' MUNIB AKHTAR, J.---This petition arises out of the Cantonments Act, 1924 ("the Act"). The petitioners are engaged in the advertising business which, in the present context, means that they place hoardings and signboards at various locations in the city, and then rent them out to various companies and persons who wish to place their messages and advertisements on them. Since the different areas of Karachi come within the jurisdiction of different controlling and/or regulatory bodies, the hoardings and signboards are placed after the petitioners obtain a 'no objection certificate' from the concerned authority and make payment of any applicable taxes, charges, fees and rental amounts. The present petition is concerned with hoardings and signboards within the area of the respondent No, 1, the Karachi Cantonment Board ("the Board"), which, as its name suggests, is a body set up and exercising powers under the Act.
2. Learned counsel appearing for the petitioners submitted that they had from time to time obtained permission from the Board, upon payment of the usual charges, to erect hoardings and signboards within its jurisdiction. In particular, the Board charged, and the petitioners paid, advertisement charges in respect of the concerned hoarding or signboard. Learned counsel explained that if the hoarding or signboard had to be erected on or affixed to a building, the petitioners would also enter into a suitable agreement in this regard with the owners or the owners' association of the building. He submitted that in or around August, 2008, the petitioners approached the Board, seeking its permission on payment of the usual charges to install a large sized electronic signboard on a building known as Kashif Centre. In reply, by means of its letter dated 12-9-2008, the Board gave its permission subject to the fulfilment of the conditions specified therein, of which only one is in dispute herein, namely the payment of an annual advertisement tax amounting to Rs,14,00,000. The petitioners were shocked at the exorbitant amount being demanded, since it was greatly in excess of the amounts earlier demanded and paid by them in respect of other hoardings and signboards within the Board's jurisdiction. Upon enquiry, they were informed that the rates of the advertisement tax had been enhanced by the Board by means of its resolution C.B.R. No, 8, passed on or about 28-4-2008. It is this resolution that has been challenged by the petitioners.
' Learned counsel for the petitioners submitted that the power to levy a tax is conferred upon the.
Board by section 60 of the Act. That section mandates, inter alia, that the tax in question can only be imposed with the previous sanction of the Federal Government and must also be published in the official Gazette and takes effect only from the date of such publication. Learned counsel submitted that none of these mandatory conditions had been fulfilled in the present case and hence the enhanced rate at which advertisement tax was being demanded was ultra vires the Act.
He accordingly prayed that the impugned resolution of the Board be declared illegal and of no lawful effect, with consequential relief in respect of the amount demanded on the basis thereof.
4. Learned counsel appearing for the Board submitted that the impugned amount being demanded from the petitioners was not a tax, but rather a fee. He submitted that the amount had been mistakenly referred to as a tax in the Board's letter dated 12-9-2008, and the mistake had been subsequently rectified. He also placed on record a number of receipts showing the payments earlier made by the petitioners in respect of other hoardings and signboards and submitted that it was clearly stated therein, that the amount was being demanded (and paid) by way of an "advertisement fee" and not an "advertisement tax". He submitted that the Board was duly empowered to levy a fee in respect of hoardings and signboards pursuant to certain bylaws that had been framed as long ago as 30-9-1949 ("the Bylaws"). In particular, he placed reliance on Bylaw 4, which empowers the Board to charge such fee as it may, from time to time, deem appropriate in respect of hoardings and signboards. According to learned counsel, the Board's impugned resolution had been passed in exercise of the powers conferred by Bylaw 4. Thus, according to him, the impugned resolution had been properly passed in the lawful exercise of powers duly vested in the Board and he therefore prayed that the petition be dismissed.
5. In reply, learned counsel for the petitioners denied that the impugned amount being demanded from the petitioners was a fee and not a tax. He submitted that the Bylaws did not apply in the facts and circumstances of the present case. He reiterated that the charges levied by the Board in respect of signboards and hoardings, and advertisements thereon, clearly came within the ambit of section 60 and in this regard referred to an earlier notification that had been issued, being S.R.O.
