The Petitioners are Commission Agents at the Fruit and Vegetable Market Muzaffargarh, which was established in 1985, and hold valid licences from the Market Committee (Respondent No. 1) to do business. According to them, initially there was no parking fee for the vehicles coming there but it was imposed a few years back. In the beginning Respondent No. 1 collected it through its own employees but then started contracting out the collection rights. Recently it held auction for the current fiscal year. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution"), the Petitioners have challenged the authority of Respondent No. 1 to impose the parking fee and its auction of collection rights.
2. The learned counsel for the Petitioner submitted that the Punjab Agricultural Produce Markets Ordinance, 1978 (the "1978 Ordinance"), was promulgated for the better regulation of purchase and sale of agricultural produce so that the growers might get maximum price for their commodities.
Thereafter, in exercise of the powers delegated under Sections 35 & 36 thereof, the designated authorities framed the Punjab Agricultural Produce Markets (General) Rules, 1979 (the "PAPM Rules"), and the Bye-laws of the Market Committee Muzaffargarh (the "Bye-laws").[1] According to the learned counsel, when Respondent No. 1 began charging the parking fee it relied upon Rule 23(3) of the PAPM Rules and Clause 14(2) of the Bye-laws to justify its action but that was inapt because both the provisions were ultra vires of the 1978 Ordinance. He argued that the Punjab Agricultural Marketing Regulatory Authority Act, 2018 (the "2018 Act") had somewhat changed the situation and Respondent No. 1 was still not competent to auction its parking fee collection rights as no Rules, Regulations and Bye-laws in terms of sections 29, 30 and 30A of the 2018 Act had been, framed to structure the process.
3. The learned Assistant Advocate General vehemently opposed this petition. He contended that, firstly, the Petitioners had no locus standi. Secondly, they had come to the court with unclean hands. They concealed the fact that in 2015 they filed a civil suit seeking the same relief which was dismissed for non-prosecution. Thirdly, Section 15C of the 2018 Act fully empowered Respondent No. 1 to charge the parking fee and no further legislation by way of rules, regulations and by-laws was required.
Opinion
4. It is trite that no tax, fee, charge or levy, by whatever name called, can be imposed by the government or a public body except under the authority of a law enacted by a competent legislature.[2] The Petitioners are Commission Agents at the Fruit and Vegetable Market Muzaffargarh and are doing business. They are directly concerned with the imposition of the parking fee. In Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883) the Hon'ble Supreme Court of Pakistan held that "for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense. It is enough if he discloses that he has a personal C interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise." Therefore, the objection of the Respondents regarding the Petitioners' locus standi is overruled.
5. It is incumbent on every litigant to place all the relevant facts before the Court and not to hide anything. This is a duty corresponding to the right to fair trial. It is all the more important when he invokes the constitutional jurisdiction of the High Court under Article 199 of the Constitution. In Amar Singh v. Union of India and others [(2011) 7 SCC 691 the Supreme Court of India held: "Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with 'unclean hands' and are not entitled to be heard on the merits of their case."
6. In Muhammad Arif v. Uzma Afzal and others (2011 SCMR 374) the Supreme Court of Pakistan held: "There is no cavil to the proposition that the conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim 'he who seeks equity must do equity'. Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands.
He may claim relief only when he himself is not violating provisions of law, especially of the law under which he is claiming entitlement."
7. Admittedly, in the year 2015 the Petitioners filed a civil suit seeking a declaration that the parking fee was illegal and prayed for a permanent injunction against is recovery. The said suit was dismissed for non-prosecution and they never made any effort to get it restored.
This was indeed an important fact and the Petitioners were under a bounden duty to mention it- in their writ petition but they did not. In the normal course I would have taken this omission an offence and non-suited them but have elected to condone it for two reasons: first, the issue involved in this case is of public importance; and secondly, the auction for the current fiscal year has given rise to a fresh cause of action.
8. Let's now turn to the merits. This case should be examined with reference to two time-lines - the years 1978 to 2018 when the 1978 Ordinance applied and the current era (post-2018) which began with the enactment of the 2018 Act.
