SHEIKH AKHTAR ALI Versus FEDERATION OF PAKISTAN AND 4 OTHER

MUHAMMAD AMIN, BUTT, J . ‑The petitioner is a Director of Messrs Vulcan Company Limited and Messrs Metropole Cinema Limited, Lahore. Before February 1972 the Income‑tax Officer (Company) Ward III, Lahore, was exercising Jurisdiction over his case in relation to assessment under the Income‑tax Act, 1922. On 7‑2‑1972 the Central Board of Revenue assigned the jurisdiction over the petitioner's, case of the Commissioner of Income tax (Investigation), Karachi, who in turn assigned the case to the Income‑tax Officer (Investigation) Circle‑IV Lahore vide his order dated 12‑2‑1972. By air order dated 11‑5‑1972 the Commissioner transferred the jurisdiction to the Income‑tax Officer (Investigation) Circle‑III.

2: At the time of transfer of the case to respondent No. 4 the peti tioner's assessments for 1969‑70, 1970‑7I and 1971‑72 were pending. According to the petitioner, the respondent No. 4 summoned him to appear before hire on 24‑8‑1972 in connection with the assessment of the cases then pending. He claims to have attended in the Company of his Accountant Mr. Ghulam Rasul Malik and Manager Mr. Ijaz Malik, respondent No. 4 made him wait outside his office for about two hours and upon being reminded the petitioner was culled in. Another Income tax Officer Mr. Javed Ahmad Noel who had in the past been hearing Income‑tax cases of the petitioner and/or his brother, was also present. He left only to return soon after. According to the petitioner Mr. Javed Ahmad Noel and respondent No. 4 abused the petitioner in the filthiest of languages and hurled the Income‑tax file on the petitioner's face and asked him to get out: The petitioner appears to have reported the matter q to the police tire same day. A copy of the report has been placed on record as Annexure `E'. According to the petitioner no action was taken by the police whereupon he had to file a private complaint for prosecution of respondent No. 4 and Mr. Javed Ahmad Noel for offences under sections 323, 352, .504 and 506, P. P. C. After recording the preliminary evidence, the learned Additional District Magistrate, Lahore, passed orders dated 25‑5‑1972 summoning the accused to stand trial whereupon the respondent/accused furnished bail bonds. It appears that on 16‑10‑1972 an application, viz. Criminal Miscellaneous No. 44/Q of 1972 filed by the respondent No. 4 and Javed Ahmad Noel was admitted by the High Court which, the learned counsel for the petitioner states, was later dismissed.

3. The original assessment for 1967‑68 had been decided by the Income‑tax Officer (Company), Ward III, Lahore, on 28‑8‑1967. A notice under section 34 of the Income‑tax Act, 1922 was issued by respon dent No. 4 on 12‑1‑1973 requiring the assessee to submit a return of total income within 35 days as he was of the view that income, profits and gains liable to tax had escaped assessment.

4. The learned counsel for the petitioner States that on 26‑5‑1973 the petitioner again attended the office of respondent No. 4 in the company of his Accountant Malik Ghulam Rasul and Rana Muhammad Anwar Chartered Accountant in response to a notice issued by him. On this occasion a verbal wrangle again started between the petitioner and respondent No. 4 whereupon the petitioner had again the occasion to report the matter to the police, a copy of which has also been submitted with the writ petition as Annex, 'I'. The matter was brought to the notice, of the Commissioner of Income‑tax. On 28‑5‑1973 the petitioner appears to have requested the Chairman, Central Board of Revenue, Secretary Administration, Central Board of Revenue, and Secretary Finance for transfer of his case.

5. The learned counsel for the petitioner further claims that a for mal application was moved before respondent No. 4 inter alia objecting to the exercise of jurisdiction by him on the ground of bias, malice and ill‑will against the petitions, a copy of which has also been submitted with the writ petition as Annexure; `A'. The learned counsel, however, states that no decision was taken or conveyed by respondent No. 4 on the specific objection.

6. Before dealing with the points raised by the learned counsel for the petitioner we may deal with the preliminary objection raised on behalf of the respondents. It is contended that the petitioner in this case had an adequate alternate remedy available to him by way of reference under the provisions of section 66 of the Income‑tax Act, 1922 and for that reason it was not open to the petitioner to have invoked the extraordinary jurisdiction of the Court.