278(1)192, dated 19-4-1992. This notification had been expressly issued under section 60 with, the previous sanction of the Federal Government, and superseded an earlier notification that had been issued in 1966. Learned counsel submitted that even on a bare reading of this notification, it was clear that in terms thereof a tax was being imposed on advertisements on hoardings and signboards. His case therefore was that the amount sought to be charged from the petitioners was a tax and not a fee. He also referred to Collector of Customs v. Sheikh Spinning Mills Ltd. PTCL 1999 CL 752 and Ejaz Shafi and others v. Federation of Pakistan and others PLD 1997 Karachi 604 to explain the well-known distinction between a tax and fee, and submitted that the impugned amount clearly did not come within the scope of the latter type of levy. He also referred to a decision of this Court reported as Raja Kumar v. Hyderabad Cantonment Board 2006 MLD 549, a case that arose under the Act, to submit that neither any tax nor any fee could be levied without appropriate authority, which according to him was completely missing in the present case. The last referred decision was also referred to by learned counsel for the respondent-Board.
6. We have heard learned counsel for the parties, examined the record with their assistance, and considered the case-law relied upon by them. It is apparent from the submissions of learned counsel for the parties that the controversy can be narrowed down to an examination of whether or not the Bylaws apply in the facts and circumstances of the present case, i.e,, to the impugned resolution. If so, then the amount demanded by the Board from the petitioners is lawful. If however, the 'Bylaws do not apply, then the only other provision under which the impugned amount could have been levied and demanded is section 60, and it is an admitted position that if this section were to be applicable, then as mandated in terms thereof, the Board did not either obtain the previous sanction of the Federal Government nor was there any publication in the Official Gazette.
7. Accordingly, we begin with a consideration of the Bylaws. The opening recital of the Bylaws states that they have been framed pursuant to the powers conferred on the Board by clause (23) of section 282 read with section 283 of the Act. These provisions, insofar as is present& relevant, are as follows:-- "282. Power to make bye-laws.---Subject to the provisions of this Act and of the rules made thereunder, a Board may, in addition to any bye-laws which it is empowered to make by any other provision of this Act, make bye-laws to provide for all or any of the following matters in the cantonment, namely:-
(23) the regulation of the posting of bills and advertisements, and of the position, size, shape or style of name-boards, sign-boards and sign-posts."
' Section 283 provides for the penalties that may be imposed if any of the bylaws framed under section 282 are violated and does not need any detailed consideration.
8. The provisions of the Bylaws relevant for present purposes are as follows (emphasis supplied):--
(1) In these bylaws, unless there is anything repugnant in the subject or context, "notice" includes a circular, placed advertisement, hand-bill or poster, written, painted or printed.
(2) The Cantonment Board may provide, at suitable places within the Cantonment, such number of public notice-boards, as it may think fit, for the purpose of posting or affixing notices.
(3) Such notice-boards shall be of uniform size and each of such notice-board shall be divided into such number of equal spaces as the Cantonment Board may think fit.
(4) For the use of each space on any such notice-board the Cantonment Board may either charge such fee as it may, from time to time, by public notice, prescribe in this behalf, or may allow any such notice-board to be used free of charge..
(5) Where such notice-boards have been provided by the Cantonment Board, no person shall without the permission in writing of the Executive Officer, or such other officer as may be appointed, in this behalf, post or affix, or cause to be posted or affiked, any notice upon or to any building, land, tree failing, culvert, telegraph-post or any other immovable property belonging to the Government, or to the Cantonment Board, or under the control of the. Cantonment Board, or upon or to the outer wall of any residential building, or on the entrance gate leading to, off the wall or fence surrounding such building.
(6) No notice shall be posted upon or affixed to any such notice board unless it has been previously passed by the Executive Officer, or other officer appointed in this behalf.
(12) The Cantonment Board may, by public notice, regulate the position, size, shape or style of name boards, signboards, signposts, electric signs, cloth or paper streamers of bunting within Cantonment limits, in such manner as may be specified in the notice.