9. Section 19 of the 1978 Ordinance empowered a market committee as follows:
19. Levy of fees.--A market committee may, subject to such rules as may be made by Government in this behalf, levy fees, not exceeding the maximum rates prescribed, on the agricultural produce bought or sold by or through a dealer in the notified market area: Provided that:
(a) ...
(b)...
(c) ...
10. A bare reading of Section 19 shows that the power to levy fees was limited to agricultural produce. To be more specific, it did not authorize the market committee to impose any fee for use of parking space. The PAPM Rules, which the Provincial Government framed under Section 35 of the 1978 Ordinance, also did not contain any provision for imposition of such fee.
11. The Fruit and Vegetable Market Muzaffargarh was established in 1985 and Respondent No. 1 framed its Bye-laws in terms of Section 36 of the Ordinance in 2009. Clause 14(2) of the Bye-laws provided that Respondent No. 1 shall charge vehicles, cycles and motorcycles etc. parking fee at the approved rates. It also empowered Respondent No. 1 to auction its fee collection rights. Albeit the Bye-laws were approved by the Provincial Government, the learned counsel for the Petitioners has rightly contended that Clause 14(2) was ultra vires of the Act. In Khawaja Ahmad Hassan v.
Government of Punjab and others (2005 SCMR 186) the Hon'ble Supreme Court of Pakistan held: "It is a well-recognized principle of interpretation of statutes that if the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to."
12. Similarly, in Zarai Taraqiati Bank Limited and others v. Said Rehman and others (2013 SCMR 642) the apex Court ruled: "The 'rules' and 'regulations' framed under any Act are meant to regulate and limit the statutory authority. All statutory authorities or bodies derive their powers from statutes which create them and from the rules or regulations framed thereunder. Any order passed or action taken which is in derogation or in excess of their powers can be assailed as ultra vires. Rules and regulations being forms of subordinate legislation do not have substantial difference as power to frame them is rooted in the statute. Statutory bodies are invariably authorized under the Act to make or adopt rules and regulations not inconsistent with the Act, with respect to such matters which fall within their lawful domain to carry out the purposes of the Act."
13. In Suo Moto Case No. 11 of 2011 reported as PLD 2014 SC 389, the august Supreme Court held: "Rule-making body cannot frame rules in conflict with, or in derogation of the substantive provisions of the law or statute, under which the rules are framed. Rules cannot go beyond the scope of the Act. Thus, we are inclined to hold that no rule can be made which is inconsistent with the parent statute, whereas, no regulation can be framed which is inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of such inconsistency with the parent statute or the rules shall be void and inoperative."
14. There are a catena of cases in which the courts declared the levy imposed by subordinate legislation unlawful because it was beyond the scope of the charging section in the parent Act.
Reference may be made to Treet Corporation Limited v. Government of Pakistan through its Secretary, Ministry of Industries, Islamabad and 2 others (PLD 1992 Karachi 427) for illustration. In that case the law, Pakistan Standard Institution (Certification Marks) Ordinance, 1961, did not contain any specific provision under which marking fee could be levied but the Federal Government imposed it through the Regulations made under Section 22 of that Ordinance. The Sindh High Court held that the Government could not confer such power on it through the Regulations as the parent statute did not give that mandate.
15. In view of the foregoing, the charging and collection of parking fee during the first period was illegal. The learned counsel for the Petitioners contends that Respondent No. 1 must return the money to the people as it has unjustly enriched itself at their expense. He has relied on the following excerpt from Sui Northern Gas Pipelines v. Deputy Commissioner Inland Revenue and others (2014 PTD 1939) in support of his submission: "The American Restatement of the Law of Restitution: Quasi Contracts and Constructive Trusts, (1937), states the principle of unjust enrichment in the following simple terms: 'A person who has been unjustly enriched at the expense of another is required to make restitution to the other.' And, one of the leading Commonwealth texts on restitution elaborates on the notion as follows: The principle of unjust enrichment] presupposes three things. First, the defendant must have been enriched by the receipt of a benefit. Secondly, that benefit must have been gained at the plaintiffs expense. Thirdly, it would be unjust to allow the defendant to retain that benefit...' 'Unjust enrichment occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else. The doctrine of unjust enrichment, therefore, is that no person can be allowed to enrich inequitably at the expense of another. A right of recovery under the doctrine of "unjust enrichment" arises where retention of a benefit is considered contrary to justice or against equity.13 Reliance with advantage is also placed on Messrs Pfizer Laboratories Limited v. Federation of Pakistan and others (PLD 1998 SC 64). Unjust enrichment is, inter alia, anchored in our fundamental constitutional value of economic justice. Our constitution abhors any form of economic exploitation."[3]
16. The Petitioners have not prayed for restitution of the parking fee received by Respondent No. 1 in this petition so this Court cannot grant that relief. Nevertheless, any claim in this regard may be considered in appropriate proceedings.
