents to the petitioners for payment of Rs.1,61,80,200 as demanded by the Inquiry Officer/Taxation Officer, respondent in Writ Petition No.746 of 2003.
14. An alternate remedy was available to the petitioners against assessment of tax and recovery of the same as arrears of lane revenue by filing appeal under rule 8 of the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981, which reads as under:-- "8. Appeal.---Any person aggrieved by an order under rule 4 or rule 7, may prefer an appeal to the Chairman of the Local Council within thirty days of the date of such order and the order passed by the Chairman on appeal shall be final."
15. The matter in dispute has been sub judice in this Court at different occasions in Writ Petition No. 1318 of 2000 (Raja Basharat Hussain v. District Collector, etc.) and Writ Petition No.1614 of 2000 (Bahria Town Pvt. Limited v. Deputy Commissioner, Rawalpindi, etc.). The petitioners have failed to avail of alternate remedy of tiling an appeal against the assessment and recovery of tax on transfer of immovable property in favour of Bahria Town.
16. As to the argument of the learned counsel for the petitioners that the petitioners are not liable to make the payment of tax or that amount of tax has not been assessed, the petitioners could raise these objections before the Appellate Authority.
1 7. As to the question of non-liability of the capital value tax, rule 7 of the Capital Value Tax Rules, 1990 enumerates that a tax on the capital value of assets, to be called the Capital Value Tax, shall be payable by every individual (association of persons, firm or a company which) acquires by purchase an asset or a right to the use thereof for more than twenty years.
18. In the instant case no doubt the petitioners have acquired the assets being the property and their right of use of the immovable property are rights of transferring the same by establishing a housing colony and making portions/plots of this property, therefore, capital value tax on the land falling in Bahria Town is liable to be Capital Value Tax and the petitioners if are dissatisfied they may challenge the same before next higher authority under the law.
19. As to the collection of the mutation fee section 46 of the West Pakistan Lana Revenue Act, 1967 empowers the Board of Revenue to fix a scale of fees for all or any classes of entries in any record or register under this Chapter and for copies of any such entries. A fee in respect of any entry shall be payable by the person in whose favour the entry is made.
20. It means that the mutation fee is leviable on the person who acquires rights in the property, meaning thereby, a transferee on purchaser is responsible for payment of mutation fee.
21. So far as the recovery of mutation fee, as provided by section 46 of the West Pakistan Land Revenue Act is concerned, the Collector/Revenue hierarchy is empowered to recover or collect the same from the defaulter and the functionaries of the District Government cannot proceed against the petitioners/defaulters for recovery of mutation, fee but as to the collection of Capital Value Tax and the tax on the transfer of immovable' property, the District Government has been delegated powers to collect the same and after collection to deposit in the relevant head. As to the recovery of tax on the transfer property is concerned it is the power of the local council to impose and collect the same. As observed in the preceding paragraphs that alternate remedy against the collection of Capital Value Tax and the tax on the transfer of immovable property is available to the petitioners and without exhausting that remedy the petitioners have knocked the Constitutional jurisdiction of this Court. It has been observed in case of Bangui v. Province of Sindh and others (2001 PCr.LJ 1700 Karachi) that Constitutional jurisdictions of High Court is not an additional or alternate jurisdiction. High Court can issue writ if the Court is satisfied that no other efficacious or adequate remedy is available under law. In such-like cases High Court never exercises its Constitutional jurisdiction even if vires of law have been challenged. A reference in this context can be made to the case of Nur Alam v. Special Judge, Prevention of Smuggling Act, 1977, N.-W.F.P., Peshawar and 2 others (2001 PCr.LJ 669) (Peshawar) in other case, New Jubillee. Insurance v. A.C., Customs (2001 YLR 2696) (Lahore): it has been observed that Departmental remedies or procedure should not be short-circuited by exercising Constitutional jurisdiction barring certain recognized exceptions. Constitutional petition would not be maintainable when remedy by way of appeal or revision provided under the relevant law was not availed of. In case of Messrs Royal Flying Coach (Pvt., Ltd. Through Chairman v. Collector (Appeals), Customs and Excise, Lahore and another (2001 CLC 1477) (Lahore), it has been observed that where it was open to an aggrieved person to move another forum or Tribunal for his remedy in the manner prescribed in a statute, High Court would no, by entertaining petition under Article 199 of Constitution of Pakistan permit the machinery provided in a statute to be bypassed. Primarily it was discretion of the Court to grant or refuse the relief if it was satisfied that an, aggrieved party could have an alternative remedy elsewhere. Relief under Article 199 was not to be provided where the alternative remedy existed unless there was any exceptional reason warranting exercise of extraordinary power under Article 199.
22. It is admitted position that on application of ex-Contractor Raja Basharat Hussain on the allegation of evasion of tax by Bahria Town/petitioners an inquiry had been conducted by Additional District Commissioner (General) who found that the petitioners (Bahria Town) is liable to pay District Council fee amounting to Rs.1,61,80,260 and also mutation fee and Capital Value Tax.
