' FAZAL-E-MIRAN CHAUHAN, J.---This order shall dispose of Writ Petition No,5939 of 2008 (Israr Ahmad Khan v. Secretary Local Government, etc.) and Writ Petition No,4572 of 2008 (City District Government Lahore v. Government of the Punjab), as common question of law and facts are involved in these petitions.
2. The petitioner, who is owner of Khan Brothers Flying Coach and Khan Brothers Transport Service, Head Office Abdullah Pur Stand Faisalabad, sub-office Bus Stand Badami Bagh, Lahore has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The facts of the case are that, levy of tax/fee being collected from all buses at the rate of Rs,500 A.0 seating capacity up to 36 or above 36; Rs,300 A.C. Ccasters seating capacity less than 36 and more than 16 and Rs,250 A.C. Wagons seating capacity up to 16 Besides this, A.C. Vehicles from 22 bays tax at the rate of cost of one passenger ticket per-seat and Adda fee of bus stand is being collected on all out going roads. The Secretary Local Government and Rural Development Department, vide letter dated 5-1-2007, issued direction in the name of all DCOs and TMOs advising them to collect/charge Adda/parking fee only within the premises of General Bus Stand and shall not charge this fee on National Highway or outside the General Bus Stand. Despite this direction, issued by the Government of the Punjab, inclusive Lahore in majority cities of the Punjab and tax/fee is collected on the highways. Again a letter was issued by the Secretary, Local Government dated 6- 11-2007, in the name of all District Nazims as well as DCOs in the Punjab repeating the same direction with further direction to take action against those, who are involved in overcharging or recovery of illegal tax. Despite the above mentioned two letters, no action was taken. The petitioner aggrieved of the illegal act of the local Government and the DCOs preferred an appeal against the City District Government, Lahore before the Secretary, Local Government Punjab and the Secretary vide order dated 12-11-2007 observed as under:--- "5. Keeping in view the above judgment, many cases have been decided by Secretary, Local Government. In an appeal titled Mohammad Azam v. DCO, City District Government, Lahore, this forum has already held that any bus or wagon which is not entering the notified General Bus Stand would not be subject to levy of adda fee. In fact, illegal recovery of adda fee outside the premises of General Bus Stand is taking place because of failure of the City District Government, Lahore, many other Local Government/ Transport Authorities in various Districts of the Province to enfore traffic rules. These Government agencies have found easy way to collect the illegal tax/fee from the transporters through erecting barriers on the road-side which is not permissible under the law/ rules. Local Governments/Regional Transport Authorities must enforce the traffic rules and ensure that all the buses and Wagons use the General Bus Stands and notified adda premise. Actually, Local Governments should establish new bus stands on different roads or exit/entry points of cities and get these notified and then levy the Adda Fee on the transporters for using the said service/facility. Particularly in one such case, collection of adda Fee at Sagian Pull, Lahore and many other such check points on roadside and exit/entry points of the City of Lahore is declared illegal and the City District Government, Lahore is directed to stop such recovery forthwith and take stern action against the officer/official as well as the public functionaries who are directly or indirectly involved in this illegal practice. Secondly City District Government, Lahore is directed to furnish proper notification for its vetting by the Government if it desires to levy adda fee under PLGO. With the enforcement of PLGO, 2001, levy and collection of adda fee under an old law is not desirable. Such notification must be published/ notified in the official gazette also. It is further directed the City District Government, Lahore must notify the rate of the fee in press and display at conspicuous places in the premises of General Bus Stand for information of tax prayers. Once the notifications vetted by the Government and published in official gazette, all other District Governments in the Province should also follow these instructions and stop recovery of illegal adda fee, if it is being collected outside approved bus stands"
' On receiving the order passed by the Secretary Local Government, the City District Nazim, vide letter dated 19-12-2007 made representation to the Secretary, Local Government with the prayer to withdraw the direction issued and the method for collection of tax/levy for the buses, which are only plying from the recognized Adda. The said representation made by the District Nazim was replied on 11-2- 2008.
"The order of Secretary, Local Government and Community Development, Government of the Punjab dated 15-8-2007, is a valid speaking order passed after correct/proper appreciation of law and facts. The SLG while relying on the judgment of Honourable Lahore High Court dated 27-6- 2006, passed in W.P. No,15526/2005 titled "Raja Tahir ur Rahman v. DCO, Gujranwala", rightly held that its failure on the part of Local Governments and Transport Authorities to enforce traffic rules.
These authorities have found an easy way to collect the illegal tax/fee from the transporters putting barriers/checkpoints on the road side.
' The order of SLG, dated 12-11-2007 was again passed on numerous complaints lodged by public at large against illegal charging of Add/parking fee. It was rightly advised and directed by the SLG that Local Government/ Regional Transport Authorities must enforce the traffic rules and ensure that all the buses and wagons use the notified Bus Stands or alternatively establish new Bus Stands on different roads or exit/ entry points of cities by getting the same notified, and only thereafter levy the Adda Fee on the transporters for using the said service/facility after getting the fee approved by their respective Councils.
