1. ARSHAD NOOR KHAN, J. - By this Constitutional Petition under Article 199 of the Constitution of Islamic I Republic of Pakistan, 1973 the petitioner challenged the legality and validity of Cargo Throughput Charges (C.T.C.) 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 produces 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 and its 12th meeting of Civil Aviation Board held on 7.8.1984 levied Cargo Throughput Charges (C.T.C.) 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 C.T.C. At the rate of 5% were prescribed thus at all material time the C.T.C. For routine clearance was 2% of the freight charges and for urgent clearance it was fixed at 5% of the freight charges. The said C.T.C. Continued in the field by the Civil Aviation Authority through their contractors being cargo throughput collection licences. It is further stated in the petition that the C.T.C. Levied by the respondent No. 2 in the year 1984, which is committed 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 C.T.C. May be collected on the value of the consignment instead of fright. The C.T.C. Is being levied at 2% on the value of consignment i.e. C.I.F.
3. Through the PRAL system which meant 234 times enhancement. The said arbitrary exorbitant levy is expropriatory 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 C.T.C. Or PRAL system in view of Ordinance, 1982.
4. The respondents have been served with notice of the petition and the respondent No. 2 filed para- wise comments stating therein that the petition is hit by the laches as the petitioner is seeking the levy of C.T.C. On 8.10.1984 after such a long and for whole time he was collecting C.T.C. Without any objection as such at this belated stage he cannot challenge the imposition/levy of the C.T.C. 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 C.T.C. And that the value of the consignment in PRAL system will not be charged at 0.65% and C.T.C. 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 wa 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.
5. 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.
6. Mr. Muhammad Farogh Naseem, Advocate for the petitioner vehemently contended that the C.T.C.
7. 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 C.T.C. And the C.T.C. Imposed by the respondent No. 2 is against the authority vested in him.
8. 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 M/s. 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 Lahore 194; the case of Cannon Products Ltd. v. Income Tax Officer Companies Circle, Karachi, reported in PLD 1985 Karachi 572; the case of M. Afzal & Sons v. Federal Government of Pakistan, reported in PLD 1977 Lahore 1327, the case of M/s. Pioneer Traders v. Government of Sindh and others reported in PLD 2006 Karachi 648 and the case of Avantis Ltd. v. Government of Sindh and others, reported in SBLR Sindh 56.
9. Mr. Zahid F. Ebrahim, Advocate for respondents Nos. 2 to 6 vehemently controverted the arguments Y 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. 931/2008 and 960/2008 which are pending adjudication with another suit No. 1095/2001 which also involved the controversy involved in the present petition. He further contended that the introduction of PRAL system will be benefited to the 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 M/s. Prolink Consultant (Pvt.) Ltd. And after taken into confidence alt the stakeholders and that no reasonable grounds exists to grant the prayer made in the petition as such the petition is liable to be dismissed.
10. 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 C.I.F.
11. 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 the powers have been vested in the authority who has to prepare plan for development of infrastructures for the treatment of C.I.F. To indicate the economical and proprietary co-ordinated jurisdiction service and control and regulate Civil Aviation Authority Pakistan. Sub-section (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 C.T.C. 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 sub-section (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 had 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 if was decided to levy C.T.C. And for the said purpose of collection of C.T.C. Certain stakeholders/contractors were given licence to collect the C.T.C. The petitioner was also allowed licence to collect C.T.C. Since from the date of inception of C.T.C. The petitioner started collecting C.T.C. Since August, 1984 and throughout a long period of 24 years till the date of filing the present petition the petitioner did not challenge the legality, validity and property of levy of C.T.C. And was collecting C.T.C. From the customers without any objection as has been raised. It is, therefore, an admitted position that the petitioner never challenged imposition of C.T.C. Or its rates to question levy of C.T.C. After long period of about 24 years.
12. The petitioner has challenged the levy of C.T.C. In the present petition which was filed on 30.6.2008 which show that the petition has been filed challenging the legality arid validity of imposition of imposition of C.T.C. From 7.8.1984 and after about 24 years from the date of introduction of collection of C.T.C. The said action scheme of respondent No. 2 has been challenged and no explanation has been put forward by the petitioner to show that what were those circumstances and reason which compelled him not to challenge the imposition of scheme of C.T.C. 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 submissions advanced by the learned counsel for respondents Nos. 2 to 6 challenging the maintainability of the petition on the point of laches. We are 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 contractor he was acting upon the said scheme of C.T.C. And was collecting C.T.C. In accordance with the spirit of the scheme. We have therefore no hesitation in our mind to hold that the petition suffers from laches.
13. 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 M/s. 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. 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 tho contractors or stakeholders in levy of new PRAL system to minimize misery of the customers in payment of C.T.C. Charges as presently so many complaints have been received by respondent No. 2 from the customers regarding exorbitant recovery of C.T.C. By the petitioner and has produced letter wherein the customers have objected the recovery of excess C.T.C. 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 Honorables Supreme Court while dealing with the service charges levied by virtue of.