17. The situation has changed with the 2018 Act. Clauses (i) and (j) of Section 15C thereof expressly empower a market committee to regulate the entry of persons and vehicular traffic into the market yard and sub-market area vesting in it and to levy, recover rates, charges, fees in respect thereof.
The Petitioners have little to refute this legal position but contend that Respondent No. 1 cannot impose and collect the parking fee unless Rules, Regulations and Bye-laws in terms of Sections 29, 30 and 30A of the 2018 Act are framed. This contention deserves a short shrift because the aforesaid provisions are self- executory. In M. U. A. Khan v. Rana M. Sultan and another (PLD 1974 SC 228) the Hon'ble Supreme Court held that a statute is not rendered inoperable on account of the failure of the designated authority to frame rules or regulations unless the legislature has expressed such intention. Relevant excerpt is reproduced below: "It is universally recognized that as regulatory statutes have to deal with a variety of situations and subjects, it is not possible for the Legislature itself to make detailed regulations concerning them, and, therefore, the Legislature delegates its power to specified or designated authorities to make such detailed regulations, consistent with the statute, for carrying out the purposes of the parent legislation. The power so conferred is generally in the nature of an enabling provision, intended to further the object of the statute, and not to obstruct and stultify the same. As a consequence, the failure or omission of the designated authority to frame the necessary rules and regulations, in exercise of the power conferred on it by the Legislature, cannot be construed as having the effect of rendering the statute nugatory and unworkable. Such an eventuality could arise only if the Legislature indicates an intention to this effect in clear and unmistakable terms."'
18. In Nestle Pakistan Ltd. and others v. Federal Board of Revenue and others 2017 PTD 686 a Division Bench of this Court held: " ... a provision is self-executing if rights granted or duties imposed are enforceable in absence of any supplementary legislation; in other words if manifest intention is found in language of the provision that power conferred should go into immediate effect and no ancillary legislation is necessary, then the provision is self-executing. The provision is not self-executing if it indicates merely a line of policy or principles, without giving means by which such policy or principles are to be carried into effect, or it is directed in the provision for framing of Rules through delegated powers to enforce the rights, duties or powers given therein."[4] Further reference in this regard may be made to Kohinoor Chemical Co. Ltd. Karachi and 2 others v. Karachi Municipal Corporation (PLD 1978 Karachi 233) and Abdullah Advertiser through Sole Proprietor and 3 others v. District Coordination Officer, District Khushab and 3 others (2017 CLC Note 140)
19. Confronted with the above situation the learned counsel for the Petitioners submitted that Respondent No. 1 had encroached public road for the parking instead of providing space from the land vesting in it. On this premise he argued that the parking fee was illegal. I am afraid, no ruling can be given on this issue as there is no evidence to substantiate the allegation.
20. In view of what has been discussed above, this petition is dismissed.
1. Published in official Gazette vide Notification No. 6/4/Dir/E & M/09 dated 17.3.2009.
2. Government of KPK and others v. Khalid Mehmood (2012 SCMR 619); AI-Hamza Ship Breaking Co. and 14 others v. Government of Pakistan through Secretary Revenue Division, Ministry of Finance, Islamabad and others (2015 SCMR 595); Hyderabad Cantonment Board v. Raj Kumar and others (2015 SCMR 1385); Treet Corporation Limited v. Government of Pakistan through its Secretary, Ministry of Industries, Islamabad and 2 others (PLD 1992 Karachi 427); and Exide Pakistan Limited v. Cantonment Board Clifton and another (2012 CLC 1124).
3. Internal citations omitted.
4. The Hon'ble Supreme Court reiterated this view in Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan, through Secretary, Establishment Division and others (PLD 1990 SC 1013).