PLJ 2009
Present:
Muhammad Athar Saeed and Arshad Noor Khan, JJ.
Messrs
IBRAHIM FIBRES LTD. through Secretary/Director
Finance--Petitioner
versus
FEDERATION
OF PAKISTAN through Secretary/Revenue Division and 3 others--Respondents
C.P. No.
D-548 of 2008, decided on 22.11.2008.
Income Tax
Appellate Tribunal Rules, 2005--
----R.
3--Civil Procedure Code, (V of 1908), S.20(c)--Constitution of Pakistan (1973),
Art. 199--Constitutional petition--Appeal before Income Tax Appellate Tribunal,
pendency of--Action and inaction of members of the tribunal challenged in
constitutional petition before Karachi High Court--Question
of--Maintainability--Sealing of impugned order by tribunal in compliance with
interim order of Karachi High Court--Effect--Such compliance out of respect
would not mean that Tribunal had impliedly given consent to jurisdiction of
Karachi High Court--Impugned action and inaction of members of tribunal had
taken place within territorial limits of Lahore High Court, thus, cause of
action had fully arisen at Lahore--Effect of final order to be passed by
Tribunal would be either to demand tax from appellant or extinguish his
liability by Taxation Officer at Lahore--No person or authority based in
Karachi or any part of Sindh Province could issue any demand of tax or take
coercive action against appellant--Income Tax Tribunal as federal institution
was functioning through benches in different areas assigned to them by
Chairman--Lahore Bench of Tribunal was constituted to hear appeals against
orders of Tax Department performing functions in Lahore--Writ of mandamus
issued by Karachi High Court could not run beyond its territorial
jurisdiction--Income Tax Tribunal, Lahore Bench and its Members, Taxation
Officers based at Lahore were not falling within territorial jurisdiction of
Karachi High Court--Petition was dismissed. [Pp.
176 & 183] A & B
1985 SCMR
758; PLD 2002 Karachi 420; PLD 1997 Lah. 643; 2000 SCMR 1703; 1993 SCMR 1171;
1991 SCMR 2114; 1997 SCMR 1874; PLD 1968 SC 387; PLD 1997 SC 334; 1979 SCMR
555; PLD 1986 Kar. 525; 2004 CLC 565; PLD 1980 Kar. 113; Zafar Ali Shah's case
PLD 2000 SC 869; PLD 2006 Kar. 479 and 1996 SCMR 83 ref.
Mr. Khawaja
Shamsul Islam and Jawed Zakaria, Advocate for Petitioner.
Mr. Aqeel
Ahmed Abbasi, for Respondents Nos. 1 to 5.
Mr. Shahid
Jamil Khan, Advocate for Respondents Nos. 9, 10 and 12 to 14.
Mr. Ikram
Ahmed Ansari, Advocate for Intervenor.
G.N.
Qureshi, DAG for State.
Date of
hearing: 22.11.2008
Order
Muhammad
Athar Saeed, J.--This constitutional petition was filed in this Court on
27-3-2008 against the alleged action and inaction of the Income Tax Appellate
Tribunal, Lahore Bench and both the Judicial and Accountant Members of the
Lahore Bench, who had allegedly after hearing the appeal filed by the
petitioner against the order of the CIT Appeals Lahore setting aside the order
of the Income Tax Officer based at Lahore on the point of credit under Section
107AA had passed dissenting orders and the Accountant Member is alleged to have
changed his verbal order to please Respondents Nos.10 and 11 was are also based
at Lahore.
2. Vide various orders passed by this Court on
different dates initially the orders of the Members of Income Tax Appellate
Tribunal Lahore were sealed and they were restrained from de-sealing the order
but later on this order was recalled. However, the respondent department was
restrained from initiating any action in terms of the said order. Later on,
contempt application was also moved against some of the respondents on which
notices were issued to the alleged contemnors and the interim order passed
earlier was extended.
