SYED ARSHAD ALI, J:-Through the instant petition, Ahmed Ali, the petitioner, has called in question notification No, AOII/LCB/19- 42/2010 dated 27.08.2011 issued by the respondent No, 5, Deputy Secretary-III, Local Government Board, Government of Khyber Pakhtunkhwa, Peshawar and notification No, 1178/TMA(G) dated 29.09.2011 issued by the respondent No, 2, Tehsil Municipal Officer, whereby a tax schedule of license/permit fee on sand, bajri etc. in the limit of TMA Ghazi was approved.
2. The brief and essential facts of the present petition are that the petitioner claims to be a registered owner of a stone crusher plant at village Aamgah, Tehsil Ghazi, District Haripur. The petitioner further claims that his business is being regulated under a license issued by the Directorate of Industry, Commerce, Government of Khyber Pakhtunkhwa, Peshawar and is carrying out mining activities by producing bajri/sand by crushing the white mine stone/limestone through a plant established by him at site and in this regard he is regularly paying excise duty and royalty to the Mines and Mineral Department of Khyber Pakhtunkhwa in accordance with the provisions of the Khyber Pakhtunkhwa Mining Concession Rules, 2005. It is further averred in the petition that the respondent, Tehsil Municipal Administration Ghazi, Haripur has no authority to levy any tax or fee on the transportation of -sand and bajri being produced by the petitioner, therefore, the impugned notification, whereby fee/tax has been imposed on transportation of sand and bajri, is beyond the mandate and authority of the respondent Tehsil Council. Whereas, the claim of the respondents is that the TMA has been empowered under section 42 and part-III of 3rd Schedule of Khyber Pakhtunkhwa Local Government Act, 2013 (hereinafter referred to as "Act") to impose and levy tax on the transportation of sand and bajri and thus the impugned notification is intra-vires.
3. Arguments heard and record perused.
4. The learned counsel appearing on behalf of the petitioner has argued that the entire business activities of the petitioner are governed and regulated under the Mining Concession Rules 2005, and the respondents under the Act have no authority to impose the impugned tax but it is the Local Council, established under the Act, that has the authority to levy tax/fee only to the extent and the matters relating to the items specified in part III of 3rd Schedule to the Act. The impugned levy on sand and bajri is not covered under any item/entry enumerated in the 3rd Schedule, hence, is ultra vires.
5. Against that, the learned counsel appearing on behalf of the respondent has raised preliminary objections regarding the maintainability of this petition. He has argued that the Local Government Commission ("LGC"), which has been established under section 54 of the Act, has the jurisdiction to take cognizance of violation of laws and rules by the local government, hence the petitioner has an appropriate remedy available to lodge his grievances before LGC, therefore, unless the alternate remedy available under section 54 of the Act is availed, direct approach to the High Court is unwarranted. He has further argued that the impugned notification was passed in the year 2011 whereas the present writ petition has been filed in 2017 which is hit by laches.
6. First, we would like to address the preliminary objections raised by learned counsel for the respondent. The learned counsel has argued that the issue in hand can be decided by the LGC which is established under section 54 of the Act as one of the functions of the LGC is to take cognizance of violation of laws and rules by local Government. The alleged remedy provided under section 55 (1) (e) of the Act, reads as under:- "55. Functions of the Local Government Commission.---(1) Functions of the Local Government Commission shall be to:
(a) -------
(b) -------
(c) -------
(d) -------
(e) Take cognizance of violations of laws and ruled by a local government."
