WIQAR AHMAD, J.-Through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, petitioner has prayed for following relief:- "It is therefore, humbly prayed that on acceptance of this writ petition, the respondents No.3, 4 and 5 may kindly be directed not to interfere in the legal business i.e. Vehicle Weighing Station of the petitioner situated at Basay Baba Ghar, Shalobar, Bara which comes within the territorial jurisdiction of Town Municipal Administration, Bara."
2. Facts as narrated in instant petition are that petitioner applied to respondent for issuance of NOC for the establishment of Vehicle weighing Station within the territorial jurisdiction of Tehsil Municipality of Bara, District Khyber which was granted by respondent No.2 after fulfilling all legal and codal formalities. That after getting NOC, petitioner spent almost Rs.5 crore by importing said machine and was running his business smoothly in accordance with law when respondents No. 3 & 4 through their subordinates started creating hurdles in the business of petitioner, one way or the other, despite the fact that they had got no authority to interfere in the legal business activities of petitioner. Comments were called from the respondents No. 3 and 4 which have been furnished.
Respondent No.2 i.e. TMO Khyber has also filed his comments separately.
3. On 11.1.2024, this court while ordering impleadment of Chairman National Highways Authority and Pakhtunkhwa Highways Authority in the panel of respondents, had directed learned counsel representing the parties to assist the court on the point that under which law Weight machines had been installed by the petitioners at the spot and the interim order passed in favour of petitioner on 31.8.2022 was also recalled. Today, learned counsel for the National Highways Authority, namely Mr.Sikandar Rasheed appeared but no one appeared on behalf of Pakhtunkhwa Highways Authority. Learned counsel for petitioner stated that the petitioner has instructed him to withdraw the instant petition but said request was declined due to peculiar circumstances of this case and he was directed to argue the case , particularly on the issue whether petitioner was legally entitled to compel vehicles plying on the road to utilize his weight station and pay fee thereof. He submitted in his arguments that petitioner has been authorized by TMA Bara for collection of fee and therefore same was lawful under the law. Learned counsel for the TMA also stated that TMA was authorized under the Local Government Act to collect the levy and they had outsourced same after receipt of application from petitioner for allowing him to install the weight station and do his lawful business therein. Learned counsel further argued that petitioner was lawfully conducting business on the spot. Mr.Sikandar Rashid, Advocate, representing the NHA, stated that weight stations have been installed by NHA on those roads which have been constructed by NHA or were under their control and they were responsible for its maintenance etc. He also added that NHA had itself constructed its weight stations on various national Highways. While explaining the purpose of establishing weight stations, he contended that such weight stations are established for the purpose of checking weight of vehicles so as to save roads from being damaged from overweight vehicles. He also contended that no other body has a right to either establish/operate or outsource establishment of weight station on National Highways which are under the control of National Highways Authority. Learned AAG argued that petitioner was illegally collecting money and the local police/District Administration have rightly intervened and obstructed him from collecting fee from the local people using road.
5. Arguments heard and record perused.
6. Perusal of record reveals that it was petitioner who had been instrumental in initiating the process of establishment of weight station. He had filed an application before the TMA authorities, contents of which are reproduced for ready reference:- {{IMAGE}} Thereafter, a contract has also been executed between TMA Bara through TMO of the Administration, authorizing the petitioner to install and operate said machine and receive fee from people using the road. DPO Khyber/respondent No.4 as well as Deputy Commissioner Khyber have stated in their comments that petitioner was forcefully taking money from local transporters on the main road outside the area of weight station while violating the agreement dated 1.12.2021. It was also stated that the Assistant Commissioner had himself caught agent of the petitioner on the road while extorting money from the transporter of Takhta Baig and in this respect an FIR had also been registered which has been enclosed with comments as Annexure-B. In ground-C & D of the comments, said respondents have also stated as under:- "Para-C of the ground is incorrect. The petitioner fraudulently obtained NOC from respondent NO.2 while violating law mentioned in Customs Act as well as NHA rules and without having the consent of the local Administration and Police department. Being Head of the Local Administrations it is duty and obligations of the answering respondents to stop all the illegal activities affecting the society at large. Moreover, this Hon'ble Court also directed the respondent No.3 in writ petition NO.1464-P/2011 dated 15.10.2020 to ensure that no vehicle is charged in any manner for more than what the law of land has imposed and also directed the respondent No.3 to check the activities of the Law Enforcing Agencies as well and to ensure that none of the transporters are harassed in any manner. (Copy of judgment order dated 15.10.2020 render in Writ Petition No.1464-P/2 011 is annexed as Annexure-C).
Para-d of the ground is correct to the extent of letters whereby it is requested to extend legal co- operation with the petitioner in respect of vehicle weighment station. However, it does not mean that the petitioner may allow to carry illegal business in the administrative area of District Khyber. The petitioner is intentionally, illegally and unlawfully abusing the answering respondents with the intent to allow them to get extortion of money from the vehicle running on the main High way."