3. Earlier, vide the order of this Court, dated
3-4-2008, the learned counsel for the petitioner was put to notice that the
legal objection made by the Respondents Nos. 9 and 10 that since the matter
pertains to Province of Punjab this Court does not have the territorial
jurisdiction to adjudicate it, would be decided first. This case was fixed
before this Bench for the first time on 21-10-2008 when once again the learned
counsel for the petitioner was put to notice that this Court before
adjudicating on merits of the case, will first take up and decide whether the
petition is maintainable insofar as it has been filed in this Court against
action of the Tribunal at Lahore and today both the applicants were prepared to
argue on this point.
4. We have heard Mr. Khawaja Shamsul Islam the
learned counsel for the petitioner and Mr. Shahid Jamil Khan learned counsel
for the Respondents Nos.9 and 10.
5. The learned counsel for the petitioner
started his arguments by reading out the orders of this Court, dated 28th
March, 2008 and 3rd April, 2008 in which this Court had given certain
directions to the Respondent No. 8 i.e. the Tribunal and other respondents for
sealing of the impugned order and then order for desealing the same and
restraining the respondent Department from taking any action on the basis of
the disputed impugned order. On the basis of these two orders of this Court the
learned counsel drew our attention to the order of the Income Tax Appellate
Tribunal in which the directions given in these orders of this Court had been
complied with. The learned counsel, therefore, argued that the respondents had
by complying with the orders of this Court accepted the jurisdiction of this
Court and, therefore, they were precluded from challenging the jurisdiction of
this Court to adjudicate on this constitutional petition. He further submitted
that no prejudice is caused to the respondent if this constitutional petition
is heard by this Court or by the Lahore High Court. The learned counsel
submitted that the secretarial, corporate commercial, legal and tax assessment
matters are being regularly attended by the company secretariat tax law
division situated at Karachi. All returns, petitions, revisions and memos are
prepared at Karachi office and their tax advisors and legal advisors are also
based at Karachi. He further stated that the appeal before the Tribunal was
prepared at Karachi and filed before the Income Tax appellate Tribunal Lahore
and the notices of hearing of the appeal and the impugned orders were also
received at Karachi office. According to the learned counsel, the Income Tax
appellate Tribunal is a single entity and its Benches function at Karachi,
Lahore, Islamabad, Peshawar and Quetta and, therefore, since it is a Federal
Institution, its orders can be challenged in any High Court in Pakistan and at
least in the case of the present petitioner both the Sindh High Court and the
Lahore High Court have concurrent jurisdiction and it is his prerogative to opt
to file the constitutional petition before any of the two High Courts. The
learned counsel then drew our attention to Section 20(c) of the C.P.C. which
provides that subject to limitations aforesaid every suit shall be instituted
in a Court within the local limits of whose jurisdiction the cause of action
wholly or in part arise. According to the learned counsel the petitioner's tax
matters are dealt with at the Karachi office and notice of hearing was also
received at the Karachi office, therefore, the cause of action has partly
arisen in Karachi and this Court has full jurisdiction to decide this
constitutional petition. The learned counsel then referred to the judgment of
the Honourable Supreme Court in the case of Messrs Al-Iblagh Limited, Lahore v.
The Copyright Board, Karachi and others (1985 SCMR 758) in which a full bench
of the Honourable Supreme Court had held that a petition/appeal against a
judgment of the Copyright Board, the office of whose Registrar is situated at
Karachi, can be filed either in the Sindh High Court or Lahore High Court as
both the Courts have concurrent jurisdiction in the matter and both the Courts
can entertain a writ petition against the impugned order. He submitted that
this case is completely identical to the case of the petitioner and since this
judgment is that of a full bench comprising of five Members it is binding on
this Court and, therefore, this Court may declare that it has jurisdiction to
hear the above constitutional petition. The learned counsel then relied on the
judgment of this Court reported in the case of Itehad Cargo Services v. Rafaqat
Ali (PLD 2002 Karachi 420) in which this Court had held that where two Courts
might have jurisdiction in respect of the same case it is prerogative of the
plaintiff to choose the place of suing. The learned counsel then read out Rule
3 of Income Tax Appellate Tribunal Rules, 2005 which reads as under:--
(2) Sitting
of Bench.-A Bench shall hear and dispose of such appeals and applications made
under the Ordinance as are assigned by the Chairperson or any member authorized
by him in this behalf.