' In our view, the Bylaws can be regarded as falling into two parts. Firstly, the Bylaws are primarily concerned with such public notice-boards as are, or may be, provided by the Board itself. This is clear from Bylaw 2. It is also clear, through the repeated use of the word "such" in each of the succeeding Bylaws 3 to 6, that the said Bylaws relate only to Bylaw 2, i.e,, the public notice-boards being provided by the Board itself. In other words, the fee referred to in Bylaw 4 relates only to the Board's own notice-boards and not otherwise. It is only if such a notice-board is to be used that the Board may charge such fee as it may deem appropriate from time to time (of course, it may also allow the notice-board to be used free of charge). Thus, the amount being charged pursuant to Bylaw 4 is correctly called a "fee" because a specific service is being provided to the persons who wish ta place their notices (as defined in Bylaw 1) in the cantonment: they are being provided notice-boards by the Board for this purpose. It is therefore clear that Bylaw 4 does not have anything to do with the charging of any amount with respect to a hoarding, billboard or signboard installed by another person within the limits of the Board's jurisdiction. Secondly, Bylaw 12 deals generally with signboards, signposts, electric signs and other advertising material, and allows the Board to regulate the position, size, shape etc. Of such hoardings, signboards, etc. However it is clear that the Bylaws do not contemplate the payment of any fee in connection with such hoardings and signboards. The only bylaw (Bylaw 4) which deals with fees relates only, as noted above, to the Board's own notice-boards. It is also to be noted that clause (23) does not, as such, empower the Board to levy a fee in respect of hoardings or signboards. Thus, while the Board may charge a fee in respect of the use of its own property (i.e,, the notice-boards provided by it pursuant to Bylaw 2), there does not appear to be any provision allowing or enabling it to charge a fee in respect of a hoarding or signboard of another person.
9. The only provision under which the Board can levy a charge in respect of advertisements on other hoardings or signboards would thus appear to be section 60, and in our view, learned counsel for the petitioners aptly made reference to the aforesaid notification S.R.O. 278(1)/92 dated 19-4-1992 ("the notification") that had been issued thereunder. Paragraph 2 of the notification deals expressly with hoardings and provides as follows: "Hoarding:
(a) When board or other advertisement material of a permanent or quasi permanent nature is displayed at a place with a thing advertised is not manufactured or sold the rate of tax shall be rupees per square foot per month on the size of the advertisement material.
(b) Where the advertisement material is illuminated the tax shall be 10% more of the above rate."
' The foregoing provision deals expressly and directly with the situation presently under consideration. It is therefore clear that what the Board charges from persons wishing to place advertisement hoardings and signboards within its jurisdiction is an advertisement tax pursuant to section 60, and permission (i.e,, a 'no objection certificate') for the position, size, shape, et cetera of such hoardings and signboards is granted pursuant to Bylaw12 of the Bylaws.
10. In our view, since the applicable provision in the present case was section 60, and not Bylaw 4, it was a mandatory requirement before enhancement of the rates involved that the Board, inter alia, obtain the prior sanction of the Federal Government, and get the new rates published in the official Gazette. It is an admitted position that this exercise was not carried out in relation to the impugned resolution, i.e, resolution C.B.R. No,8 dated 28-4-2008. Accordingly, both the enhancement of rates in terms thereof and the demand based on such purported enhancement are ultra vires the Act, without lawful authority and of no legal effect.
11. In view of what has been stated herein above, this petition is allowed and resolution C.B.R. No,8 dated 28-4-2008, and the enhanced advertisement tax demanded from the petitioners by the Board by means of its letter dated 12-9-2008 on the basis thereof, are quashed as being without lawful authority and of no legal effect. The petitioners are entitled to a proper computation of the advertisement tax payable by them, in accordance with law. IR case the impugned demand at the enhanced rate has been paid by the petitioners, they shall be entitled to a refund of the excess- amount paid by them. This entire exercise must be completed within 30 days from the date of this decision. The petition and listed application stand disposed off in the above terms, but without any order as to costs.