1. ' SAJJAD ALI SHAH, J.---The petitioners in the present petition are aggrieved by the charging of parking fee by the Hyderabad Cantonment Board on commercial vehicles. It is the case of the petitioners that respondent No,1 viz., Hyderabad Cantonment Board has been forcibly receiving parking fee/tax from every bus owner on each stop i.e, General Bus Stand, Hali Road Hyderabad, Qasim Chowk, Hyderabad, the National Highway Gharibabad Barrage Colony, Hyderabad, NHH and Pathan Colony Hyderabad through their Contractor in violation of sections 62 and 63 of the Cantonment Act, 1924 (hereinafter referred to as 'the Act'). According to the petitioners, the Contractor receives more than Rs,350 forcibly from each bus parked at Qasim Chowk, National Highway Hyderabad at the instance of Cantonment Board while a receipt of Rs,20 only is issued and in case the bus owners refuse to pay the said amount he is victimized by the Contractor and his armed men. It is further alleged that beside payment of parking fee/tax to Cantonment Board Hyderabad, it is also charged by Municipal Corporation Hyderabad. The petitioners made several representations to the higher authorities including President of Pakistan against charging of said parking fee/tax but to no effect. Having no alternate remedy the petitioners have filed the present petition with the following prayer:- "(a) Exercise of powers by respondent No,1 to impose tax parking fee at (1) Qasim Chowk, Hyderabad, (2) Barrage Colony Bus Stand, (3) Pathan Colony, Hyderabad, and General Bus Stand Hali Road, Hyderabad may be declared illegal and null and void.
(b) To direct respondents Nos.4, 5 and 6 to take action against respondent No,7 according to law about his illegal acts.
(c) Respondents Nos.1 and 7 by themselves, through their agents, attorneys, employees, subordinates directly or indirectly in any manner whatsoever may be restrained from illegal and forcible recovery of parking tax/fee from (1) Qasim Chowk, Hyderabad, (2) Barrage Colony Bus Stand, Hyderabad, (3) Pathan Colony Hyderabad (4) General Bus Stand Hali Road, Hyderabad as the same has been imposed in violation of sections 60, 61, 62 and 63 of the Act, 1924.
(d) That the respondent No,1 is going to call tenders of parking fee/tax for the year 2004-05 for the said places i.e, Qasim Chowk, Barrage Colony Bus Stand, Pathan Colony, General Bus Stand Hali Road, Hyderabad, as such he may be restrained from calling tenders for the said contract.
(e) Any other relief which this Honourable Court may deem fit and proper be awarded to the petitioners.
2. ' During the pendency of this petition, Hyderabad Cantonment Board advertised the right to collect the parking fee for the year 20042005 at the enhanced rate of Rs,100 per bus per trip in daily 'JURRAT' dated 19th, 20th and 27th June, 2004 and thereafter awarded the contract to the new Contractor leading to necessary amendment in the petition by way of substitution of the Contractor as respondents No,7-A to 7-D.
3. ' The petition was mainly contested by Hyderabad Cantonment Board who denied various factual assertions but admitted the charging of fee from the bus owner who parked their buses on the Cantonment Bus Stand for the purpose of collecting passengers but denied the charge of fee from those bus owners who cross National Highway without stopping on the Cantonment Bus Stand. The charging of parking fee was justified by the petitioners in the Cantonment area on the ground that they have established bus stand which maintains the waiting rooms and wash rooms separately for ladies and gents which facilitate the bus owner to park their buses for the purposes of collecting passengers.
4. ' The main contention of Mr. Suleman Habibullah was that since there is no provision in "the Act" empowering respondent No,11 to impose/levy parking fee and the so-called parking fee levied is nothing but a tax imposed by respondent No,1 under the provisions of section 60 of the Act without obtaining previous sanction from the Federal Government, as such the parking fee/tax is liable to be declared void.
5. ' On the other hand Mr. Muhammad Rafique has vehemently denied imposition of any tax by respondent No,1 under the provisions of sections 60 to 63 of the Act and pleaded that the provisions of said sections are inapplicable to the case in hand. He has submitted that the respondent No,1 is charging fee under section 200 of the Act after taking due approval from the competent authority for the services rendered.
6. ' The contentions of Mr. Suleman Habibullah that the charging of parking fee is nothing but tax are without force for the obvious reason that a tax is a compulsory exaction of money by the Public Authority for public purposes enforceable by law and is not payment for services rendered and in the instant case the rendering of services does not seem be to a matter in dispute. On the other hand, the fee is a charge for special services rendered or special benefit or privilege provided by some Government Agency. Consequently, in our view the stand of respondent No,1 is correct to the extent that the charge is not a tax, consequently the provisions of sections 60 to 63 of the Act empowering the Board to impose tax are not applicable in the present case.