6. He argued that this rule is completely para
materia with the relevant rule of copyright which was adjudicated upon in the
Al-Iblagh case (supra) and, therefore, the facts of his case are completely
identical to the case of Al-Iblagh case. The learned counsel also placed
reliance on the following cases:--
(1) Gulzar Ahmad Khan v. The Chief Election
Commissioner of Pakistan Islamabad and 7 others (PLD 1997 Lahore 643).
(2) Trading Corporation of Pakistan (Private)
Ltd. v. Pakistan Agro Forestry Corporation (Private) Limited and another (2000
SCMR 1703).
(3) Secretary, Ministry of Religious Affairs and
Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171).
(4) Ch. Akbar Ali v. Secretary, Ministry of
Defence, Rawalpindi and another (1991 SCMR 2114).
(5) Flying Kraft Paper Mills (Pvt.) Ltd.
Charsadda v. Central Board of Revenue, Islamabad and 2 others (1997 SCMR 1874).
7. On the basis of his arguments and the
judgment relied on by him the learned counsel submitted that this Court has
jurisdiction to hear this constitutional petition and prayed that he may be
provided an opportunity to the argue the case on merits.
8. The learned counsel for the respondents
strongly opposed the arguments advanced by the learned counsel for the
petitioner and submitted that by complying with the order and directions of
this Court, the respondents have not conceded to the jurisdiction of this Court
and are not precluded from challenging it. He further argued that even if it is
considered that the respondents have accepted the jurisdiction of this Court then
also it is a settled law that the parties cannot give consent to any action
which is against the law.
9. The learned counsel submitted that the filing
of writ petitions are governed by the provisions of Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973. He read out the provisions
of Article 199 to point out that this Court is competent to pass orders in
cases covered under paras (i) and (ii) of sub-clause (a) of clause (1) of this
Article and under paras (i) and (ii) of sub-clause (b) and sub-clause (c).
Reading out all these provisions he specifically mentioned that under all these
provisions the Court can exercise its jurisdiction when any person performs,
within territorial jurisdiction of the Court, or an act is done or proceedings
taken within the territorial jurisdiction of the Court, or a person is in
custody within the territorial jurisdiction of the Court, a person holds office
within the territorial jurisdiction of the Court or when Government
functionaries exercise any powers or perform any functions within the
territorial jurisdiction of that Court. He pointed out that so far as the
present petition is concerned, the petitioner has prayed to this Court for
issuance of writ of mandamus falling under sub-clause (ii) of sub-clause (a) of
clause (1) of Article 199 and this Court before exercising its jurisdiction has
to be satisfied that the act done or proceedings taken against which the writ
of mandamus is requested to be issued, has been done or taken within the
territorial jurisdiction of this Court. He pointed out that the petitioner
filed his returns of income before Taxation Officer performing his functions in
the province of Punjab which falls under the jurisdiction of the Lahore High
Court. The appeal has been heard by the Lahore Bench of the Income Tax
Appellate Tribunal at Lahore by the Judicial and Technical Members who have
been posted to perform their functions at Lahore, the act of passing the order
or omission for passing of the relevant order have all been performed at Lahore
and, therefore, this Court has no jurisdiction to entertain this petition for
issuance of writ of mandamus as none of the purported actions or proceedings
have been taken within the jurisdiction of this Court.
10. The learned counsel then strongly opposed the
arguments of the learned counsel for the petitioner that since the Income Tax
Appellate Tribunal is a Federal Body and its benches function in all the four
provinces, therefore, despite the fact that the act or omission may have been
taken by the functionaries of the Tribunal functioning in a particular province
but the entitlement of filing a petition against such act or omission is within
the prerogative of the petitioner to file in any Court he so desires. The
learned counsel submitted that Al-Iblagh case quoted supra on which the
reliance has been placed by the learned counsel for the petitioner is
distinguishable from the facts of this particular case, as in that case it was
observed by the Honourable Supreme Court that since Copyright Board has been
setup by Pakistan Central Government for whole of Pakistan and performs
functions in such matters relating to the affairs of Federation in all the
provinces, therefore, any order passed by such Board or proceedings taken by it
in relation to any person in any of the four provinces of the country, would
give High Court of Province, in whose territory order would affect such a
person, jurisdiction to hear the case. They also observed that appeal under
Section 76 can also be preferred to High Court within whose jurisdiction the
appellant actually and voluntarily reside or carries on business or works for
gains. He pointed out that the facts in that case were that initially the
hearing of the appeal in view of the request of the parties as well as for the
convenience of the three of the Members of the Board who were from Lahore and
Rawalpindi admittedly, had taken place at Lahore. However, the final order
whereby the appeal was dismissed was announced at Karachi, but since the
appellant admittedly resided at Lahore it was held by the Honourable Supreme
Court that both the Sindh High Court and the Punjab High Court had concurrent
jurisdiction to hear the appeal under the Copyright Act. He also preferred to
the judgment of the Honourable Supreme Court in the case of Asghar Hussain v.
