WIQAR AHMAD, J:-.The local councils of Khyber Pakhtunkhwa had been issuing notices for collection of advertisement fee/tax from the vehicles owned by companies statedly displaying advertisement material. In light of same, vehicle of petitioners (company) bearing registration No.CAG-2579 Suzuki Pickup containing vegetable and perishable food items, was also seized by private contractors/agent of respondent and parked it in their premises. Aggrieved from same, petitioners have approached this Court by filing instant Constitutional petition.
2. Respondents submitted their parawi se comments rebutting stance of petitioners and raising various legal and factual objections.
3. Arguments heard and record perused.
4. Perusal of record reveals that vires of the impugned advertisement fee has not been challenged in instant writ petition. Award of contract to private contractors have also not been challenged and the contractors have also not been made party in instant writ petition. This Court in the circumstances would constrain its discussion towards the prayer of petitioners in instant writ petition, which is reproduced as follows:- "that an appropriate writ may kindly be issued to the following effects: "Declaring the impugned Notice No.7 dated 04.07.2023 issued by Capital Metropolitan Government (Eastern Zoon), Peshawar; Notice NO.13 dated 07.07.2023, issued by Tehsil Municipal Administration Mathra, Peshawar; impugned Notice No.372, Book No.1364 dated 12.07.2023, issued by Tehsil Municipal Administration Mardan and confiscation of the vehicle having registration No.CAG-2579, Suzuki Pickup as illegal ab initio, having no legal sanctity in the eye of law.
Directing respondents to make/promulgate the subordinate legislation/byelaws/regulations regarding "advertisement" as enunciated under the provisions of KPK Local Government Act 2013 and its Rules of Business 2022, while disposing of the application made by the petitioner companies.
Grant of any other relief that this Hon'ble Court deems fit and appropriate in the facts and circumstances of the case may graciously be awarded."
5. The main grievance of petitioners as raised in instant writ petition was two folds i.e, that the concerned respondents have not framed any byelaws prescribing in detail the mode and mechanism for collection of advertisement fee and that confiscation of their vehicle containing fresh food stuff was also unlawful and illegal. Respondents had not specifically denied the fact regarding seizure of vehicle rather respondents No.2, 3 and 4 has annexed snaps of vehicle as annexure R II, showing line up of the vehicles together. It would itself indicate that their vehicles had been taken into custody.
6. So far as the issue of framing of byelaws are concerned, same is for the appropriate department to do but non framing of such byelaws cannot be deemed creating inability on the part of respondents in collecting the fee. The mode and mechanism of collection of fee was however not found in accordance with law, rather found to be an abuse of process of law. This Court would not comment on the propriety and legality of awarding of collection of fee to private contractors as same has not been specifically challenged and private contractors have not been made party, but the mode and mechanism of seizure of vehicle adopted by respondents was totally found to be unlawful, illegal and inappropriate. Section 45 of the Khyber Pakhtunkhwa Local Government Act 2013 (hereinafter referred to as Local Government Act) was providing powers of Local Government for collecting levies, Same is reproduced hereunder for ready reference:- "45. Collection and recovery of taxes.---(1) Failure to pay any tax and other money claimable under this Act shall be an offence.
(2) All arrears of taxes, rents and other moneys claimable by a local government under this Act shall be recoverable as arrears of land revenue.
(3) Department may empower any local government to recover arrears of taxes or any other moneys claimable by the local government under this Act by distress and sale of the movable property belonging to the person concerned or by attachment and sale of the immovable property belonging to him.
(4) Department may specify the officials or classes of officials by whom the power under sub- section (2) shall be exercised and prescribe the manner in which it shall be exercised.
7. While enacting sub section 3 of Section 45 of the Local Government Act, the legislature was conscious of the fact that said power was open to misuse and therefore same has been tried to be properly regulated. It was provided therein that the department of local government shall issue specific notification for authorization of a specific officer for specific moveable goods and only then such specified officer would be competent to seize the goods specified in the notification. Use of the word "the" before concerned and use of the word "the" before immoveable property belonging to him in above reproduced sub Section 3, was with the aim and object that the person as well as moveably property to be attached was supposed to have been specified alongwith the officer who was being authorized for the purpose. Same was the case with sub section 4 of Section 45 of the Act, where it has also been laid down that the department would specify official or classes of officials by whom the power under sub section 2 shall be exercised and would also prescribe the manner in which it shall be exercised. Legislature had provided for taking all these pains, for specifying each and every particular while authorizing subordinate officer by the department, because all these powers were prone to misuse and abuse. An interpretation to the contrary would also open up an avenue of misuse and abuse of such powers and resultantly rights of individuals and business concerns, would get abridged. Such interpretation should be avoided to be placed on parts of statute, which would carry the potential of opening the law to abuse of powers. Maxwell on the Interpretation of Statutes in twelfth edition by P.St.J.Langan has opined, on the basis of various precedents in this regard; "Enactments which confer powers are so construed as to meet all attempts to abuse them and so the Court will always be ready to inquire into the bona fides of a purported exercise of a statutory power. The modern tendency seems to be against construing statutes so as to leave the person or body upon whom a power is conferred absolutely untrammeled in the exercise of it. " discretion" said Lord Wrenbury, "does not empower a man to do what of his discretion do not what he likes but what he out. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably." In the words of Lord Macnaghten: "It is well settled that a public body invested with statutory powers... must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably".
This approach to construction has two consequences: the statutory discretion must be truly exercised, and when exercised it must be exercised reasonably."
The abovementioned powers of seizure has not been provided to be amenable to devolution (under the ibid Section of law) by the authorized officer. Authorization of specific officer by the department of Local Government was also not found available in the case in hand. Besides, the department concerned has not initiated any action yet for proceedings of any recovery from petitioner in shape of recovery of dues as arrears of land revenue and straightaway jumped to seizing their vehicles containing food stuff. The impugned actions were therefore totally divested of any legal character and same was amounting to abuse of process of law. Without commenting upon propriety or legality of levy of advertisement fee (which question may be settled in some appropriately instituted proceedings), the impugned actions of respondents regarding seizing of vehicle are declared to have been without lawful authority and resultantly null and void.
8. So far as issuance of notice to petitioners is concerned, petitioners are directed to submit reply to the notice where after the case shall be placed before competent officer who shall afford an opportunity of hearing to petitioners and thereafter pass an appropriate order. Petitioners shall then be at liberty to challenge said order in appropriate proceedings provided under the law and thereafter petitioners would also be able to file a fresh writ petition on same subject matter. Said issue is kept open while vehicles seized by respondents or their agents are ordered to be released immediately. Instant Writ Petition is partially allowed to the above stated effect.
9. Petitioners has also filed COC No.487-P12023 for initiating contempt proceedings against respondents for violating interim order dated 16.08.2023 passed by this Court, which is reproduced hereunder for ready reference; "in the meanwhile, the impugned amount shall not be recovered from the petitioners provided they execute a personal bond of the Chief Executive or any officer of the Company to the satisfaction of Additional Registrar of this Court equal to the amount asked in the impugned notice"
Perusal of record reveals that said personal bond is not available on file, meaning thereby that petitioners themselves have not complied with ibid order of this Court. Besides, there is nothing on record to suggest that respondents/contemnors have committed any violation of ibid order of this Court, therefore, instant COC is disposed of accordingly.