' It is reiterated that the virtue of section 3 of PLGO, 2001, this law has an overriding effect on all the other laws for the time being in force. PLGO, 2001 is not an ordinary provincial legislation as it was enforced in the Provinces Through Federal legislation/ direction, in fulfilment of the constitutional obligations of the Provinces, laid down under Article 140-A of the Constitution of the Pakistan, 1973.
Further law has been protected under the Sixth Schedule of the Constitution, 1973, therefore cannot be altered, repealed or amended (expressly or impliedly) without the previous sanction of President of Pakistan. Only in this context, not only the Provincial departments are being re-aligned but also other law and Rules are also being reviewed, for any inconsistencies with the PLGO, 2001.
' The judgment of the Honourable Lahore High Court, dated 27-6-2006 passed in Writ Petition No,15526/ 2005 titled :Raja Tahir ur Rehman v. DCO, Gujranwala" Order of SLG dated 15-8-2007 and order of SLG dated 12-11-2007 have not been assailed before any appropriate forum, hence, attained finality. Therefore, the City District Government is advised to comply with the order of the SLG dated 12-11-2007, in letter and spirit".
' The District Nazim was appraised of the judgment passed by this Court in various writ petitions.
Referring to Writ Petition No,15526 of 2005, titled "Raja Tahir ur Rehman v. DCO, Gujranwala", which order was not assailed by all the respondents in that writ petition. Again the orders dated 15-8- 2007 and 12-11-2007 passed by the Secretary, Local Government were not challenged, vide which, the City Government and the District Nazim were directed to comply with the direction, given by the Secretary Local Government. The petitioner's main grievance is that, despite the direction given by the Secretary Local Government, who is the highest forum on the side of the Local Government, as well as, the DCO, while acting and performing his duties under the Local Government Ordinance is bound to follow the direction given by the Secretary, Local Government, but despite this, respondents are bent upon to flout the orders of this Court passed in the earlier writ petition and the latest direction given by the Secretary Local Government.
5. Report and parawise comments were submitted by respondents Nos.3 and 5 Preliminary arguments on the writ petition were heard today.
4. The petitioner, himself argued the case, referring to different judgments passed by this Court in Writ Petition No,15522 of 1999, decided on 6-5-2002 Writ Petition No,15526 of 2005, decided on 27-6- 2006, Wit Petition No,6598 of 1989, decided on 18-10-1992, Writ Petition No,4775 of 1993, decided on 9-7-1995, I.C.A. No, 94 of 1995 , decided on 8-10-1995 and Writ Petition No,23075 of 2000, decided on 13-7-2001. In all these cases, this Court after hearing the parties on merits, observed that, parking fee can only be charged from the vehicle originating or terminating their journey at the Bus Stand.
Under Rules 253(5) of the Motor Vehicles Rules, 1969, the contractor has no authority to charge the Parking Fee from every vehicle entering the municipal limits of Lahore under section 116 of the Punjab Local Government Ordinance, 2001, a Local Council may levy taxes, cesses, fee, rates, rents, tolls, charges, surcharges and levies specified in the Second Schedule. The said Schedule clearly stated that, the City District Government can charge fee for specific services rendered by it and it has been observed by this Court while deciding Writ Petition No,15526 of 2005 that, if no specific service is provided by TMA or City District Government and the services provided are not being utilized by the owners of vehicle by not entering the General Bus Stand, the City District Government and the TMA cannot charge fee from the vehicles, who were parked outside the Bus Stand.
5. Conversely, learned Additional Advocate-General and the learned Legal Advisor for respondents Nos, 3 and 5 opposed this writ petition and argued that, notification dated 28-10-2008, issued in continuation of previous notification dated 23-9-2000. The DCO in exercise of powers under sections 6 and 8 of the West Pakistan Bus Stands and Traffic Control (Lahore) Ordinance, 1963 notified the City Bus Terminal Sikandaria Colony, Band Road, Lahore as an extension of General Bus Stand for the purpose of above mentioned Ordinance. It is specified in the notification that, it has been issued in order to check the evasion of Adda Fee by the Transporters having their route permit originating from the terminating at General Bus Stand, Lahore, the following Checking/ Exit Points will also be treated as an extension of General Bus Stand, Lahore. The details of Checking/Exit Points are as under:--
(i) Check Point Match Factory Gujranwala Road, Lahore.
(ii) Check Point Sheikhupura and Saggian Bridge Road, Lahore.
(iii) Check Point Bund Road, Gulshan Ravi, Lahore.
(iv) Check Point opposite to Ordnance Depot Niaz Bag at Multan Road, Lahore,
(v) Check Point Ferozepur Road, opposite to Chungi Amer Sidhu, Lahore.