Election Commissioner of Pakistan and others (PLD 1968 SC 387) which was relied
on by the Honourable Bench in Al-Iblagh case (supra) and pointed out that in
that case the subject matter of the certificated appeal was that bye-election
of East Pakistan Provincial Assembly from constituency No. PE-126, Comilla VI,
was held under the President's Order and the High Court of East Pakistan had
given a decision that it had no jurisdiction to issue writ or direction to the
Election Commissioner of Pakistan as it was stationed at Islamabad. The
Honourable Supreme Court held that this judgment was unsustainable in law and
the persons, who were affected, by the order were residing within the
jurisdiction of High Court of East Pakistan (as it then was) and the elections
were held in the territory of East Pakistan (as it then was) and the Election
Commissioner was person or authority which exercised its powers in the Province
of East Pakistan in connection with the affairs of the Center and, therefore,
the High Court of East Pakistan had proper jurisdiction. The learned counsel
pointed out that the fact in these cases was that the parties in those appeals
were the persons who were affected ordinarily resided in the territorial
jurisdiction of the High Courts in whose jurisdiction they had filed these
petitions and cause of action had also accrued to them in the territorial
jurisdiction of those High Courts. The learned counsel then relied on the
judgment of the Honourable Supreme Court in the case of Sandalbar Enterprises
(Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334) in which
according to him the case of Al-Iblagh quoted supra was distinguished.
According to the learned counsel in this case writ petition was filed in Rawalpindi
Bench at Lahore High Court against an assessment for the levy of regulatory
duty imposed at Karachi which was rejected by the Lahore High Court and the
petition was returned to the petitioner to present the same before the proper
Court on the ground that the learned Lahore High Court had no territorial
jurisdiction despite the fact that vires of Notification was also challenged
and reliance was placed on Al-Iblagh case. However, grant of leave was refused
by the Honourable Supreme Court after distinguishing the case of Al-Iblagh in
the following manner.
"(7) The petitioners' prayer was for a direction to
the Customs Authorities at Karachi not to levy the regulatory duty. The above
relief could have been granted by the High Court of Sindh within whose
jurisdiction the person performing the affairs of the Federation is discharging
his functions."
11. The learned counsel also argued that the
cause of action will arise in territories within whose jurisdiction impugned
action or proceedings which have been challenged and in which the authorities
have given the verdict and only that High Court will have the jurisdiction to
issue writ of mandamus. The learned counsel in support of his above contentions
relied on the following case laws.
(1) Sabir Din v. Government of Pakistan through
Secretary, Ministry of Defence and others (1979 SCMR 555).
(2) Abdul Ghaffar Lakhani v. Federal Government
of Pakistan and 2 others (PLD 1986 Karachi 525).
(3) Mst. Shahida Maqsood v. President of Pakistan
through Secretary, Law Justice and Human Rights (2004 CLC 565).
(4) Subhan Beg and 18 others v. Pakistan State
Oil Co. Ltd. Rawalpindi (PLD 1980 Kar. 113).
12. The learned counsel pointed out that if it is
held that in case of orders of the Federal Tribunal even those Courts have
jurisdiction within whose territorial jurisdiction the cause of action does not
arise either partially or fully nor the authorities whose impugned action has
been challenged are performing the functions of the Tribunals in that
territorial jurisdiction, then a pandora box will open and appeals and
petitions will be filed in various High Courts just on the basis of personal
preference of likes and dislikes. He, therefore, prayed that this Court may
refuse to exercise its jurisdiction and dismiss the petition in limine leaving
the petitioner to seek any other remedy if he so desires.