7. ' Now this leaves us to examine the second contention of the petitioner that there are no provisions to charge parking fee and the stand of the Cantonment Board that parking fee is being charged under the provisions of section 200 of the Act after taking due approval from the competent authority, section 200 is reproduced hereinbelow for the sake of convenience.
8. "200. Levy of stallages, rents and fee : A Board may---
(a) charge for the occupation or use of any stall, shop, standing, shed or pen in a public market, or public slaughter-house, or for the right to expose goods for sale in a public market, or for weighing or measuring goods sold therein, or for the right to slaughter animals in any public slaughter- house, such stallages, rents and fees as it thinks fit; or
(b) with the sanction of the Competent Authority, farm the stallages, rents and fees leviable as aforesaid or any portion thereof for any period not exceeding one year at a time; or
(c) put up to public auction, or with the sanction of the competent authority dispose of by private sale, the privilege of occupying or using any stall, shop, standing, shed or pen in a public market of public slaughter-house for such terms and on such conditions as it thinks fit.
9. ' A bare perusal of section 200 of "the Act" reveals that this section has comprehensively defined the purposes for which a Board may charge fee and does not leave to the discretion or power of the Board to charge fee for the purposes other than those enumerated in the said section. Mr. Rafique when confronted with this situation was not able to satisfy us that parking fee can be charged under the provisions of section 200 of 'the Act' or the Cantonment Board/respondent No,1 can ,charge fee for the purposes other than those enumerated in the section referred to above. It is a well-settled principle of law by now that a tax toll or fee cannot be imposed and or levied by any governmental agency without appropriate legislative authority and since there are no provisions in 'the Act' empowering the Board to charge parking fee as such the charge is without lawful authority.
10. ' The reasons that there are no provisions in the Act empowering the Cantonment Board to charge parking fee appears to be that Act was promulgated almost 80 years back when there was hardly any need either for the provisions of parking or any charge for such provision. However, with the passage of time and enormous increase in the means of transportation, the provision for parking has become essential and such provision cannot be provided or maintained without proper allowance in the shape of parking fee, this led us to examine the provisions of Cantonments Ordinance 2002 to find out as to whether the new Ordinance has taken care of this aspect by empowering the Cantonment Board to charge such fee. It is interesting to note that Cantonments Ordinance 2002 specifically empowers the Cantonment Board to levy parking fees as is evident from section 243 read with Entry No,9 of the First Schedule which reads as "Fee for parking of vehicle on Site provided by the Cantonment Administration". Incorporation of such entry in the Cantonments Ordinance 2002 clearly reflects that the Legislature was fully conscious of the fact that parking fee cannot be charged under 'the Act'. However, the said Ordinance has not come into force for the reason that subsection (3) of section 1 of the Cantonment Ordinance 2002 provides that the Ordinance or any provision thereof shall come into force on such date as may be notified by the Federal Government. However, no such Notification till date has been issued, as such the Ordinance, though on the Statute Book, is still inoperative and cannot come to the rescue of the respondents.
11. ' The other imported aspect of the case which need to be examined is to see as to whether the Executive Officer of the Cantonment Board can impose a fee as in the present case the Cantonment Executive Officer throughout without the approval of the Board as to charging of or rate of parking fee has advertised the right to charge such parking fee at his own and has also at his discretion fixed and or enhanced the rate of fee and after approving the same placed it before the Board for its confirmation. Mr. Muhammad Rafiq while supporting such charge by the Executive Officer has placed reliance on section 25 of 'the Act' and has argued that the Executive Officer is empowered to charge fee in exercise of special powers conferred on him by virtue of section 25 of the Act. It will be beneficial to produce the contents of section 25 of 'the Act; for the sake of convenience: "25. Special power of the Executive Officer. ---The Executive Officer may, in cases of emergency, direct the execution of any work or the doing of any act which would ordinarily require the sanction of the Board and the immediate execution or doing of which is, in his opinion, necessary for the service or safety of the public, and may direct that the expenses of executing such work or doing such act shall be paid from the cantonment fund: Provide that---
(a) he shall not act under this section without the previous sanction of the President or in his absence, of the Vice-President.
(b) He shall not act under this section in contravention of any order of the Board prohibiting the execution of any particular work or the doing of any particular act: and
(c) He shall report forthwith the action taken under this section and the reasons therefore to the Board."
12. A perusal of above section reveals that the Executive Officer in case of emergency is empowered to incur certain expenses for a work which requires immediate execution involving safety of public and does not confer any power upon the Executive Officer to charge or enhance the fee even if it would have been covered/prescribed under section 200 of the Act' since section 200 of the Act confer exclusive powers upon the Board to charge fee for the purposes prescribed therein and such powers cannot be exercised by any one else including executive officer. Mr. Tariq Ali, the learned Federal Counsel also conceded to this legal position. These are the reasons for the short order dated 8-11-2005 whereby we had declared the charging of parking fee by respondent No,1 as illegal, null and void.