1. ' ARSHAD NOOR KHAN, J.--- By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner challenged the legality and validity of Cargo Throughput Charges (CTC) imposed by respondent No,2 in the year 1984 to be illegal, inoperative mala fide, void ab initio without jurisdiction and is of no legal effect.
2. ' The facts necessary to decide the present petition in brief are that the petitioner is dealing in the business of import of pharmaceutical products and is richly contributing towards the economy and exchequer of the country. The respondent No,1 is the Secretary Ministry of Defence and is Ex- officio Chairman of the Civil Aviation Authority Board having administrative control of Civil Aviation Authority. The respondent No,2 is the authority constituted and established under the Pakistan Civil Aviation Authority Ordinance, 1982 (hereinafter shall be referred to as the Ordinance, 1982) which regulates the Airports and Air Traffic within the territory of Pakistan. It is further stated in the petition that respondent No,2 in its 12th meeting of Civil Aviation Board held on 7-8-1984 levied Cargo Throughput Charges (CTC) on International deplaned cargo at the rate of 2% of the freight charges. Subsequently vide 97th meeting of Civil Aviation Authority held on 15-6-2002 for immediate clearance the CTC at the rate of 5% were prescribed thus, at all material time the CTC for routine clearance was 2% of the freight charges and for urgent clearance it was fixed at 5% of the freight charges. The said CTC continued in the filed by the Civil Aviation Authority through their contractors being cargo throughput collection licencees. It is further stated in the petition that the CTC levied by the respondent No,2 in the year 1984, which is continued till date, is patently illegal and without jurisdiction and further the Civil Aviation Authority proposed to introduce Pakistan Revenue Automation Ltd. (PRAL) system so that the CTC may be collected on the value of the consignment instead of freight. The CTC is being levied at 2% on the value of consignment i,e, CIF through the PRAL system which meant 234 time enhancement. The said arbitrary exorbitant levy is expropritatory and confiscatory in nature. It is further stated in the petition that respondent No,2 without inviting any public objections/ advertisement or issuing notice to the stakeholders/contractors decided to introduce PRAL system from 1-7-2008 by awarding contract to the respondent No,2 which is illegal and without jurisdiction and respondent No,2 is not empowered to impose CTC or PRAL system in view of Ordinance, 1982.
3. ' The respondents have been served with notice of the petition and the respondent No,2 filed parawise comments stating therein that the petition is hit by the aches as the petitioner is seeking the levy of CTC on 8-10-1984 after such a long and for whole time he was collecting CTC without any objection as such at this belated stage he cannot challenge the imposition/levy of the CTC. It is further stated in the comments that there was several complaints against the petitioner regarding collection of exorbitant charges from the customer and introduction of PRAL system will be less than the amount of CTC and that the value of the consignment in PRAL system will be charged at 0.65% and CTC will be charged at 0.33% on cost, insurance and freight and that before introduction of the scheme of PRAL system from 7-8-1984 the contractors and stakeholders were taken into confidence and that the comprehensive report was also received from Prolink Consulting (Pvt.) Ltd. Who after taken into consideration all the allied circumstances submitted their report and after taken contractors and stakeholders in confidence the Authority decided to implement PRAL system since 1-7-2008, hence the petitioner has no cause of action to file the present petition.
4. ' We have heard Mr. Muhammad Farogh Naseem, Advocate for the petitioner Mr. Umer Hayat Sandhu, D.A.-G. For respondent No,1 and Mr. Zahid F. Ebrahim, Advocate for respondents Nos.2 to 6.
5. ' Mr. Muhammad Farogh Naseem, Advocate for the petitioner vehemently contended that the CTC imposed by respondent No,2 on 7-8-1984 was highly exorbitant and was imposed without calling any objections from the public and respondent No,2 have no power or authority to impose such CTC and the CTC imposed by the respondent No,2 is against the authority vested in him. According to him the PRAL system, which is being introduced by the respondent No,2, will damage the business of the petitioner and by introduction of PRAL system the duty will be imposed on the basis of freight and not on the basis of consignment, and if the respondents are allowed to impose and enhance the duty it would come 0.65% of the value of the consignment instead of cost insurance freight in this way the business of the petitioner will be ruined. In support of his contentions he has relied upon the case of Collector of Customs v. Shaikh Cotton Mills reported in 1999 SCMR 1402, the case of Messrs H.A. Rahim & Sons (Pvt.) Ltd. v. Government of Sindh and another reported in 2003 CLC 649, the case of Ayaz Textile Mills Ltd. v. Federation of Pakistan reported in PLD 1993 Lah. 194, the case of Cannon Products Ltd. v. Income Tax Officer Companies Circle, Karachi reported in PLD 1985 Kar. 572, the case of M. Afzal & Sons v. Federal Government of Pakistan reported in PLD 1977 Lah.