13. Exercising his right to reply the learned
counsel for the petitioner referred to a Full Bench judgment of this Court in
the case of Ghaffar Lakhani case relied on by the learned counsel for the
respondent and quoted supra. The learned counsel submitted that after the
judgment of the Supreme Court in the case of Zafar Ali Shah's case reported in
PLD 2000 SC 869, this judgment of the Full Bench of this Court has been
rendered per incurium. In support of his contention he relied on the following
few lines from the judgment of the Honourable Supreme Court:--
"It is
a fundamental principle of jurisprudence that Court must always endeavor to
expand their jurisdiction so that the rights of the people are guarded against
arbitrary violations by the executive. The orders of the Chief Executive are
subject to the jurisdiction of the constitutional Courts of the land."
14. The learned counsel also argued that for the
purpose of administration of justice Court can mould the relief and allow the
same though it is not prayed for as the Courts are not merely salves of
technicalities, but are Courts of justice and, therefore, the relief can be
moulded in a way which serves the purposes of justice. For this purpose, he
relied on a judgment of this Court in the case of Messrs Facto Belarus Tractors
Limited Karachi and another v. Federation of Pakistan (PLD 2006 Karachi 479).
To substantiate that the partial cause of action arose at Karachi and therefore
this Court had jurisdiction to entertain the writ petition, the learned counsel
relied on a judgment of the Honourable Supreme Court in the case of the
Collector, Customs and Central Excise, Peshawar v. Messrs Rais Khan Limited
(1996 SCMR 83).
15. We have examined the case in the light of the
arguments of the learned counsel and have also perused the records of the case
and the law on the subject including provisions of Article 199 of the
Constitution of Islamic Republic of Pakistan and the judgments relied on by the
learned counsel.
16. At the very outset, we may observe that we
are not impressed by the arguments of the learned counsel that by complying
with the directions of this Court issued through earlier orders, the respondents
have impliedly consented that this Court has jurisdiction to issue writ of
mandamous in this case. They had already objected against filing of this
constitutional petition before this Court and merely complied with the
directions and orders of this Court simply out of respect they hold for this
Court and the compliance of the orders do not mean that they had given implied
consent to the jurisdiction of this Court. From a perusal of the actions and
omission of the members of the Income Tax Appellate Tribunal Lahore bench we
have seen that such acts and omissions took place within the territorial
jurisdiction of the Lahore High Court and therefore the cause of action fully
arose at Lahore. It is also our considered opinion that the effect of the order
of the Tribunal either in favour or against the petitioner would either be that
the tax would be demanded or the tax liability will be extinguished by the
taxation officer at Lahore and no person or authority based in Karachi or any
other part of Sindh which falls within the territorial jurisdiction of this
Court, will be entitled to issue any demand or take any coercive action against
the petitioner for recovery of demand or in any other matter connected with the
subject-matter of appeal. We are also of the opinion that although the Income
Tax Appellate Tribunal is a federal institution having Benches all over the
country and functions under a single chairperson who, as pointed out by the
learned counsel for the petitioner, performs its functions in all the provinces
through benches formed by the learned Chairperson to hold sitting at the
headquarter or such other place as the chairperson may consider convenient.
However, the functions of these Benches will be restricted to the territories
in which they have been assigned by the chairperson to hear and decide the
appeals and the Lahore Bench according to the jurisdiction has been constituted
to hear appeals against the orders of the Taxation Authorities performing their
functions in Lahore or such other part of Punjab as may have been declared by
the chairperson and, therefore, it is clear that from the time the return was
field before the Income Tax Officer all the actions initiated and proceedings
taken have been taken by the authorities including the taxation officer,
commissioner of Income Tax (Appeals) and the Members of the Income Tax Tribunal
performing their functions in respect of cases falling within the territorial
jurisdiction of the Lahore High Court. The petitioner counsel has been
emphasizing that the partial cause of action had arisen at Karachi, but except
arguing that his corporate tax offices are situated at Karachi and that the
impugned orders were received at Karachi, the has not been able to point out
even a single instance of the cause of action arising at Karachi or any effect
of the impugned action or omission by the Members of the Tribunal which may
have arisen at Karachi and which could be implemented in any part of Sindh by
any authority.