' By issuing this notification dated 31-1-2008, which has been published in the Punjab Gazette, by following the procedure and law, after getting approval from the Government of the Punjab. Further argued that, this has been done in order to check those transporters whose route permit basically allows them to originate and terminate their buses from the recognized. Bus Stand and they in order to avoid the payment of fee did not enter the Bus Stand and originated and terminated their vehicles from Old Ravi Bridge, Shandara Road, General Hospital, etc. In order to avoid payment of tax, which they are bound to pay under the law.
6. When confronted with this notification dated 31-10-2008, the petitioner submits that, it is a device to frustrate the order passed by the Secretary, Local Government, implementation of which has been sought through this writ petition. Further argued that, the DCO was not competent to extend the limits of General Bus Stand to the Checking Exit Points on the five Checking Points mentioned in the above said notification. Submits that, it has been observed by this Court in Writ Petition No, 15522 of 1999, decided on 6-5-2002 Writ Petition No,15526 of 2005, decided on 27-6-2006, Writ Petition No,6598 of 1989, decided on 18-10-1992, Writ Petition No, 4775 of 1993, decided on 9-7-1995, I.C.A. No,94 of 1995, decided on 8-10-1995 and Writ Petition No,23075 of 2000, decided on 13-7-2001 that, Adda Fee or whatever it may be called is a fee, which can be collected under the Motor Vehicles Ordinance from the owners, who used, enjoys the service, which facility provided by the Regional Transport Authority at the approve Bus Stands.
7. I have heard the petitioner, as well as, learned Additional Advocate-General and the learned Legal Advisor for respondents Nos. 3 and 5.
8. Grievance of the petitioner is that, the respondents shall comply with the direction given by the Secretary, Local Government on the representation filed by the transporters and the suo motu action taken by him on coming to know about the atrocity and illegal acts of respondents Nos. 3 and 5. In the cases, which have been decided by this Court, detail of which is mentioned in para. 3 ibid, decided on 13-7-2001. It was held that, parking fee can only be charged from the vehicles originating or terminating their journey from a duly established bus stand and the contractor collecting Adda Fee on behalf of the Local government or other concerned authorities under Rule 253 (5) of Motor Vehicles Rules, 1969 was directed not to charge from those buses, who are not using the stand or facilities or services. It was declared that, if the City District Government or TMA is not providing any service to the transporters or they are not utilizing the said service, TMA cannot charge fee from such vehicles. The stance taken and the reasons for demanding tax from those who are not using the facility of Bus Stand is not logical. The contention was that, all the vehicles do not come to the General Bus Stand and they prefer to drop and pick the passengers on the roads of scattered areas of Lahore to avoid of Adda fee notified by the City District Government, Lahore and to bring them notionary within the purview of the Bus Stand the terminating point had been extended vide notification dated 28-10-2008 to the Check Points of all different five exit routes going to Multan, Gujranwala, Sheikhupura, Ferozewala, Faisalabad and Jaranwala. This dispute, as it appears, is going on since long between the transporters and the Local Government, City Government, Corporation etc. All the previous litigations, starting from 1993 up till 2005. It is the unanimous decision of this Court that, Adda Fee can only be collected from those vehicles, who originated or terminated their plight from the General Bus Stand and enjoys all the services provided. The order passed in all these writ petitions by this Court were never challenged by the respondents-Transport Authority and had attained finality. The Secretary Regional Transport Authority has the power to levy tax under section 137 of the Punjab Local Government Ordinance, which reads as under:-- ' A local Council subject to the provisions of any other law may, and if directed by the Government, shall levy all or any of the taxes enumerated in the II Schedule".
' The learned Single Judge in Chamber while deciding Writ Petition No, 4775 of 1993, vide its order dated 9-7-1995, observed that:-- "Power to levy tax has subjected to two riders that:--
(i) it shall be subjected to provisions of any other laws and
(ii) if the same is directed by Government.
9. The General Bus Stands are run and controlled by the authority to grant permission to establish bus stand and power vests with the Regional Transport Authority, who has the exclusive jurisdiction to grant such permission. The said authority is not only vested with the powers to grant permission but also vested with the power to fix fee payable to other vehicles, which used facility on Bus Stand.
This power is exclusive and falls within the domain of the Regional Transport Authority under Rule 256, sub-clause (d) of the Motor Vehicles Rules, 1969.
10. Since the power of the Local Government to levy tax has been subjected to the previsions of any law, therefore, the power to fix fee as provided in the rule, noted supra, shall have the overriding effect, hence, levy of adda fee and parking fee without the blessing of the Regional D Transport Authority suffers from legal infirmity and cannot be sustained. The imposition of collection of tax outside the Bus Stand is also without lawful authority, for the reasons that, adda fee and parking fee are to be charged from the vehicles parked in the Adda and which utilized the services of Adda and not from the vehicle plying on the road.
11. As it has been held in the earlier writ petition that, it is the exclusive domain of Regional Transport Authority to levy any fee and that having not been levied, DCO, Nazim has no authority under the law to impose/levy Adda fee and parking fee from those vehicles, who are not enjoying/ utilizing the services of Bus Stand.
12. For the foregoing reasons, this writ petition is allowed, as prayed for.