Perusal of section 55(1) would show that the said remedy is neither efficacious nor does the same appears to be clear, unambiguous and speedy to hold that the present constitutional petition is not maintainable. Indeed, to hold a constitutional petition not maintainable and pre-mature because there is a statutory remedy available, the High Court while exercising constitutional jurisdiction shall not mechanically refuse to entertain the petition unless the conscious of the-court is satisfied that that the said statutory remedy is clear, efficacious and speedily available to the litigant. Cases like the present one, involving resolution of substantial question of law, i,e, the jurisdiction of the Tehsil Council to impose and levy tax on transportation of sand and bajri, would ultimately come to this court as it involved interpretation of the various provisions of the Act. Hence, direct approach to the High Court under the constitutional jurisdiction by avoiding vague, absurd and illusionary remedy is permissible as under the constitution, interpretation of a law rests with a superior judiciary. In "United Business Lines, S.1.E Gujranwala and another v. Government of Punjab, through Secretary Local Government Lahore and 5 others"(PLD 1997 Lahore, 456) the learned High Court has held that:- "It is true that exercise of the Constitutional jurisdiction and issue of writ of mandamus, prohibition or certiorari is conditioned upon the non-availability of other adequate remedy in law. Generally speaking, therefore, a litigant must first avail of the alternate remedy available in law and can directly invoke this jurisdiction only if it is shown that the remedy, even if provided, is not adequate or efficacious. Further, efficacy and adequacy of other remedy depends upon the facts and circumstances of each case and what may be efficacious and adequate in given circumstances may not be so in other circumstances. By and large where resolution of some question of law is required to be made, direct approach to the High Court is permissible. The reason is that the persons performing functions in connection with the affairs of the Federation/Province are sometimes themselves in need of guidance from superior Courts on questions which they are required to determine. There is preponderance of judicial view that in such cases the party need not be compelled to avail of the other remedies because under the Constitution, the interpretation of law is the responsibility of the superior judiciary." Similarly, in "Government of Punjab v. Messrs Crescent Textile Mills Limited"(PLD 2004 SC 108), the august Supreme .court has held:- "The argument that a number of questions of facts were involved in the case which were required to be decided, therefore, the respondent writ petitioner should have been directed to seek alternate remedy of filing suit, for evidence to determine disputed questions of facts could not be recorded within the scope of Constitutional jurisdiction under Article 199 of the Constitution has also no force though there can be no cavil with the general proposition of law as contained in this argument. The only question which was involved in this case was as to the date with reference to which the price of the land is to be determined and charged from the respondent-writ petitioner, as such, the same did not require recording of any evidence being a pure question of law, as such, the same could legally be decided in the Constitutional jurisdiction. Besides, availability or alternate adequate and efficacious remedy does not have adverse effect on the jurisdiction of the High Court to entertain petition under Article 199 or the Constitution whereas it is relevant only to decide whether discretion vested in the Court under the said Article should or should not in a particular case in the attending circumstances be exercised. The High Court while entertaining the Constitutional petition in this case in its discretion did not commit any illegality. It was justified in law in the facts and circumstances of the case, for we have noticed that the possession of the land was given to the respondent-company in 1953 with the understanding that industries should be .established which it by investment of huge amount established the industry, therefore, the company had fulfilled its part of the commitment; as such, even if it is assumed for the sake of argument without conceding that any other remedy was available the same was neither adequate nor efficacious. It was eminently a fit case for interference under Article 199 of the Constitution, therefore, this argument has no force."
8. The learned counsel on behalf of the respondents has, in this regard, relied upon "Israr Ahmed v.
Tehsil Naib Nazi, Tehsil Lahore District Swabi (2007 YLR 2623) and "Shafi Ullah Khan, Vice President v. Zarai Taraqiati Bank Ltd." (2014 PTD 1345). In Israr Ahmed's case, the issue was an internal dispute between the organizations, the officers, the authorities and the Local Governments at different levels. Hence, it was held that the said disputes are to be settled internally through the mechanism provided in the Ordinance itself, therefore the ratio of the said judgment is not applicable to the present case as in the present case the dispute relates to the interpretation of various provisions having direct nexus with the fundamental rights of the Petitioner guaranteed through Articles 18, 23 and 24 of the Constitution of Islamic Republic of Pakistan ("Constitution"). In the latter case, this Court has refused to entertain direct writ petition by passing the statutory provision of appeal under section 127 of the Income Tax Ordinance, 2001. However, as per the law laid down by the superior court, that in order to attract the bar of constitutional jurisdiction of a High Court through sub-constitutional legislation, the remedy provided by the sub-constitutional legislation must be clear, meaningful, effective, adequate and efficacious. Mere mentioning in sub-constitutional legislation that the Local Government Commission shall take cognizance does not appear to be adequate, efficacious and meaningful.. However, the High Court will be slow in entertaining constitutional petition where the sub-constitutional remedy is meaningful and efficacious, for example proceedings emanating in the Code of Civil Procedure, Code of Criminal Procedure, Income Tax Ordinance etc. Therefore, when in the present case, the petitioner has challenged the very jurisdiction of the respondent to levy the impugned duty, hence the Petitioner cannot be compelled to approach the LGC.
