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Constitutional Petition No.91 of 1982, decided on 13th February, 1985.

---Art. 9--District Council Export Tax Rules, 1976, r. 23--Provincial Government exempting fertilizer, insecticides and pesticides meant for use in agriculture from payment of export tax vide a notification in pursuance of power conferred under substituted r.23--Contractor who had taken a contract from District Council for right to collect export tax filing a civil suit and getting order of status quo and insisting upon to collect export tax even on said exempted items--Said items no longer included in schedule of items on which export tax was to be levied and question whether petitioner was liable to pay any amount to contr4ctor in spite of said notification sub judice before civil Court- Petition becoming infructuous--Constitutional petition dismissed in circumstances.

M. Mushtaq Knan for Petitioner.

Gulab M. Rang and M. Abdul Sattar Shaikh, A.A.-G. for Respondents.

Date of hearing: 13th February, 1985.

---The petitioner through this petition has prayed for the following reliefs:-

"(1) restrain the respondent No.2 and respondent No.3, ; s :: servants and agents from demanding and/or collecting from the petitioner, its dealers, trucking contractors and other carriers export tax on the fertilizer nan4actured and marketed by the petitioner under the Trade Mark ENGRO Urea.

(2) grant any other relief or reliefs that this Hon'ble Court may deem fit and proper in the circumstances of the case and

(3) provide costs of the petition."

2. The brief facts leading to the filing of the above petition are that the petitioner is inter alia operating a fertilizer manufacturing factory at Dahrki. The Government of Sind by a notification dated 15-7-1981 substituted rule 23 of District Council Export Tax Rules. 1976, empowering itself to exempt any goods or class of goods from payment of the tax. In pursuance of the above power conferred under, the above substituted rule, the Government of Sind by another notification dated 15th July, 1981 exempted fertilizer, insecticides and pesticides meant for use in agriculture from the payment of export tax " with immediate effect. Respondent No.3 had taken a contract from respondent No.2 for the right to collect export tax for the year expiring on 15-10-1980. Respondent No.3 filed two constitutional petitions, namely Civil Petitions Nos. 107 of 1981 and 108 of 1981 for impugning the above notification at the Circuit Bench at Sukkur, which were dismissed as withdrawn by an order, dated 4-11-1981.

The District Council by its letter, dated 14-10-1981 had decided to extend respondent No.3's above contract for a period of one year provisionally subject to the decision of the High Court in the above writ petitions or clarification, opinion and approval of the Government. It also seems that respondent No.3 after getting the above two petitions dismissed as withdrawn filed Suit No.164 of 1981 in the Court of Senior Civil Judge, Sukkur and obtained a status quo order on or about on 4-11-1981. On the strength of the above status quo order respondent No.3 insisted upon collecting export tax even on the above exempted items. The petitioner, therefore, has filed the present petition and has prayed for the reliefs quoted hereinabove.

3. Mr. Gulab- M. Rang learned counsel appearing for respondent

No.3 submits that in the new schedule for the year 1984-85 respondent No.2 the District Council, Sukkur has not included the aforesaid exempted items for the purpose of levy of export tax and that respondent No.3 has already filed a suit for the recovery of its dues against the petitioner in the Court of Senior Civil Judge, Sukkur. He further submits that even the contract of respondent No. 3 has already expired and the contract has been awarded by respondent No. 2 to a new contractor. It has, therefore, been submitted by him that the above petition has become infructuous as the question of petitioner's liability will be adjudicated upon in the above suit.

4. Since the above exempted items are no longer included in the schedule of items on which export tax is to be levied and as the question whether the petitioner is liable to pay any amount to respondent

No.3 in spite of the above notification exempting the above items is sub judice before the Senior Civil Judge, we are not inclined to go into the merits of the above petition. The petition is, therefore, dismissed as having become infructuous. However, we direct that the provisional amounts deposited by the petitioner in this Court in pursuance of the orders, dated 13-5-1982 and 3-10-1983 passed in the above petition shall be refunded to them.

The petition stands disposed of in the above terms with no order as to costs.

H. A. K. Constitutional petition dismissed.

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