This inquiry report has not been challenged by the petitioners before any appropriate forum and that is still in field. Unless the allegations proved in the report are not set aside or disproved by the petitioners it shall remain in field. In the inquiry proceedings Colonel Akhtar Saeed, Manager Coordination, Bahria Town appeared before the Inquiry Officer and admitted that the petitioners paid fee to Zila Council. He also admitted that he got transferred the property through the decrees of Civil Court on the basis of which mutations were sanctioned in favour of the petitioners. Another aspect of the case is that during the inquiry proceedings petitioner's company, through Ch. Fazal- ur-Rehman's, Advocate had made an application on 25-2--1999 for permission to deposit mutation fee in instalments. In paragraph No.4 of the application it has been stated that the petitioners had already paid the District Council fee amounting to over Rs.88,00,000 and is prepared to pay the mutation fee after checking and verification. It means that the petitioners had admitted the responsibility of making District Council fee (tax on the transfer of immovable property). The argument of the learned counsel for the petitioners that the petitioners are not liable to make payment of the tax is also belied from the record and it is settled proposition of law that admitted fact need not be proved. On the basis statement trade by Colonel (Retd.) Akhtar Saeed, the Inquiry Officer, made the observation to the effect that Bahria Town had taken/admitted the responsibility to make payment of C.V. Tax as well as the District Council Fee.
23. There is another aspect of the case that question involved in these petitions pertains to question of fact which requires recording of evidence and examination or record. If there is disputed question of fact resolution of which, would entail a detailed inquiry and as such jurisdiction of High Court under Article 199 would not attract. Reliance can be placed to case of Zia Travels, Faisalabad v. Secretary, Regional Transport Authority, Faisalabad Division and 4 others (PLD 2001 Lahore 70). High Court in exercise of its powers under Article 199 of the Constitution would not, ordinarily embark upon an exercise to determine intricate contentions and complicated questions of fact. Resolution of such controversial issues is ordinarily left to the proper forums prescribed by the law because indulging in such an exercise would have the effect of pre-empting and encroaching upon the jurisdiction lawfully vesting in the competent Officers and Courts.
Involvement of High Court in matters which can be competently, properly and adequately dealt with by other forums prescribed by law, might have adverse effect on the disposal of matters which have to be dealt with exclusively by High Court. Reliance in this respect can be placed on the case of Haji Muhammad Sadiq v. Ilaqa Magistrate, Police Station Factory Area, Faisalabad and others (2001 PCr.LJ 1571) (Lahore). Further reliance in this respect can be placed on the cases of Managing Committee, Revenue Employees Cooperative Housing Society, Rawalpindi through Secretary v. Secretary, Cooperative Societies, Government of Punjab, Lahore and 3 others (2001 CLC 838) (Lahore) and Muhammad Younis Khan and others v. Government of N.-W. F. P. And others, (1903 SCMR 618).
24. The learned counsel for the petitioners has relied on case of Municipal Committee, Sheikhupura v. Punjab Province (PLD 1951 Lahore. 195). In the said case Municipal Committee, Sheikhupura made a demand for house-tax far from the Executive Engineer (Canals) of the Upper Chanab Circle for the period 1st July, 1922 to 31st March, 1938, whereupon after some correspondence, the Executive Engineer moved Government and a suit was filed by the Government for a declaration that the demand in question was barred by time and for the issue of an injunction that the Municipal Committee of Sheikhupura be restrained from taking any steps for the realization of the tax in question but herein this case, the suit has not been filed by the petitioners. Only demand notice and bill were sent for payment of the tax. The facts of that case are not attracted to the present case. In case of Maya Das and another v. Municipal Committee, Chiniot (AIR 1927 Lahore 161), the Municipal Committee Chiniot, District Jhang, had provided a stand for the tumtums within the Municipal limits. Every tumtum owner had to pay a certain sum by way of rent or toll, obviously for the use of the aforesaid stand. The collection of this toll or rent was leased by the Municipal Committee to Bhagwan Das and Maya Das, petitioner for the years 1923-24 in lieu of Rs.904 payable in three equal instalments and it was observed in this case that the amount due could be recovered through a law suit because the amount claimed by the Municipal Committee was not the amount due. The facts of this case are not applicable to the present case he case of Muhammad Siddique v. Barkat Ali (PLD 1981 Lahore 615) is with regard to the tenancy between the landlord and tenant and the facts and principles of this case are not attracted to the case in hand.
The principle settled in case of Agricultural Development Bank of Pakistan v. Sanaullah Khan and others (PLD 1988 SC 67) is also not applicable to the present case, wherein it has been observed that the amount as arrears of land revenue can only be recovered after, determination of arrears due by a certificate of the Collector and in absence of such certificate the persons concerned being without given opportunity of hearing will not be defaulters within the meaning of law. In the instant case only demand notice and bill were sent to the petitioners for which, they had the alternate remedy to impugn the same and raise all the objections and establish whether the amount claimed by the respondent is the amount due or not.
25. For the foregoing reasons and by following the dictums laid down by the superior Courts, these writ petitions being devoid of force are dismissed. Record be remitted immediately.