9. Now, moving to the other objection that the present petition is hit by the principle of laches as the impugned notification was issued in the year 2011, based on the original notification of 2002, and the present petition was filed on 21.09.2017, hence at this belated stage, the present petition is hit by principle of laches. The learned counsel has relied on "Muhammad Din v. Abdul Ghani, (2012 SCMR 1004), Barkat Ali v. President/Chief Executive, PTCL Islamabad (2014 PLC (C. S.) 352) and Muhammad Hussain Bhatti v. Province of Punjab (2014 PLC 297). Regarding the maintainability of present petition on laches, suffice it to mention that the impugned notification has the effect of recurring cause of action, and in all cases of continuous wrong the bar of laches would not be attracted, more particularly when the public authorities are taxing the public without having the authority and when such illegality is brought before this Court, the Court cannot shut its eyes on such illegal extraction of money by the public authority on technical ground of laches. The bar of laches is neither absolute nor is equal to the bar of B limitation under the Limitation Act, 1908. The August Supreme Court of Pakistan has elaborately laid law regarding the matter brought before the constitution court at belated stage in "Umer Baz Khan v. Syed Jehanzeb" (PLD 2013 SC 268), in the following words:- "This Court while dealing with the bar of laches in the case of "Pakistan Post Office v. Settlement Commissioner and others" (supra) held as under:-- "C. -- It needs to be emphasized that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter, subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court - it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right, or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain. and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches".
The same principle was reiterated in the case of Masood Begum through Legal Heirs v.
Government of Punjab through Secretary Forest, Lahore and 9 others" (supra). Even otherwise, bar of laches cannot be over emphasized in the cases where the relief claimed is based on recurring cause of action."
In view of the above, both the objections of the learned counsel are overruled.
10. Now adverting to the issue as to whether the respondent/Tehsil Council has any authority to impose any tax/license/permit fee on sand/ bajri, under the provisions of the Act. The perusal of the notification dated 29.09.2011 shows that the impugned levy has been imposed under section 54 (1), 67 (i) and section 116 of the erstwhile NWFP Local Government Ordinance, 2001. In order to fully understand the import of the law, we would like to reproduce relevant provisions of the aforesaid sections:- "54. Functions and powers of the Tehsil Municipal Administration.---
(l) Propose taxes, cesses, user fees, rates, rents, tolls, charges, surcharges, levies, fines and penalties under Part III of the Second Schedule for approval of the Tehsil Council and notify the same after such approval;
67. Functions and Powers of the Tehsil Council.---The functions and powers of the Tehsil Council shall he---
(1) to apply taxes, cess, rates, rent, fees, user-charges, tolls, levies, fines and penalties proposed by Tehsil Municipal Administration specified in 1[Part-1111 of the Second Schedule;"
11. Since the details of items which are the subject matter of the Tehsil Council having the power to impose taxes fee etc. are provided in part-III of the 2nd Schedule, hence, for ease reference, the said are reproduced as under:- "SECOND SCHEDULE Part-III"
Tehsil Council
1. Local tax on services.
2. Fee on sale of animals in cattle markets.
3. Market fees.
4. Tax on the transfer of immovable property.
5. Property tax rate as specified in section 117 of this Ordinance.
6. Fee on advertisement, other than on radio and television and billboards.
7. Fee for fairs, agricultural shows, cattle fairs, industrial exhibitions, tournaments and other public events.
8. Fee for approval of building plans, erection and re-erection of buildings.
9. Fee for licenses or permits and penalties' or fines for violations.
10. Charges for development, betterment, improvement and maintenance of works of public utility like lighting of public places, drainage, conservancy and water supply by Tehsil Municipal Administration.
11. Fee on cinemas, dramatical, theatrical showi and tickets thereof and other entertainment.
12. Collection charges for recovery of any tax on behalf of the Government, District Government, Union Administration or any statutory authority as prescribed.
13. Rent for land, buildings, equipment, machinery and vehicles.
14. Fee for specific services rendered by a Tehsil Municipal Administration.
15. Tax on vehicles other than notor vehicles registered in the Tehsil." We are also conscious of the fact that the erstwhile 2001 Ordinance has since been repealed through Khyber Pakhtunkhwa Local Government Act, 2013 and hence, the powers of the Tehsil council is also to be visualized under the provisions of the Act as at the relevant time of issuance of the impugned notification the erstwhile Ordinance of 2001 was in field. The corresponding sections of sections 54 and 67 are sections 42 and 25, hence it would also be advantageous to reproduce section 42 of the Act which is as under:-
42. Imposition, notification and enforcement of Taxes.---(1) A local Government subject to the provisions of any other law may, and if directed by Government shall, levy all or any of the taxes and levies specified in the Third Schedule.
(2)No tax shall be levied without previous publication of the tax proposal inviting and hearing public objections and approval of the respective local council.
(3)A local government may reduce, suspend or abolish a tax.
(4)Where a tax is levied or modified, the local government shall specify the date for the enforcement thereof, and such tax or the modification shall come into force on such date.
(5)Government shall have power to direct a local government to levy any tax, increase or reduce any such tax or the assessment thereof and suspend or abolish the levy of any tax.
12. Under section 42 of the Act, the Tehsil Municipal Administration was empowered to levy tax/fee on 15 items which are provided in part-III of the 3rd Schedule and the same are as under:- Part-III Tehsil Municipal Administration.