17. The learned counsel for the petitioner has
relied heavily on Al-Iblagh case and has argued that the facts of this petition
are similar to the facts of that case as both the Income Tax Appellate Tribunal
and the Copyright Board are Federal Institutions performing their functions all
over Pakistan. It is, therefore, his submission that the orders passed by the
Tribunal sitting anywhere in Pakistan can be challenged in any High Court in
Pakistan.
18. We have examined the judgment of the
Honourable Supreme Court in Al-Iblagh case quoted supra and have seen that the
Honourable Supreme Court decided the issue that Lahore High Court had
jurisdiction to entertain the writ petition filed by the petitioner whose
appeal against the order of the Copyright Board sitting in its appellate
capacity was to be filed before the learned Lahore High Court. The Honourable
Supreme Court decided this issue in the following manner:--
"The
learned Judge in the High Court was of the opinion that as the offices of the
Registrar and the Copyright Board were located in Karachi and the record to be
examined (or "certified" if the technical term was to be used) was
also in Karachi, the rule laid down by this Court in The Deputy Managing
Director, National Bank of Pakistan and others v. Ataul Haq PLD 1965 SC 201
would be attracted and, therefore, the Sindh High Court in whose jurisdiction
the records of the respondents were available would alone have jurisdiction to
entertain the writ petition."
19. In this case the Honourable Supreme Court
also relied on its observations in the case of Asghar Hussain quoted supra
which reads as under:--
"The
plaint meaning of the words" "a person performing in the Province
functions in connection with the affairs of the Centre" excludes
territorial limitations, such as, that the person or authority to whom the High
Court is empowered to issue writs must be amenable to its jurisdiction either
by residence or location within those territories."
It explained
that:--
"The
Central Ministries as well as many Departments of the Central Government are
located in Islamabad or at Rawalpindi. Nevertheless they perform functions in
both the provinces in connection with the affairs of the Centre, such as,
Defence of Pakistan, External Affairs, Insurance, Copyright, Patent, Design--
20. We are of the opinion that the facts of the
present petition are not identical with the facts of the case in Al-Iblagh case
quoted supra because whereas Income Tax Appellate Tribunal performs its
functions through various benches which have been granted jurisdiction to hear
and decide the case in various territories the copyright Board is a single
entity which meets all over Pakistan to decide the cases in which cause of
action may have arisen in a particular territory and appeals are ordinarily
filed in the High Court in which the cause of action arose and when such
decisions are made in its appellate capacity then appeals against it are
ordinarily filed in the High Court having territorial jurisdiction over the
territories in which the applicant ordinarily resides and carries on business
and therefore, the Honourable Supreme Court has held that if the Lahore High
Court had the jurisdiction to decide the appeal then it is not possible to
sustain its judgment that it does not have jurisdiction to entertain
constitutional petition in case of such petitioner/litigant. In the petition
before us the appeal/reference application against the Income Tax Appellate
Tribunal Lahore Bench could only have been filed in the Lahore High Court and
not in this Court and therefore, the judgment of the Honourable Supreme Court
in the case of Al-Iblagh case does not apply to this case.
21. The learned counsel also relied on the
judgment of the Honourable Supreme Court in the case of Flying Kraft Papers
Mills quoted supra wherein the Honourable Supreme Court had distinguished the
case of Sandalbar Enterprises quoted supra and held that since not only the
orders of Collector of Central and Excise Peshawar was in question in the
petition but relief was also claimed against the Central Board of Revenue which
functions at Islamabad, the Peshawar High Court and Rawalpindi Bench of Lahore
had concurrent jurisdiction in the matter. The Honourable Supreme Court in this
case gave the following reasons for its above judgments:--
"(5)----Mr.
