WAQAR AHMAD SETH, J.---Muhammad Farooq petitioner seeks the constitutional jurisdiction of this Court praying for:-- "that on acceptance of the writ petition, the auction conducted in pursuance of the public notification impugned herein may graciously be ordered to be set aside by ordaining that the stands are integral part and parcel of the main Adda, therefore, the respondents cannot encroach upon the rights of the transporter's/ petitioners to run the Adda on the customary principles in vogue since the very erstwhile and be restrained perpetually from ousting the stands jointly or severally through public auction or any other means".
2. Brief facts, as per contents of petition, are that petitioner is the Chairman Mutahida Transport Association Hazara Division for looking after the matters of the transport throughout Hazara Division and the transporters themselves are running the Addas throughout the country. Every year the respondents auctioned the Adda fee, the proceed wherefrom runs into millions and only latrines are yielding Rs.75,00,000 per year to the TMA and in turn no facilities are provided to the commuters or the transporters, by the respondents. The corrupt staff of TMA Mansehra has alienated a lot of other property within the premises of the general bus stand Mansehra illegally.
The respondents have recently auctioned the stands of Adda which have already been auctioned in the name of Adda, which action of the respondents is based on mala fide and against law.
Hence, this writ petition.
3. Arguments heard and record perused.
4. There is no denial of the fact that the stands situated within the premises of a Adda are always treated as integral part and parcel of the main Adda. It is an admitted fact that throughout the country only Adda fee is auctioned and no stands are auctioned individually and minor fraction on the tickets is spent on the welfare and the needs of the transporters community.
5. The petitioner is the Chairman of Mutahida Transport Association registered with the Registrar of Trade Unions, Hazara Division, Haripur, hence, a legally aggrieved person for the purpose. The very reading of the auction publication reflects that the auction has been intended as some unauthorized persons are making the illegal recoveries, which are against the law. The words used are {{URDU TEXT}} which clearly indicates that illegal recoveries are being regularized/legalized by putting it to auction by the Government functionaries instead of stopping/restraining them. Secondly, the auction notice/ advertisement shows that the auction is regarding the 'terminals' within the Bus Stand. There is no history of such kind of auction of 'terminals' within the bus stand previously, throughout the country. Once the bus stand has been put to auction then auctioning its terminals in this way will surely amounts to double taxation, which is prohibited under the law of the land.
6. Due to alleged auction within the Adda/stand the vehicles would have to pay once on coming out of the terminal to the new contractor under the instant action and would have to pay second time while coming out of main Adda to the previous contractor under the garb of Adda fee and ultimately the general public would suffer and will be taxed twice.
7. In order to give some legal protection to such auction of terminals within the bus stand the respondents could not refer to any law or precedent in this respect rather stated in para-5 of the preliminary objections that the same is a major source of generating the income to cater with the expenses required for the welfare and basic needs of the people at large. A funny and shameful excuse. Instead of restraining the unauthorized person doing so and giving relief to the public at large respondents had legalized the famour `jagga tax'. Respondent No.6 being the highest bidder of Rs.2,85,20,000 would recover the same from the public at large.
8. Learned counsel for respondents Nos.1 and 2 referred to Notification No.358 dated 28-5-1999 vide which "Municipal Committee Mansehra Bus Stand. Bye Laws 1999" applicable to the instant case have been referred which provides:- "2(v) Management of Bus Stand.
(i) The bus stand shall either be run by the Committee, or may be leased out through an open auction for a period so prescribed by the Committee,
(ii) The lease shall include collection of prescribed Adda fee, management of Bus Stand and provision of essential services required i.e. Water supply, Sanitation, street lights etc,
(iii) The lessee shall have no concern with the income from the workshops/shops/restaurants/ flats/ latrines/ petrol pumps/ service stations if any within the Bus Stand. These shall be separately sanctioned or rented out by the Committee as required under the Property Rules, 1980,
(iv) Entry and exit of vehicles to/from the Bus Stand shall be regulated by the Incharge Bus Stand to be appointed by the Committee or its lessee on the basis of 1st come 1st go.