1. Local tax on services.
2. Fee on sale of animals in cattle markets.
3. Market Fees.
4. Tax on the transfer of immovable property.
5. Urban Immovable Property Tax as specified in this Act.
6. Fee for fairs, agricultural shows, cattle fairs, Industrial exhibitions, tournaments and other public events organized by Tehsil. Municipal Administration.
7. Fee for licenses or permits and penalties or fines for violations.
8. Fee on cinemas, dramatical, theatrical shows and tickets thereof, and other entertainment.
9. Collection charges prescribed for recovery of any tax on behalf of the Government, other local governments or any statutory authority.
10. Rent for land, buildings, equipment, machinery and vehicles owned by Tehsil Municipal Administration.
11. Fee for specific services rendered by a Tehsil Municipal Administration.
12. Tax on vehicles other than motor vehicles registered in the Tehsil.
13. Fee on advertisements, other than on radio and television, and billboards.
14. Fee for approval of building plans, erection and re-erection of buildings.
15. Charges for development, betterment, improvement and maintenance of works of public utility like lighting of public places, drainage, conservancy and water supply by Tehsil Municipal Administration."
13. Keeping in view the above, we have to examine whether the respondent Tehsil Council has any authority to have issued the impugned notification. For that matter we have to juxtapose the relevant portion of the original notification dated 18.05.2002 whereby the Tehsil Nazim, Tehsil Municipal Administration, Ghazi has notified the imposition of new taxes within local limits of TMA Ghazi on different items with the entries mentioned in the 3rd Schedule of Part III of the Act/Ordinance in order to reach at a conclusion regarding the power and mandate of the Tehsil Council to have levied/imposed the impugned fee/tax. In the said notification various items/activities have been taxed. The relevant item which is impugned before us is at serial No, 9 of the said notification relating to imposition of tax/ fee on license/permit for production of stone, sand, bajri, grouttee etc. is reproduced as under:-
9. Fee for License/permits for production stone, sand, Bajri and groutee etc as per schedule of rates on different Vehicles.
Trolly Rs, 15/- Bedford single truck Rs, 50/- Hino, Nissan, Mercedese single Rs, 75/- Ten Wheelers double Truck Rs, 100/- trallor Rs, 200/- Scrape per trip Rs, 3000/-.
14. The amount of tax/fee levied through the aforesaid notification have been enhanced through the impugned notification dated 27.08.2011. The close perusal of item at Serial No, 9 mentioned in the notification would show a fee for license/permits for production of stone, sand, bald and grouttee etc. as per schedule rates on different vehicles has been imposed. We are clear in our mind that the subject of this fee/tax is production of stone, sand, bajri and grouttee and not the vehicle carrying the same. The perusal of entries in part III of the 3rd Schedule clearly shows that none of such entry envisages for collection of any fee on bajri and stone. The learned counsel for respondents has referred to Entry No,9 of the said 3rd Schedule and has argued that the Tehsil council has the authority to levy fee for licenses or permits and in the impugned notification a license fee has been imposed on production and sand and bajris. This argument of the learned counsel for the respondents does not carry any weight as under the Act the respondents have no authority to regulate the business of the petitioner through issuing of any license of permits.
Indeed, under the Act the license and permit fee can be levied on those business which are regulated by the Respondent Tehsil Council under the Act. Whereas the business of the Petitioner as stated above is being regulated and charged by the Provincial Government under the Mining Concession Rule of 2005. In this regard the petitioner has placed on file a license No, 08/3/9/S- Crusher/IDO-H, dated 20.09.2017 issued by the Directorate of Industries, Commerce Government of K.P.K. Peshawar.
16. Hence, there is nothing on record nor it is the case of respondent that the business of the petitioner is being regulated by any of the local government either under the provisions of erstwhile Local Government Ordinance, 2001 or the Act. Apart from the above the petitioner has also placed on file the decision taken in 23rd meeting of the LGC on 4th November, 2016 regarding the imposition of tax by Tehsil Municipal Officer Oghi District Mansehra on mineral products. According to the said decision, the tax imposed by Tehsil Municipal Administration Oghi on mineral products was declared to be not in accordance with the Local Government Act, 2013 Third Schedule Part-III.
When the decision has been taken regarding one district then the same is equally applicable to the similar activates being carried out in another district. The activities being carried out by the petitioner are at par regarding which the local Commission has taken the decision. In view of the above, this Court has come to inescapable conclusion that Tehsil Council has no authority to levy any tax/fee on production of stone, sand/bajri, hence, the impugned notification including the one dated 18.05.2002 are without lawful authority.