In reply the learned counsel for the petitioner contends that the petitioner in this case inter alia objected to the assumption and exercise of jurisdiction by respondent No. 4 but his formal application in this behalf was not disposed of by respondent No. 4. Even on appeal the Tribunal did not deal with the objection although the point was specifically raised by the grounds of appeal and as well as the additional grounds of appeal submitted on 8‑11‑1973. The learned counsel explains that in a reference application under section 66(1) only questions which arise out of the order of the Appellate Tribunal may be raised on they facts as found by the Tribunal making it difficult for the petitioner in a reference to urge or establish facts on which no finding has been recorded by the Tribunal although such facts are supported by documentary evidence.

7. The writ petition was filed on 7‑3‑1974. Later a reference application was filed on 10‑6‑1974 which the petitioner has chosen to withdraw for the reason that the scope of the reference is very much narrower.

The learned counsel for the assessee explains that with the writ petition he has submitted copies of the notices, the police reports and the complaints, etc, made to the police and the higher authorities, which did not form a part of the reference application. The learned counsel states that the writ petition questions the jurisdiction of respondent No. 4 any brings out his failure to decide objections to the exercise of further jurisdiction taken before him which are supported by documentary evi dence and may form proper subject‑matter of proceedings under Article 199 of the Constitution. The learned counsel contends that even the existence of an alternate remedy is no bar in a case like the present, The learned counsel for the petitioner has drawn our attention to certain observations made by their Lordship of the Supreme Court in the case Nagina Silk Mills v. Income‑tax Officer P L D 1963 S C 322 where it was held:‑

"In cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, a certiorari may be granted even though the right of necessary appeal had not been availed of certain amount of flexibility is allowed by the law in the case of a prayer for a writ of certiorari as compared with a case for a mandamus. If the application for certiorari is made by a party aggrieved, then it ought to be granted ex debito justitiae and the High Court has not the general discretion which it would have, when the application is made by a member of the public, who is not personally concerned. This would specially be the case where alternative remedy provided by the relevant statutes is not as efficacious, speedy or convenient as the one available under the writ jurisdiction of the High Court."

The observations made in the above judgment were quoted with approval by the Supreme Court in Premier Cloth Mills Ltd. v. Sales Tax officer 1972 S C M R 237. The learned counsel also referred to the observations made it Murree Brewery Co. Ltd. v. Pakistan P L D 1972 S C 279 where the Supreme Court expressed the view "the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of Jaw barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well‑recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party". In the case of Salahuddin v. Frontier Sugar Mill and Distillery Ltd. P L D 1975 S C 244 wherein the previous case law of the Supreme Court was discussed and even the filing of a civil suit by the party moving the writ petition was held to be no bar to the maintainability of a writ petition.

8. After giving the matter our anxious consideration we are of the view that the alternate remedy in this case was not adequate and equal efficacious for reasons earlier stated and that even the existence of an alternate remedy would not operate to debar a petitioner from invoking the extraordinary jurisdiction of this Court, The preliminary objection is overruled.

9. Before us the learned counsel for the petitioner has raised the following objections: (i) that the order passed by the Member Central Board of Revenue assigning the jurisdiction over the petitioner's case to the Commissioner of Income‑tax (Investigation) violates the principle of natural justice as the Member Central Board of Revenue acted under the directions of the Martial Law Authorities on the report of a former employee of the Vulcan Engineering Company and the decision taken at the back of the petitioner offends the principle of audi alteram partem; (ii) that the assignment of jurisdiction over the petitioner's case to respondent No. 4 involved the transfer of 'the petitioner's case and the Commissioner Income‑tax (Investigation) should not have assigned the case to the respondent No. 4 without hearing the petitioner; (iii) that the order of the Income‑tax Officer was vitiated on account of bias and had no existence in the eye of law and that the order of the Tribunal had as little foundation in law as that of the Income‑tax Officer; (iv) that the assumption of jurisdiction under section 34 is illegal because the Income‑tax Officer re‑opened the case without being in possession of any definite information and without the prior approval of the Inspecting Assistant Commissioner; and (v) that the order of the Income‑tax Officer is vitiated on account of his failure to decide the application dated 31‑5‑1973.

10. Of the six objection taken by the learned counsel for the Petitioner which have been enumerated above, we propose to deal with objection No. (iii) relating to the question whether the order of assess ment dated 29‑6‑1973 passed by respondent No. 4 is vitiated on account of bias.

