' CH. MUHAMMAD TARIQ, J.---Through the instant petition, the petitioners have impugned the orders dated 28-4-2008, 23-2-2009, 14-3-2009 and 24-3-2009 passed by respondents-Civil Aviation Authority (CAA) whereby the CAA has imposed embarkation charges on Pakistan Army Troops proceeding on UN peace keeping missions treating troops as passengers.
2. The cause of action as given in the writ petition is that the United Nations Peace Keeping missions in Sudan (UNMIS) was established pursuant to the UN Security Council Resolution No,1590 dated 24-3-2005. According, a memorandum of understanding between Government of Pakistan and United Nations was executed for contributing Pakistan Army troops, equipment and services to assist UN to carry out its mandate. On 29-6-2007, formal sanction of the President of Pakistan was conveyed to Chief of Army Staff, GHQ, Rawalpindi in this regard. The GHQ, Military Operations Directorate issued a certificate on 13-3-2007 which provides that all the officers/officials proceeding on government duty to UN Peace Keeping Mission are exempted from airport taxes. On the request of United Nations, GHQ Pakistan Army/Ministry of Defence/Government of Pakistan through agreement dated 10-3-2008 asked the petitioners for chartering aircraft and providing all necessary services and facilities for transportation of Pakistan Army troops (Defence. Personnel) proceeding on United Nations Peace Keeping Mission.
3. Accordingly, since 2005, the petitioners have been transporting Pakistan Army troops proceeding on UN peace keeping missions on chartered aircrafts from Pakistan to various countries and were never demanded any embarkation charges except for the. Chartered aircrafts landing, parking, hanger, air navigation facility, aircraft power supply system and refueling charges. However, on 28- 4-2008, respondent No,2 demanded embarkation fee in respect of Pakistan Army troops proceeding on UN peace keeping mission on a UN chartered aircraft treating Pakistan Army Personnel as passengers which demand was reiterated by the respondents-CAA through letters dated 23-2-2009, 14-3-2009, 24-3-2009. Hence this writ petition.
4. Learned counsel for the petitioners inter alia contends that respondents-CAA cannot impose embarkation charges upon Pakistan Army Troops proceedings on UN Peace Keeping Missions as they are not only exempted from airport taxes but also there is no such law/regulation in this behalf and unless some effective/law/regulation is published in the official Gazette, CAA cannot enforce the decision of embarkation charges. Further contends that levying embarkation charges is against the provisions of section 6(3) and section 16 of Pakistan Civil. Aviation Authority Ordinance, 1982.
5. Learned counsel for the petitioners asserts that if the troops would have been sent by GHQ Pakistan Army, Ministry of Defence or Government of Pakistan, the troops were exempt from levying embarkation fee and as the petitioners have performed the functions of GHQ Pakistan Army, therefore, the troops are entitled to the same exemption and the CAA has no right to claim embarkation charges for the troops being transported by the petitioners for UN peace keeping missions. Learned counsel further argues that troops do not fall within the definition of passengers, therefore, respondents-CAA can neither levy nor charge embarkation fee from the troops, therefore, the writ petition in hand be accepted and the impugned orders dated 28-4-2008, 23-2- 2009, 14-3-2009 and 24-3-2009 passed by the respondents-CAA be declared null and void.
6. On the contrary, learned counsel for the respondents-CAA has vehemently opposed this writ petition on the grounds of maintainability as well as facts of the case. Learned counsel avers that the petitioners have failed to make out a case of any violation of law/statutory rules. As per UN Charter, the operator is responsible to clear landing, parking and allied charges including passengers' taxes etc. On the spot. This has also been highlighted by GHQ, General Staff Branch, Military Operations Directorate vide letter dated 20-4-2000. In view of letter dated 20-4-2000, the exemption/waiver of said charges on any ground is not justified and is considered wilful loss to national exchequer. However, in case, the troops are holding Un Passport, they are exempted from the payment of passenger services charges as per clause 7 (7.3) C of AIP Pakistan.
7. Learned counsel for the respondents-CAA has further contended that the troops fall within the definition of passengers and CAA has every right under the law to collect/levy embarkation charges from the petitioners. Learned counsel avers that the writ petition in hand having no force is liable to be dismissed.
8. Arguments advanced by learned counsel for the parties have been heard and the record available on file has also been perused.
9. The terms and conditions of contract No,04/2008/Log-4, which is an agreement for airlifting of relief rotation of Pakistan Army Contingent (with Umra) from Pakistan to Liberia and back, are important for deciding this writ petition. The agreement was executed on 10-3-2008 between Army Welfare Trust and Logistic Directorate, Logistics Staff Branch, GHQ Pakistan which provides that troops will be transported. Article 2 of the agreement deals with the charter price, costs and terms of payment. Clause (3) of Article 2 of the agreement provides that the costs shall include all types of government airport taxes/national and international expenses of operating repairing and maintaining, and fueling of the aircraft during the period of charter, remuneration and expenses of operation/personnel, landing fees, baggage, barges, ground services/handling charges, etc.
10. Admittedly, the petitioners' organization is a commercial organization which has been earning profits through business. In the instant case too, the petitioners have entered into a business agreement, therefore, the petitioners could not be allowed to breach the terms and conditions of the agreement.
11. The objection of learned counsel for the petitioners that the troops without tickets do not fall within the definition of passengers is not convincing, as according to Concise Oxford Dictionary, the definition of passenger is "a traveller at public or a private conveyance other than the driver, pilot or crew". It is ex facie clear from the definition that except driver, pilot or crew, all other persons travelling in a plane fall within the definition of passenger and to declare someone as passenger.
Holding of ticket is not essential.
12. The next contention of learned counsel for the petitioners pertains to the interpretation of section 6(3) of Pakistan Civil Aviation Authority Ordinance, 1982 which is reproduced as under: "(3) Nothing in this section shall entitle the Authority to exercise any power in respect of such works, airports, aerodromes, airfields and things connected therewith as are owned by the Federal Government and established for the exclusive use of. Defence Services."
13. From bare reading of the above provision, it is evident that this provision of law also does not give any benefit to the petitioners' side because it deals only with the airports, aerodromes and airfields which are exclusively owned by the Federal Government and established for exclusive use of defence services. All those airports, aerodromes and F airfields, which are used for commercial purposes for carrying passengers or goods from one place to another are not covered under the said provisions of law: On the other hand, section 16(3)(ii) specifically Provides that. Civil Aviation Authority can levy embarkation charges on passengers who travel by air.
14. The next contention of learned counsel for the petitioners that all rules, orders, regulations and circulars unless published in official Gazette under section 20-A of General Clauses Act could not be enforced is also not helpful to the petitions in the light of agreement executed between the parties.
15. For what has been stated above, respondents-Civil Aviation Authority has every right to levy and charge embarkation fee from the petitioners on account of transportation of troops. The writ petition has no force which is accordingly dismissed.