Pirzada in support of his contention referred to Section 21, C.P.C. which
requires that objection as to the place of suing must be raised at the earliest
opportunity and unless such objection has been raised before the Court of first
instance, the revisional or Appellate Court will not entertain such objection
except in cases where it resulted in the failure of justice. Mr. Pirzada
further contended that in the present case not only the order of Collector of
Customs and Central Excise was in question but relief is also claimed against
the Central Board of Revenue, which functions at Islamabad and, therefore, the
High Court at Peshawar and Rawalpindi Bench of Lahore High Court had concurrent
jurisdiction in the matter. The contention of Mr. Pirzada, the learned counsel
for the appellants is not without force."
"(6)----In
the writ petition filed after post-remand proceedings, not only the order of
Collector was challenged but relief was also claimed against C.B.R. and as such
it could not be argued that in the circumstances, the Rawalpindi bench of
Lahore High Court had no territorial jurisdiction in the matter. We have
examined the facts of Sandalbar Enterprises (Pvt.) Ltd. v. C.B.R., (supra),
cited by the learned Deputy Attorney-General and are of the view that the facts
of that case were quite distinguishable from the facts of the present
case."
22. We are of the considered opinion that even
this case does not help the petitioner because the reasons prevailing with the
Honourable Supreme Court for holding that the Peshawar High Court and the
Rawalpindi Bench of the Lahore High Court had concurrent jurisdiction were two
fold (i) that not only the action of the Collector Customs at Peshawar was
challenged but also the various notifications issued by the C.B.R. which had
its office in Islamabad were challenged and (ii) that the challenge to the
jurisdiction of the Rawalpindi Bench was not made in the initial proceedings
but on the proceedings against the remand order and the Honourable Supreme
Court was of the view that if the jurisdiction is not challenged at the
earliest moment it cannot be challenged subsequently. In the present case it
has not been shown to us what partial cause of action arose at Karachi and we
have already noted that the jurisdiction of this Court was challenged at the
start of the proceedings and, therefore, this judgment will not apply to the
case before us.
23. The learned counsel also relied on the
judgment of the Honourable Supreme Court in the case of Trading Corporation of
Pakistan quoted supra. In this case also the Honourable Supreme Court has held
that the relief was claimed not only against the cause of action which had
arisen at Karachi against the fully owned Government corporation but relief was
also claimed against the Government of Pakistan at Islamabad and therefore both
the Courts at Karachi as well as Rawalpindi had jurisdiction in the matter and
remedy could be resorted in either of them. In this case the Honourable Supreme
Court held as under :--
"It is
pertinent to note that petitioner in this petition has on its own mentioned
that it is a limited company duly incorporated under the Companies Ordinance
and operates from Karachi and undertakes import and export of various items to
maintain the stability of the prices in the market on the instructions of
Government of Pakistan. It is further confirmed from the above facts that the
tenders were called on 5-5-1996 on the decision of Economic Coordination
Committee of the Cabinet at Islamabad. Not only this but after calling the
revised tenders the revised offers of eight participants in number were opened
on 8-5-1996 in the petitioner's Board room in presence of the tenderers and the
details of offer so received were sent to the kitchen items review committee in
the Planning and Development Division, Ministry of Commerce, Islamabad where
after review offer of the Respondent No. 1 was found the lowest and was
accepted. As stated in the facts above the offer of the respondent was turned
down as Government of India through Indian Sugar and General Industries Export
Corporation Limited entered into contact of export of sugar with Secretary to
the Government of Pakistan, Ministry of Commerce, Islamabad. Rejection of the
representation further confirms that Respondent No. 2 has the dominion over the
matters of petitioner. Moreover, the decision of the writ petition of High
Court wherein the point of jurisdiction was raised attended finality as leave
to appeal was refused to the petitioner by this Court being time-barred. The
learned Single Judge of the High Court in chambers has elaborately dealt with
this aspect of the matter in the judgment in writ petition and has held that
the Respondent No. 1 having cause of action against Federal Government could
bring the Constitutional Petition either at Karachi or at Rawalpindi Bench of
Lahore High Court. The learned Single Judge rejected the objection of
maintainability of the writ petition on the ground that affairs of Trading
Corporation of Pakistan are being controlled by the Ministry of Commerce at
Islamabad. Before the High Court the relief was not only claimed against the
petitioner but was also claimed against the Respondent No. 2, the Ministry of
Commerce, Government of Pakistan at Islamabad as such the petition was
competently filed."
