IBRAHIM FIBRES LTD. through Secretary/Director Finance VS FEDERATION OF PAKISTAN through Secretary/Revenue Division, 2009 PTD-KARACHI-HIGH-COURT-SINDH 248 (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 at Lahore, pendency of---Action and inaction of Members of the Tribunal challenged by appellant in constitutional petition before Karachi High Court---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 section 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---Constitutional petition was dismissed in circumstances.

Messrs Al-Iblagh Ltd. Lahore v. The Copyright' Board, Karachi and others 1985 SCMR 758; Itehad Cargo Services, v. Rafaqat Ali PLD 2002 Karachi 420; Gulzar Ahmad Khan v. The Chief Election Commissioner of Pakistan Islamabad and 7 others PLD 1997 Lah. 643; Trading Corporation of Pakistan (Private) Ltd. v. Pakistan Agro Forestry Corporation (Private) Limited and another 2000 SCMR 1703; Secretary, Ministry 'of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114; Flying Kraft Paper Mills (Pvt.) Ltd. Charsadda v. Central Board of Revenue, Islamabad and 2 others 1997 SCMR 1874; Asghar Hussain v. Election Commissioner of Pakistan and others PLD 1968 SC 387; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Sabir Din v. Government of Pakistan through Secretary, Ministry of Defence and others 1979 SCMR 555; Abdul Ghaffar Lakhani v. Federal Government of Pakistan and 2 others PLD 1986 Kar. 525; Mst. Shahida Maqsood v. President of Pakistan through Secretary, Law Justice and Human Rights 2004 CLC 565; Subhan Beg and 18 others v. Pakistan State Oil Co. Ltd. Rawalpindi PLD 1980 Kar. 113; Zafar Ali Shah's case PLD 2000 SC 869; Messrs Facto Belarus Tractors Ltd. Karachi and another v. Federation of Pakistan PLD 2006 Kar. 479 and Collector, Customs and Central Excise, Peshawar v. Messrs Rias Khan Ltd. 1996 SCMR 83 ref.

Khawaja Shamsul Islam and Jawed Zakaria for Petitioner.

Aqeel Ahmed Abbasi for Respondents Nos.1 to 5.

Shahid Jamil Khan for Respondents Nos.9, 10 and 12 to 14.

Ikram Ahmed Ansari for Intervernor.

G.N. Qureshi, DAG for the State.

ORDER

MUHAMMAD ATHAR SAEED, J.---This constitutional petition was filed in this Court or 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 who 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 in so far 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 argue the case on merits.

8. The learned counsel for the respondent 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 hold 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 referred to the judgment of the Honourable Supreme Court in the case of Asghar Hussain v. Election Commissioner of Pakistan and .ethers (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 manadamus. 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 inn 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 filed 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, he 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 PI.D 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 plain 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 pot 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 4 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 from 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, r 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 contract 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 attained 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 at 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 H.

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.

S.A.K./I-32/KPetition refused.