6. 1327, the case of Messrs Pioneer Traders v. Government of Sindh and others reported in PLD 2006 Kar. 648, and the case of Sanofi Avents Pakistan Ltd. v. Province of Sindh and others reported in PLD 2009 Kar.
7. 69.
8. ' Mr. Zahid F. Ebrahim, Advocate for respondents Nos.2 to 6 vehemently controverted the arguments advanced on behalf of the petitioner and has contended that the petition is hit under principles of laches and that the two contractors have also filed Civil Suits Nos.931 of 2008 and 960 of 2008 which are pending adjudication with another Suit No,1095 of 2001 which also involved the controversy involved in the present petition. He further contended that the introduction of PRAL system will be benefited to the stakeholders and the customers and no stakeholder will be prejudiced. He further contended that the authority has all the powers to frame new scheme which is beneficial to the department and public in view of section 5 of the Ordinance, 1984. He further contended that the licence of the petitioner has expired therefore, he is no more licensee of the respondent. He has submitted that PRAL system has been implemented in view of the report of Messrs Prolink Consultant (Pvt.) Ltd. And after taken into confidence all the stakeholders and that no reasonable grounds exist to grant the prayer made in the petition as such the petition is liable to be dismissed.
9. ' Mr. Umer Hayat Sandhu, D.A.-G. For respondent No,1 also contended that no prejudice will be caused to any stakeholder or contractor or customer because the introduction of new system will in any way not enhance the CIF.
10. ' We have considered the arguments advanced on behalf of the parties and have gone through the material available before us. Admittedly the affairs of respondent No,2 are being governed under the provisions of Ordinance, 1982 and by virtue of section 5 of the powers have been vested in the authority who has to prepare plan for development of infrastructures for the treatment of CIF to indicate the economical and proprietary coordinated jurisdiction service and control and regulate Civil Aviation Authority Pakistan. Subsection (6) of section 6 empowers the authority to undertake execution of any scheme relating to Civil Aviation Authority activities as framed or sponsored by any local body or agency or exercise technical supervision and administrative and financial control over the execution thereof any terms and conditions as may be agreed to between the authority and the local body or agency. The respondent No,2 has, therefore, been empowered to prepare and introduce any such scheme relating to the Civil Aviation Authority and admittedly the levy of CTC and PRAL system falls under the powers vested in the authority. Section 16 also empowers the authority regarding generation of funds for meeting the charges in connection with the functions of the authority including the payment of. Salaries and remuneration to the employees of the authority and by virtue of subsection (3) of section 16 the authority had been invested with the powers to levy and collect all such rates as may be prescribed by the authority by regulations from time to time the fees and charges in respect of the commercial exploitation of the authorities property including land and aircraft. Thus, there is no cavil to the proposition that the authority has all the powers and authority vested in him by virtue of Ordinance, 1982 to frame scheme for betterment of the authority and also to generate the funds by imposing and collecting the fees and shares in respect of the commercial exploitation of the authorities property etc. ' In the present case admittedly after promulgation of Ordinance, 1982 the meeting of the Board of respondent No;.2 was held on 7-8-1982 wherein it was decided to levy CTC and for the said purpose of collection of CTC certain stakeholders/contractors were given licence to collect the CTC. The petitioner was also allowed licence to collect CTC since from the date of inception of CTC.
11. The petitioner started collecting CTC since August, 1984 and throughout a long pariod of 24 years till the date of filing the present petition the petitioner did not challenge the legality, validity and propriety of levy of CTC and was collecting CTC from the customers without any objection as has been raised. It is, therefore, an admitted position that the petitioner never challenged imposition of CTC or its rates to question levy of CTC after long period of about 24 years.
12. ' The petitioner has challenged the levy of CTC in the present petition which was filed on 30-6-2008 which shows that the petition has been filed challenging the legality and validity of imposition of CTC from 7-8-1984 and after about 24 years from the date of introduction of collection of CTC the said action/scheme respondent No,2 has been challenged and no explanation has been put forward by the petitioner to show that what were those circumstances and reasons which compelled him not to challenge the imposition of scheme of CTC introduced by the respondents on 7-8-1984. The petition is completely silent about any explanation of the petitioner regarding his remaining silent for such an inordinate lapse of the time and the learned counsel for the petitioner also did not controvert the submission advanced by the learned counsel for respondents Nos.2 to 6 challenging the maintainability of the petition on the point of laches. We are also of the opinion that the petitioner is found chronic guilty of laches because he was in the knowledge of such scheme since from the date of its imposition because being one of the contractors he was acting upon the said scheme of CTC and was collecting CTC in accordance with the spirit of the scheme.
13. We have, therefore, no hesitation in our mind to hold that the petition suffers from laches.
14. ' The petitioner has also attacked the introduction of new PRAL system which is being promulgated by the respondent No,2 in view of the report of Messrs Prolink Consultant (Pvt.) Ltd. The assertion of the respondent No,2 is that before introduction of new PRAL system all the stakeholders and contractors were taken into confidence thereafter it was decided to implement it from 1-7-2008.