24. From a perusal of the above paragraph it is
seen that again the facts of this case have no nexus with the facts of the case
in the present petition.
25. We have carefully perused the judgment of the
Honourable Supreme Court in the case of Sandalbar Enterprises (Pvt.) Ltd. v.
Central Board of Revenue and others (PLD 1997 SC 334). In this case, the
Honourable Supreme Court after distinguishing the facts of Al-Iblagh case
quoted supra observed as under:--
"(8) We may observe that it has become a common
practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi
or Multan etc. to challenge the order of assessment passed at Karachi by adding
a ground for impugning the notification under which a particular levy is
imposed. This practice is to be depreciated. The Court is to see, what is the
dominant object of filing of the writ petition. In the present case, the
dominant object was not to pay the regulatory duty assessed by a Customs
Official at Karachi. We are, therefore, not inclined to grant leave. Leave is refused."
26. At this juncture it will be relevant to
reproduce the Article 199 of the Constitution of Islamic Republic of Pakistan,
1973 for the sake of convenience which reads thus:--
Article 199.
Jurisdiction of High Court:--
(i) Subject to the Constitution, a High Court
may, if it is satisfied that no other adequate remedy is provided by law.
(a) on the application of any aggrieved party,
make an order--
(i) direct a person performing, within the
territorial jurisdiction of the Court, functions in connection with the affairs
of the Federation, a Province or a local authority, to refrain from doing
anything he is not permitted by law to do, or to do anything he is required by
law to do; or
(ii) declaring that any act done or proceeding
taken within the territorial jurisdiction of the Court by a person performing
functions in connection with the affairs of the Federation, a Province or a
local authority has been done or taken without lawful authority and is of no
legal effect; or
(b) on the application of any person, make an
order--
(i) directing that a person in custody within the
territorial jurisdiction of the Court be brought before it so that the Court
may satisfy itself that he is not being held in custody without lawful
authority or in an unlawful manner; or
(ii) requiring a person within the territorial
jurisdiction of the Court holding or purporting to hold a public office to show
under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make
an order giving such directions to any person or authority, including any
Government exercising any power or performing any function in, or in relation
to, any territory within the jurisdiction of that Court as may be appropriate
for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of
Part-II.
27. The interpretation of this Article has been
beautifully summed up in the judgment of the Peshawar High Court in the Subhan
Beg's case relied on by the learned counsel for the respondent which reads as
under:--
"(13) A careful perusal of Article 199 of the
Constitution would show that there is a two-fold limitation on the jurisdiction
of the High Court under Article 199 of the Constitution in its territorial
aspect. The first limitation seems to be that the power is to be exercised by
the High Court throughout the territories in relation to which the High Court
exercises jurisdiction. This means that the writ issued by the High Court
cannot run beyond the territories subject to its jurisdiction. The second
limitation appears to be that the person or authority, to whom the writ is
issued, must be within the territories subject to the jurisdiction of the High
Court which means that such person or authority must be amenable to the jurisdiction
of the High Court either by residence or location within those
territories."
28. We fully agree with the reasoning of the
learned Peshawar High Court and are of the opinion that both these limitations
are present in this constitutional petition because the writ of mandamus, which
could have been issued by us cannot run beyond the territories which are
subject to the jurisdiction of this Court and the person or authority i.e. the
Income Tax Tribunal Lahore Bench does not function within the territories
subject to the jurisdiction of this Court and even the petitioner and the
person and the Members of the Income Tax Tribunal Lahore or the Taxation
Officer based at Lahore do not function within the territorial jurisdiction of
this Court and are not amenable to the jurisdiction of this Court. We are,
therefore, of the considered opinion that this Court does not have the
jurisdiction to issue a writ of mandamus in this constitutional petition.
29. The above are the reasons in support of the
short order passed by us in Court after hearing the learned counsel on
13-11-2008 by which we had held that this Court do not have the jurisdiction to
entertain this constitutional petition and directed the office to return the
petition to the petitioner to file before the appropriate Court having
jurisdiction in this matter.
(R.A.) Petition
refused.