9-Allocation of separate places for various routes.
The Committee may allot different places for the purpose of different routes of vehicles and for issuing tickets or other ancillary or incidental purposes within the Bus Stand.
11-Powers and functions of Municipal Committee, Mansehra with regard to fix and collect Bus - Stand fee.
The Committee shall have the powers to fix Bus Stand fee/Adda fee for using Bus Stand keeping in view the prevailing circumstances and may fix different suitable Adda fee for different routes with regard to the length of routes and availability of services,
(ii) The Committee or its lessee as the case may be shall collect the fee and issue proper receipt thereof and shall maintain separate record and account of such fee.
9. These clauses were referred by respondents Nos.1 and 2 but no where it is shown that under what and which provision the terminals within the bus stand/separate places for various routes have been permitted to be auctioned or any other law was referred authorizing the such double tax nor any reasonable reason/ground was cited for imposing the same. In the case of Pakistan Industrial Development Corporation v. Pakistan through the Secretary, Ministry of Finance reported as 1992 SCMR 891, it was held as under:--
(i) Income Tax Act (XI of 1922)
S.3---Principle of the Act is to charge all income with tax, but in the hands to the same person only once - Double taxation, however, can be imposed by clear and specific language to that effect.
Unless there is any prohibition or restriction imposed on the power of Legislature to impose a tax twice on the same subject-matter, double taxation though a heavy burden and seemingly oppressive and inequitable, cannot be declared to be void or beyond the powers of the Legislature.
It may, however, be noted that double taxation can be imposed by clear and specific language to that effect. Where the language is not clear or specific by implication such levy cannot be permitted. The principle of Income Tax is to charge all income with tax, but in hands of the same person only once. There could be double taxation if the Legislature, distinctly enacted it, but upon general words of taxation, and when one has to interpret a taxing Act, one cannot so interpret it as to tax the subject twice over to the same tax "
10. The pleas regarding the competency and maintainability of writ petition are not entered in view of the laid down in the case of Muhammad Afzal and others v. Government of Pakistan and others reported as 1987 SCMR 2078, wherein it,was held as under:- "Art.199---Constitutional petition--Right to maintain---A right considered sufficient for maintaining a constitutional is not necessarily a right in the strict juristic sense but it is enough if the applicant disclosed that he had a personal interest in the performance of the legal duty which, if not performed or performed in a manner not permitted by law, could result in the loss of some personal benefit or advantage or curtailment of a privilege or liberty or franchise--- Parties in a matter through impleaded at a late stage and the right to bring the decision in proceedings to which they were parties for judicial review in constitutional jurisdiction"
11. In the case of Muhammad Azhar Siddique v. Government of Punjab through Chief Secretary Lahore and 18 others reported as PLD 2010 Lahore 138, it was held:-- "Art.199---Constitutional jurisdiction-- Expression "aggrieved party "---scope---meaning of expression "aggrieved party", under Art. 199 of the Constitution is not to be narrowly construed---It is not necessary for a party to have a right in strict juristic sense nor for the loss of curtailment of a benefit, privilege or liberty---In cases involving public element a "sufficient interest" in performance of legal duty is adequate to sustain recourse to Constitutional jurisdiction of High Court".
12. The respondents also agitated that the petitioner has not availed any other alternate remedy available to him. In this respect, it is held that where the impugned action is completely without jurisdiction and patently illegal it is not essential to avail the alternate remedy, reliance in this respect is placed on PLD 1986 Karachi 68 and 2004 CLC 1104.
13. In view of the above, it is held that impugned action of respondents Nos.1 and 2 auctioning the terminals/stands inside the Bus Adda, Mansehra is illegal and wrong, thus, all the subsequent proceedings including the contract etc are declared void, hence, cancelled. However, respondents Nos.1 to 5 have the power/authority and machinery to take action against any unauthorized person/persons doing or collecting illegal activities. The writ petition stands allowed with no order as to costs.