15. The petitioner controverted the said assertion of the respondent No,2 but has not brought on record any material or affidavit of any other contractor or stakeholder to controvert the assertions of the respondent No,2. In the absence of any independent material or evidence it could not be said that the respondent No,2 did not take into confidence the contractors or stakeholders in levy of new PRAL system to minimize misery of the customers in payment of CTC charges as presently so many complaints have been received by respondent No,2 from the customers regarding exorbitant recovery of CTC by petitioner and has produced letters wherein the customers have objected the recovery of excess CTC by the petitioner and said averments of the respondent No,2 against the complainant received from the customers has not been specifically controverted by the petitioner. None of the authorities cited by the learned counsel for the petitioner speak about the proposition involved in the present petition. In the case of Collector of Customs, (supra), the Honourable Supreme Court while dealing with the service charges levied by virtue of section 18(d) of the Customs Act through Tax Adjustment Ordinance was pleased to observe that service charges be levied in terms of pre-shipment inspection of the goods intended to be exported from apart and to be imported into Pakistan, was a fee, but not meant for the benefit of the payers but was meant for the benefit of the two companies appointed to carry out the pre-shipment inspection of the goods. The observation made by the Honourable Supreme Court in this case is entirely different from the point involved in the present case by which the petitioner has challenged the legality and validity of introduction of PRAL system.
16. ' In the case of Messrs H.A. Rahim and Sons (Pvt.) (supra) the learned. Single Judge while dealing with the provisions of Sindh Development and Maintenance of Infrastructures Rules,1 994 and filing civil suit by the plaintiff was pleased to observe that section 9, C.P.C. Clearly states that the Civil Court had jurisdiction to try all the suits of civil nature unless expressly or impliedly barred by the existing law and the Constitution, which is not controversy involved in the present case.
17. ' In the case of Ayaz Textile Mills Ltd. (supra), the learned Single Judge of the Lahore High Court while dealing with the levy of import licence fee was pleased to observe that the Government has power to impose the fee and that the powers must be exercised fairly and reasonably and the Government cannot fix exorbitant rates of licence arbitrarily. In our humble opinion the observation in this case is not applicable to the circumstances of the present case.
18. ' In the case of Cannon Products Ltd. (supra) the learned Division Bench while considering the proposition of self-assessm ent scheme was pleased to observe that under the self-assessment scheme framed under the Ordinance XXXI of 1979 the revised return can be filed by an assessee in terms of section 57 at any time before the assessment was made even for the purpose 'of scheme so long as the assessee concerned qualifies in terms of the scheme but the ratio decidendi in the case of Cannon Products Ltd. Are entirely foreign to the circumstances of the present case and in our humble opinion is inapplicable.
19. ' In the case of M. Afzal & Sons (supra) the learned Single Judge of the Lahore High Court while considering the provisions of sections 19 and 30 of the Customs Act was pleased to observe that issuance of notification allowing exemption and taking all steps to import goods creates vested rights to import such goods from payment of duty and subsequent notification recalling exemption did not take away right derived under the previous notification which observation, in our humble opinion is not applicable :n the peculiar circumstances of the present case.
20. ' In the case of Messrs Pioneer Traders (supra) the learned Division Bench of this Court while considering the provisions of Sindh Propitiatory (Enforcement) of Hadd Rules, 1979 was pleased to observe that the Provincial Government had vested powers to impose the assessment fee who after examining the relevant provisions of law was pleased to observe that the assessment fee is to be levied on the sales of the petitioner and therefore, is not in the nature of fees which is in the nature of tax and there is no provision in the order authoring the Provincial Government to levy any sales tax which finding of the learned Division Bench also in our humble opinion is not attracted to the circumstances of the present case.
21. ' The case of Sanofi Avents Pakistan Ltd. (supra) is also not applicable for the reasons that the provisions of Sindh Finance Act, 1994 were considered wherein the imposition of fees regarding infrastructure of Sindh Development and Maintenance Rules, 1994 were challenged which were answered in negative, as such. The case of Avantis Ltd. Is also not helpful to the petitioner.
22. ' After examining the whole material available before us, we are of firm opinion that the petitioner has challenged the imposition of CTC after about 24 years though throughout the said period he was recovering CTC in accordance with the scheme of CTC and has not put forward any reasonable or plausible explanation regarding the act of respondent No,2 in imposing CTC and said act of the petitioner rendered him guilty of the lathes and that PRAL system which had to introduce from 1-7-1982 could not be declared or adjudged to be illegal and ultra vires in view of the Ordinance, 1982. The petition has, therefore, no merit and the same is hereby dismissed summarily along with listed applications.