Azhar Ali Vs Province of Punjab through Secretary Local Govt etc

2021 Y L R 545

[Lahore]

Before Jawad Hassan, J

AZHAR ALI---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 203389 of 2018, heard on 16th November, 2020.

Punjab Local Government Act (XVIII of 2013) [since repealed]--- ----Ss. 154 & 143---Punjab Local Government (Appeal) Rules, 2007, R.4---Constitution of Pakistan, Art. 199---Constitutional petition---Alternate remedy, availability of--- Maintainability---Scope---Petitioner assailed enhancement of licence fee for establishment of a rice mill and notice of recovery---Contention of petitioner was that impugned notification issued under Punjab Local Government Ordinance, 2001, did not hold field as the same was repealed on 28-08-2013 by promulgation of Punjab Local Government Act, 2013---Validity-- -Section 154(2) of the Punjab Local Government Act, 2013, clearly stated that tax or fee levied under the repealed Ordinance shall continue to be in force and have effect as if it were respectively done, taken, commenced, made, directed, passed, given, executed or issued under the Act---Section 153 of the Punjab Local Government Act, 2013, empowered the successor local government to charge levy and collect all the taxes, etc., which were charged under the repealed Act---Petitioner had a right of appeal against the impugned notice under S.143 of the Punjab Local Government Act, 2013, read with R.4 of Punjab Local Government (Appeal) Rules, 2017---Petitioner had the alternate remedy before the authority concerned, therefore, the constitutional petition was not maintainable---Petition was dismissed.

Ch. Sabir Ali v. City District Government and others PLD 2017 Lah. 370; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 ref.

Muhammad Amin Goraya for Petitioner.

Barrister Hassan Khalid Ranjha, Assistant Advocate-General for Respondents.

Date of hearing: 16th November, 2020.

JUDGMENT

JAWAD HASSAN, J.---Through the instant Constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has challenged Notification dated 04.01.2018 and Notice dated 14.04.2018 issued by the Respondents.

2.Facts of the case are that the Petitioner established a rice mill and in the month of January, 2016 he approached the office of the Respondent No.2 for renewal of his license and payment of license fee. It was revealed to him that the aforesaid Respondent cancelled previous notification and vide notification dated 10.05.2015 fresh schedule levying huge amount of tax/license fee has been imposed thereby enhancing license fee from Rs.15000/- to Rs.50000/-. The Respondent No.3 issued notice of recovery dated 14.04.2018 in terms of Notification dated 04.01.2018. Hence this petition.

3.Learned counsel for the Petitioner inter alia contended that the impugned Notification issued under the Punjab Local Government Ordinance, 2001 (the "Ordinance") does not hold the field as the same has been repealed on 28.08.2013 by the promulgation of the Punjab Local Government Act, 2013 (the "Act"); that the Respondents have no lawful authority to enhance the license fee without adopting the proper procedure provided by law; that enhancement of fee at excessive rate is violation of rights guaranteed by the Constitution; that the impugned notice is against section 15(iv) of the Act; that the act of the Respo ndents is illegal and unlawful therefore, impugned notification and recovery notice are liable to be set-aside.

4.Learned law officer objected to the maintainability of the petition on the ground that the Petitioner has efficacious and alternate remedy against the impugned recovery notice. Report and parawise comments were submitted wherein it was stated that the Respondents are competent to increase the fee in terms of section 115(5) of the Act. It was further stated that section 154 of the Act provides that by-laws made under repealed Ordinance shall continue to be in force and have effect as if it were respectively done, taken, commenced, made, directed, passed, given, executed or issued under the Act. Learned Law Officer argues that section 153 of the Act empowers the successor local government to charge levy and collect all taxes etc as such the impugned notice was rightly issued by the Respondent as per law.

5.I have heard the arguments and perused the record.

6.So far as the argument of learned counsel that the impugned Notification issued under the repealed Ordinance does not hold the field, is concerned, firstly according to section 154(1) of the Act, the Ordinance was repealed and secondly section 154(2) clearly states that tax or fee levied under the repealed Ordinance shall continue to be in force and have effect as if it were respectively done, taken, commenced, made directed, passed, given, executed or issued under the Act. Moreover, section 153 of the Act empowers the successor local government to charge levy and collect all the taxes etc which were charged under the repealed Ordinance. Furthermore, this issue has already been decided by this Court in "Ch. Sabir Ali v. City District Government and others" (PLD 2017 Lahore 370). So this argument of learned counsel is weightless.

7.It evinces from the perusal of impugned notice dated 14.04.2018 that it was issued by the Metropolitan Corporation, Lahore. Section 143 of the Act read with Rule 4 of the Punjab Local Government (Appeal) Rules, 2017 (the "Rules") provides a remedy of appeal. Section 143 of the Act reads as under:

143.Appeals.---A person aggrieved by any order passed by a local government or its functionaries may prefer an appeal to such authority, in such manner and within such time as may be prescribed and an order passed in appeal shall be final.

8.From the bare reading of the above-said section it is very much clear that the aggrieved person has a right of appeal against any order passed by a local government or its functionaries. In this view of the matter, the Petitioner has the alternate remedy before the authority concerned. While dealing with the question of maintainability of a petition before this Court in the wake of an alternate efficacious remedy available to a litigant, the Hon'ble Supreme Court of Pakistan in judgments reported as "Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others" (2016 SCMR 842), "Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others" (2011 SCMR 1813) and "Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others" (PLD 2010 SC 969) has held that in such cases jurisdiction of this Court under Article 199 of the Constitution cannot be invoked.

9.From the above, it can safely be held that this Court is bound to exercise its extra ordinary Constitutional jurisdiction where no other adequate remedy is provided by law but in the present case alternate remedy by filing an Appeal is available to the Petitioner, therefore, this petition is not maintainable, hence dismissed.

SA/A-85/L Petition dismisse