7. TMO . i.e. respondent No.2 have stated in their comments that they had issued NOC for carrying business on 2.12.2021 but later on Deputy Commissioner had sent a letter regarding involvement of petitioner in illegal activities , therefore, he had wanted to cancel the NOC but petitioner obtained interim order from this court and due to same, the NOC could not be cancelled. In rest of the replies , it is also stated that TMO had issued NOC to the petitioner for carrying his legal business. TMA authorities were under misconception that installing a weight machine on road side was a business and that petitioner had a right to install such weight station and collect money from persons using the road. When learned counsel representing the TMA was asked as to whether the road has been constructed by TMA or that TMA was responsible for its maintenance, his reply was in negative. The road is under the domain of Pakhtunkhwa Highways Authority. Its construction, repair or maintenance is supposed to be conducted by the provincial government through Pakhtunkhwa Highways Authority. The TMA has nothing to do with same. In such situation, weight station, if required for checking overweight vehicles was also supposed to have been established by the Pakhtunkhwa Highways Authority itself or under authorization of the authority. If the road was getting damaged due to overweight vehicles, this was not a cause of grievance for the petitioner or even of TMA. At no point of time, Pakhtunkhwa Highways Authority had ever granted permission for the establishment of weight station to the petitioner. When Learned counsel for petitioner was confronted with this situation, he had no plausible answer but he instead produced a copy of letter of Executive Engineer Highways Division Khyber dated 26.2.2024 showing schedule of maximum weight load for various types of vehicles. Such letter is also allowed to be placed on file. Perusal of same reveals that it was just providing details of the allowable weight for different types of vehicles but also appears to have been obtained by petitioner with an effort to hide the illegalities, he had been committing. It is strange that the XEN without any authorization from the Pakhtunkhwa Highways Authority have furnished such notification on the demand of petitioner who had been found carrying illegal business by extorting money from the transporters of the area. No tax can be imposed on such vehicles except by a forum expressly authorized by a law. So far as collection of fee is concerned, there also existence of quid pro quo for collection of such fee was sine qua non. Reliance in this respect is also placed on the judgment of Honourable Supreme Court in the case of Federation of Pakistan v. Durrani Ceramics (2014 SCMR 1630) as well as judgment of Honourable Apex Court in the case of Messrs Lucky Cement Facstory Limited and others Vs The Government of N.W.F.P. through Secretary Local Government and Rural development Department, Peshawar and toehrs reported as 2013 SCMR - 1511. No services were being extended by TMA for construction or maintenance of the road. They had got no concern with weight of the vehicles. The agreement executed by them as well as NOC granted by them were totally divested of any legal authority and same are declared to be without lawful authority, null and void. Petitioner shall, however, have no claim against the respondents as he has been illegally extorting money from the people. What has been done that is to be treated as past and closed transaction and no action for recovery against petitioner or TMA on such score, may be made. The respondents shall be duty bound to protect the transporters and people of the locality from the burden of the unlawful levy.
8. Before parting with judgment, it needs to be mentioned here that in the newly merged districts, such like practices are being carried out on one pretext or the other and people are being compelled to pay money to various agents of contractors and other officials without there being any lawful tax or fee imposed in lawful exercise of authority. This appears to have been a practice continuing from the past. In the past jurisdiction of this court was not extended to the Tribal areas and same was being governed in an irregular manner of administration where people had got no mechanism for enforcement of their fundamental rights. There was no concept of accountability either. With promulgation of 25th amendment in the Constitution, tribal areas have been merged in the province of Khyber Pakhtunkhwa and same are to be governed under the constitution and law.
Past practice of collecting money from people on pickets and barricades or otherwise (even existing in the past )may not be allowed to be continued in future. In the case of National Commisson on Status of Women through Chairperson and others Vs Goernment of Pakistan through Secretary Law and Justice and others reported as PLD 2019 -- Supreme Court -- 218 ), the Honourable Supreme Court of Pakistan has held that residents of FATA could not be distinguished from rest of the Province of Khyber Pakhtunkhwa and that the people in FATA were supposed to be subjected to same legal regime after enactment of 25th constitutional amendment to which rest of the province was subject. Relevant observations given in this respect by the Honourable Supreme Court of Pakistan are also reproduced here under:- "Whether they be residents of FATA on one hand or of Peshawar or Mardan, etc, on the other, they cannot be discriminated against and any classification between them despite being residents of the same Proince, with no obvious or reasonably deducible distinction between them, will be arbitrary and against the recognized principles of natural justice and the rule of law. Thus, with the merger of FATA in the Province of KPK, by applying the ratio of Azizullah Memon's case (supra), it becomes expedient to ensure that all the residents of the Province of KPK (including the people of the erstwhile FATA) do not face any discrimination on the basis of their residential location and are accorded equal protectiuon of the law, and their right to fair trial, access to courts and due process are secured."
9. We in the circumstances, deem it imperative to circulate this judgment to all the administrative officers and police officers working in the merged districts with directions to ensure that no tax or fee is received from the people or transporters which is not having any backing of law. If any such practice is found in future to have been authorized by any officer in government service, same would amount to misconduct on his part besides constituting contempt of this court and the delinquent may accordingly be proceeded against. Registrar of this court is therefore directed to send copies of this judgment to all the administrative officers and DPOs of merged districts for Compliance.