' The instant appeal has been preferred against the order dated 13-2-2009 passed in Writ Petition No. 1145 of 2008 by the learned single Judge of this Court.
2. The Govt. Of the Punjab, Communication and Works Department, vide Notification No.SOH-III (C&W) 3-19/ 2008-09(RWP) dated 26-8-2008 levied Toll Tax on the vehicles destined to P.C, Burban at Rs.200 per vehicle w.e.f. 7-7-2008. The vehicles belonging to the respectables and regular staff of P.C, Burban were however exempted from the payment of the tax. The appellant a public limited company, owning and operating the Pearl Continental Hotels, challenges the vires of the said notification on the following grounds:--
(i) That P.C. Hotel, Burban is situated at Kohala Road Murree which is also used by the other Restaurants, Hotels and the commercial accommodation facilities. The vehicles heading towards the hotels and facilities other than P.C. Hotel are not made to pay the Toll Tax. The imposition of tax is discriminatory.
(ii) That through the notification in question, all the vehicles using the approach road, if necessary, should have been subjected to the tax but only those bound for P.C. Hotel, Burban are made to pay it. The manner of imposition and choice of the subject-matter besides being discriminatory, is irrational as well.
(iii) That the imposition of Toll Tax is unreasonable and the amount of tax is un proportionate to the length of the road.
3. Comments requisitioned from the respondents were submitted in the petition. A preliminary objection was raised that the writ petition is not maintainable and the appellant is not an aggrieved person. The approach road to the P.C. Hotel, Burban is owned by the Punjab Highway Department, therefore, the respondents have the authority to levy toll tax on the vehicles. The vehicles of the employees belonging to the P.C. Hotel, Burban have been exempted from the tax, therefore, no injury is caused to the appellant.
4. The learned Single Judge seized with the petition was of the view that a reasonable restriction could be imposed and taxes etc. Could also be levied and thus no grievance was caused to the appellant.
5. The learned counsel for the appellant contends that through the impugned notification, the taxes have not been levied on the vehicles plying on the approach road. It has in fact been imposed on only those vehicles that are bound for P.C, Burban. The Toll Post has been set up at a point that allows the vehicles destined to other commercial accommodation facilities to escape the tax. The Hotel Industry is already undergoing severe crisis, the imposition of such unreasonable toll tax will damage it to an irreversible extent and that the learned Judge has not appreciated the law referred by the appellant.
6. It is contended by the learned counsel for the respondents that the respondents have a right to levy taxes as they have provided the appellant an approach road to its business hub and that any reasonable restrictions meant to regulate the affairs and to streamline the working of various functionaries are permissible under the Constitution and the laws of the land.
7. We have heard the learned counsel for the appellant, learned counsel for respondents T.' os. 2 and 3, learned A.A.-G. And also perused the record.
8. A point needed be addressed at the very outset is whether the appellant is an aggrieved person or not. There can be no doubt that a person intending to visit the petitioner's hotel to take a cup of tea, will think twice to pay Rs.200 as toll tax at the entry of the hotel. The imposition of the tax at this rate affects the business of the appellant. Even if an actual damage is not caused to the appellant, he has been injured. He is an aggrieved party as he is personally interested in performance of the functions by the respondents in accordance with law and in a fair and reasonable manner.
Reliance is placed on "2005 CLD 264 [Karachi]" titled English Biscuits Manufacturers (Pvt.) Ltd. And another v. Monopoly Control Authority and others, "2008 CLC 1648 [Supreme Court (AJ&K)] titled Chaudhry All Muhammad Chacha v. Azad Government and 4 others "PLD 1969 Supreme Court 223" titled Mian Fazal Din v. Lahore Improvement Trust, Lahore and another, and "1991 SCMR 483" titled Dr. Abdur Rauf and others v. Sh.Muhammad Iqbal and others.
9. There is no cavil to the fact that under sections 3 and 6 of the Punjab Tolls on Road and Bridges Ordinance 1962, the toll tax may be imposed on the vehicles using the bridges and plying on the roads, but the tax imposed has to be indiscrimi natory, reasonable and rational. The Notification betrays grave discrimination against the appellant. Toll tax has not been levied on the vehicles in general that use the road and cause its wear and tear but on the vehicles bound for P.C, Burban.
The law referred in the notification permits the levy of tax on account of the use of the roads and the bridges but the tax levied by the notification is destination oriented. The Notification smells discrimination and grudge, therefore, is illegal and liable to be set aside. As is contended by the learned counsel for the appellant and as is not denied by the other side, the Toll Post has not been established at the injunction of the approach road to P.C. At Kohala Murree Road that has, on its flanks, some other Hotels and accommodation facilities but is established at the point of ingress to the P.C. Hotel, Burban. The vehicles entering the other hotels or commuting the passengers thereto are not made to pay the same tax. Such a treatment is definitely hit by Articles 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973, which guarantee the freedom of trade and business and postulate the equality of the citizens before law, subject to such qualifications, if any that may be prescribed by law. Such qualifications should be aimed at regularizing the affairs and should not be directed against a particular person or a class of persons. Reliance is placed on "PLD 1999 Karachi 99" titled Muhammad Shafiq and others v. Town Committee, Digri and others, "PLD 1992 Karachi 378" titled Abdul Aziz and others v. The State and others, "1991 SCMR 1041" titled I.A.
Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others, and "PLD 2006 Karachi 479" titled Messrs A Facto Belarus Tractors Limited Karachi and another v. Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives Islamabad and others. The impugned notification is directed against a single concern.
Learned counsel appearing on behalf of the Highway Authority when asked, told, that the length of the approach road is one kilometer from Kohala Murree Road. The amount of Toll Tax at the rate of Rs.200 is unproportionate to the facility and irrational in its application. The learned counsel for the appellant however, agrees that levying of a tax at Rs.50 per vehicle would be reasonable and proportional to the facility provided by the respondents, if same is indiscriminatory as well. We have come to the conclusion that the respondents have an authority to impose toll tax provided it is not discriminatory, unreasonable, irrational or un-proportionate. The quantum of tax proposed by the appellant seems to be reasonable and proportionate to the facility. The respondents may impose the tax but it shall in no case be more than Rs.50 per vehicle at present. The respondents may also enhance the rate of toll tax from time to time keeping in view the average enhancement ordered in the toll tax for the use of roads in the Rawalpindi Division. In order to ensure the elimination of every type, of discrimination, it is ordered that toll tax post should be shifted from the point of entry to P.C. And be established at the point where the approach road to the P.C. Hotel Burban takes a start off Kohala Murree Road and all the vehicles except those exempted in the notification in question should be made to pay the toll tax irrespective of their destination. The shifting of the post should be effected within a period of two weeks. The rate of tax should be reduced from 200 to Rs.50 or less, the moment the order is communicated to the respondents. This Intra-Court Appeal stands accepted.