11. The learned counsel for the petitioner contends that when an objection is taken to the jurisdiction of a Court or authority, it must be regarded as a preliminary objection and must be decided before further proceedings are taken. In support of the argument the learned counsel relied upon the following observations made by Mr. Justice Manzoor Qadir in the case Akhtar Ali v. Altaf‑ur‑Rehman P L D 1963 Lah. 390:

"It seems to me that when an objection is taker, to the jurisdiction of the Tribunal, that objection must be treated as a preliminary objection and must be resolved before taking any further action. That, however, does not mean that once an objection to jurisdiction is taken, an adjournment in the case must automatically follow. An adjournment in the case is necessitated only when the question raised is one that can be determined by that Tribunal and requires materials which are not before the Tribunal and to bring which time is necessary. If the objection raised is capable of being considered and disposed of on the materials before the Tribunal, an adjournment ought not to be granted."

The learned counsel has drawn our attention to the fact that objec tion was taken by the petitioner on 31‑5‑1973 (vide Annex: `A') but respondent No. 4 did not decide the application either forthwith as required by law or even as a part of the order of assessment dated 19‑6‑1973. The Tribunal also did not deal with the question specifically raised.

The learned counsel for the petitioner next drew our attention to Mrs. Saeeda Tasneem Ara v. Province of West Pakistan P L D 1967 Lah. 1112 wherein the Lahore High Court after review of the case law came to the conclusion that the maxim: Nemo debt esse judex in propria cause (No one shall be a Judge in his own cause) applies with full force to departmental inquiries where orders have to be passed to disadvantage of functionaries of State. The Court observed that the character of the action taken in a departmental case and nature of the judicial proceedings are akin and the purpose of observing fairness in both such cases in to maintain public confidence. [Underlining* is mine.] It is as much necessary in a departmental enquiry as in a judicial proceedings that the mind of the officer who is ultimately responsible to draw conclusion from the record of a case should travel in the straight furrow of detached and objective thinking and there should be no apprehension of its deflection on account of personal bias or ill‑will. If there is any ground for saying that the mind of the adjudicating authority may have been affected by some personal dislike or rancour his action is liable to be set at naught.

12. We may also refer to the following observations made by S. A. De Smith in his book on the Constitutional and Administrative Law, Second Edition, at page 575: ‑

"If an adjudicator is likely to be biased he is also disqualified from acting. Likelihood of bias may arise from a number of causes; membership of an organization that is a party to the proceed ings; partisanship expressed in extra‑judicial pronouncement; the fact of appearing as a witness for a party to the proceedings; personal animostly or friendship towards a party; family relationship with a professional or commercial relationships with a party; and so on. The categories of situations potentially giving rise to a likelihood of bias are not closed."

13. The learned counsel for the respondents is unable to dispute the fact that the petitioner had on 31‑5‑1973 moved a formal application to respondent No. 4 calling upon him not to exercise jurisdiction, as he stood disqualified inter alia on the ground of personal bias. It is also not denied that the petitioner had reported twice to the police against the misbehaviour and use of filthy language by respondent. No. 4 and Mrs. Javed Ahmad Noel and then filed a private complaint to have them prosecuted and punished. It is also not denied that the petitioner bad brought these facts to the notice of the Commissioner, the Secre tary, the Member and the Chairman, Board of Revenue arid prayed for their intervention to have his case transferred yet the Commissioner of Income‑tax thought it not fit to transfer his case to another Income‑tax Officer under his control. It is not a case where the proceedings could not have been transferred to another Income‑tax Officer. It is not denied that there was a large number of offices under the control of Commis sioner Income‑tax (investigation) who could have easily assigned the jurisdiction over this case to any other officer under his control. In the context of pending criminal prosecution, respondent No. 4 was allowed to continue to deal with the petitioner's case and to decide his fate in relation to a matter which involved substantial monetary liability. We have the feeling that the petitioner has been denied a fair trial to which he was entitled under the taw. Justice should not only be done but must also appear to have been done. To our mind the attitude of the Commissioner is bound to undermine the confidence of the public in the fair administration of the Income‑tax law.

14. In the result the order dated 29‑6‑1973 passed by the Income‑tax Officer and the order dated 8‑i I‑1973 passed by the Appellate Tribunal are declared as without lawful authority and of no legal effect. We direct the Commissioner Income‑tax (Investigation) or his successor to assign the jurisdiction over this case to any other Income‑tax Officer who shall proceed to decide the case afresh in accordance with law. The petitioner shall, however, be free to raise all objections including objec tion to the legality or validity of proceedings under section 34 of the Income‑tax Act.

15. The respondents to bear the costs of the petitioner.

Order accordingly.