The Quality Schools Foundation vs F.O.P. etc.

Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

Case No: W.P.No.683/2023 Quality Schools Foundation Versus Federation of Pakistan etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of Proceeding Proceeding Parties or counsel, where necessary.

30.04.2025 Mr. Rizwan Niaz, ASC for the Petitioner. Mr. Muhammad Arshad Malik, Assistant Attorney General.

Ch. Muhammad Yaqoob, ASC on behalf of the Respondents No.2 and 3.

The Petitioner, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), has assailed the action of the Respondent No.3 who is demanding property tax alongwith conservancy charges from it as per Regulation No.51, dated

2.Mr. Rizwan Niaz, ASC submitted that the Petitioner, being a charitable (educational) entity, is exempted from levy of property tax as well as other charges in light of notification No.123/3/G/D-5/56/2313, dated 15/16.05.1956. He maintains that it is an admitted position that the premises in question is being used for education purposes and the act of sealing its building merely on the basis that the ownership rights, which are presently, existing in the name of previous owner instead of the present owner by itself is not a valid reason to recall the exemption already granted

W.P.No.683/2023

through the aforesaid notification. He next argues that the aforesaid regulation is illegal and without lawful authority. He contends that licence has been issued to the Petitioner for running the said charitable educational institution after thorough scrutiny and satisfaction of concerned authority strictly as per provisions of Section 42 of the Companies Ordinance, 1984 [now the Companies Act, 2017]. In support of his submissions, he has placed reliance on the judgments reported as Director Manager, Pakistan International Airlines Corporation, Lahore versus Excise and Taxation Officer, Zone No.10, Lahore and others (PLD 2021 Lahore 86), Chief Administrator of Auqaf, Peshawar versus Cantonment Board, Peshawar through Executive Officer and others (2021 MLD 346), Messrs Pakistan Telecommunication Authority versus Federation of Pakistan and others (2020 PTD 1683), Expo Lahore (Private) Limited versus Excise and Taxation Department, Government of the Punjab and others (2018 CLC 1602) and Mehar Pervaiz Akhtar versus Director General Excise and Taxation, Lahore and others (PLD 2017 Lahore 790). Reliance is also placed on the principles settled by the Supreme Court of Pakistan in the judgment reported as Dr. Abdul Nabi, Professor, Department of Chemistry, University of Balochistan, Sariab Road, Quetta versus Executive Officer, Cantonment Board, Quetta (2023 SCMR 1267).

3.Conversely, Ch. Muhammad Yaqoob, ASC appearing on behalf of the Respondents No.2

W.P.No.683/2023

and 3 submits that the Petitioner has approached this Court without exhausting alternate remedies before the concerned authorities/forums under the Cantonment Act, 1924 (the “Act”). He explains that the Petitioner can first approach the Assessment Committee in terms of Section 68(2) of the Act and in case of any adverse order by the said Committee, remedies of appeal as well as review are provided under Sections 84 and 88 of the Act whereas decision of the appellate authority can be challenged in revision under Section 277 of the Act. However, he, while drawing attention of the Court towards the Policy of 2009 introduced by the Military Lands & Cantonments Department Government of Pakistan through letter dated 08.05.2009, next argues that if the Petitioner provides the requisite information as required in para-2 of the said letter, its case for exemption can be considered by the concerned authority.

4.Arguments have been heard and record perused.

5.It is well-settled principle that the availability of an alternate and efficacious statutory remedy bars the invocation of constitutional jurisdiction under Article 199 of the Constitution. In this regard, the Supreme Court of Pakistan has already given certain views from time to time. In the case of Province of Punjab through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central) Punjab Highway Department, Lahore versus Yasir Majeed Sheikh and others (2021 SCMR 624), it

W.P.No.683/2023

has been held that the extraordinary writ jurisdiction of the High Court is not intended to supplant statutory remedies, particularly where disputed questions of fact necessitate evidence- based adjudication. While dealing identical issue, in the judgment reported as Sana Jamali versus Mujeeb Qamar and another (2023 SCMR 316), the Supreme Court of Pakistan has also discussed in detail the Doctrine of Exhaustion of Remedies to hold that under this doctrine the litigants have to first avail the remedies provided to them under special laws before resorting to constitutional petitions. Similarly, in a subsequent judgment cited as Mian Azam Waheed and 2 others versus The Collector of customs through Additional Collector of Customs, Karachi (2023 SCMR 1247) the Supreme Court of Pakistan has deprecated the tendency to bypass stator review mechanism and emphasized that writ jurisdiction cannot be exploited as a “solitary resolution” when adequate remedies exist under the law. Then, this principle has been further strengthened in the case of Special Secretary-II (Law and Order), Home and Tribal Affairs Department, Government of Khyber Pakhtunkhwa, Peshawar and others versus Fayyaz Dawar (2023 SCMR 1442) by holding that the disputed factual controversies, specifically relating to compensation claims, must be resolved through civil suits, not writ petitions, because where the law provides a specific forum in the shape of filing an appeal, review or suit, the constitutional jurisdiction of High Court cannot be

W.P.No.683/2023

invoked merely to circumvent legislative intent, which view has now been reaffirmed in the recent judgment reported as Syed Masood Ali versus Mst. Feroza begum and another (PLD 2025 SC 339). The concept of availing alternate remedy has been further fortified by the Supreme Court of Pakistan in another recent judgment reported as The Executive Director (P&GS) State Life, Principal Office Karachi and others versus Muhammad Nisar, Area Manager, State Life Corporation of Pakistan, Peshawar Zone, Peshawar (2025 SCMR 249) by observing that if some complicated or disputed question of facts is involved and the adjudication of which could only possible to be resolved and decided by the Courts of plenary jurisdiction after recording evidence of the parties then obviously the High Court should not embark on deciding convoluted issues of facts. In the said case, it has been further held that the extraordinary jurisdiction under Article 199 of the Constitution is envisioned predominantly for affording an express remedy where the unlawfulness and impropriety of the action of an executive or other governmental authority could be substantiated without any inquiry and the expression “adequate remedy” signifies an effectual, accessible, advantageous and expeditious remedy, therefore, the litigants must adhere to the statutory framework and the High Court must exercise restraint to preserve the integrity of specialized remedies.

W.P.No.683/2023

6.In view of the above, since alternate remedies are available to the Petitioner and the same have not been exhausted by it so far, as pointed out by learned counsel for the Respondents, this Court cannot intervene into the matter at this pre-mature stage in light of the verdicts given by the Supreme Court of Pakistan from time to time in the aforesaid cases. Let a copy of this petition alongwith all the annexures be transmitted to the Assessment Committee which will grant a fair opportunity of hearing to all concerned including the Petitioner; carefully go through the averments made by the Petitioner in this petition as well as the principles laid down in the judgments relied upon by learned counsel for the Petitioner and then pass a speaking order in the matter within four weeks from the receipt of certified copy of this order. The Petitioner shall also provide all the requisite information and documents to the Assessment Committee as per the (aforesaid) Policy of 2009, issued vide letter dated 08.05.2009.

Disposed of.

(JAWAD HASSAN)

JUDGE

*Mãjîd