M/s. DAEWOO CORPORATION vs GOVERNMENT OF PUNJAB and others
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court, which dismissed the petitioners' writ petitions challenging the levy of excavation, quarrying, and exit taxes by the Zila Councils of Attock and Rawalpindi. The High Court had dismissed the petitions on the ground that the petitioners failed to exhaust the statutory remedy of revision available under the Punjab Local Government Ordinance 1979 before invoking the writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. The petitioners contended that the revision remedy was illusory because the revisional authority was the same official who had previously dismissed their statutory appeal, thus creating a bias. The Supreme Court granted leave to appeal, determining that the contention regarding the adequacy and efficacy of the statutory remedy of revision, specifically where the revisional authority is the same person who decided the appeal, raises a substantial legal question requiring further consideration. The Court thus set the stage to examine whether the exhaustion of such a remedy is mandatory when the remedy itself is alleged to be ineffective or biased.
- Does the failure to exhaust a statutory revision remedy render a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan premature?
- Can a statutory remedy be considered illusory if the revisional authority is the same person who decided the initial appeal?
- Is it mandatory to exhaust all statutory remedies before challenging a tax levy in a writ petition?
- Article 199, Constitution of Islamic Republic of Pakistan
- Punjab Local Government Ordinance 1979
ORDER
1. ' SAIDUZZAMAN SIDDIQUI, J.---The petitioners are seeking leave to appeal against the judgment of a learned Judge in Chambers of Lahore High Court dated 7-7-1994 whereby two writ petitions filed by the petitioners to challenge levy of tax on excavation/quarrying, (Nikas) tax, and exit tax on stones imposed by Zila Council, Attock and Rawalpindi as un-Constitutional, were dismissed on the ground that the petitioners had not exhausted the statutory remedy provided under Punjab Local Government Ordinance 1979 (hereinafter to be referred to as 'the Ordinance' only) before filing the petitions under Article 199 of the Constitution of Islamic Republic of Pakistan.
2. ' The relevant facts are that the petitioners instituted Writ Petition No,1149 of 1993 challenging the levy of excavation/quarrying, (Nikas) tax, and exit tax imposed by Zila Council, Attock and Rawalpindi. This petition was, however, dismissed by the High Court on 31-10-1993 on a statement made by the counsel for the petitioners that the petitioners would first like to exhaust the remedy provided under the statute and thereafter, if necessary, they will file the petition under Article 199 of the Constitution. The petitioners thereafter preferred an appeal to the designated Authority under the statute which was dismissed by order dated 16-2-1994. Without availing further remedy of revision provided under the Ordinance, the petitioners instituted two Writ Petitions Nos. 190 of 1994 and 191 of 1994 challenging the validity of excavation/quarrying (Nikas) tax as well as exit tax levied by Zila Council Attock and Rawalpindi. A preliminary objection was raised to the maintainability of the petitions on the ground that the petitioners had not exhausted all the remedies provided under the statute which was upheld by the learned Judge in Chambers and consequently, the writ petitions were dismissed as premature placing reliance on the case 'Wealth Tax Officer and another v. Shaukat Afzal and 4 others' (1993 SCM R 1810).
3. The learned counsel for the petitioners in support of the above petitions, inter alia, contended that the remedy by way of revision provided under the statute was merely an illusory remedy in the circumstances of the present case as the power of revision has been conferred by the Government on the Commissioner who had earlier dealt with the appeal filed by the petitioners under the Ordinance, and therefore, the same authority was not expected to give a decision contrary to his earlier findings. The contentions raised by the learned counsel for the petitioners require consideration and we, accordingly, grant leave to appeal.