SYED ARSHAD ALI, J. Through the instant petition, the petitioner seeks the Constitutional jurisdiction of this Court with the following prayer: "It is, therefore, prayed that by accepting the instant writ petition, the notices issued by Respondent No.5 No. 4629 dated 04.03.2014 and No. 4659 dated 10.03.2014 and all subsequent orders/directions regarding the same subject matter may be declared illegal, without lawful authority and of no legal effects".
2. It is averred in the petition that the present petitioner is running transport business since long under proper route permits issued by Transport Departments of the Provinces of Khyber Pakhtunkhwa and Punjab for plying stage carrier from Lahore to Mingora via Mardan, Nowshera, Attock Khurd and Rawalpindi besides he has also obtained sanction for establishment of Class-D Bus Stand License at Fizagat, Swat from the competent authority. It is further averred in petition that erstwhile Municipal Committee, Mingora is demanding from him General Bus Stand Tax for his Buses/vehicle despite the fact that the Petitioner do not enjoy any facility being provided by Municipal Committee, Mingora regarding the establishment of the Bus Stand. The said demand, being without any lawful authority, illegal and unjustified. He approached Chief Municipal Officer, Municipal Committee, Mingora (Respondent No.5) for issuing directions and restraining the Respondent No.6 (Contractor, Municipal Committee, Mingora) from his illegal demand but his request was refused on the pretext that the same recovery is legally justified under the Bus Stand Bye Laws enacted in 1999. Hence, this petition.
3. When put on notice, Respondent No.5 filed his comments and contested the petition on various legal and factual grounds. It is averred in the comments that the petitioner has not obtained N.O.0 from Respondent No.5 for obtaining D-Class license, thus, the same has been issued to him without fulfillment of the Codal formalities and mandatory requirements under the Motor Vehicle Rules, 1969 ('the Rules'). He has further stated that the petitioner is bound to pay tax under the Bus Stand bylaws, 1999.
4. Learned counsel for the petitioner in support of his arguments has placed reliance on the cases of 'Messrs Lucky Cement Factory Limited and others v. The Government of N.W.F.P and others'
(2013 SCMR 1511), 'Muhammad Farooq v. Municipal Committee and others' (2015 YLR 1128, Peshawar), 'Israr Ahmad Khan v. Secretary Local Government and 04 others' (2020 YLR 197, Lahore) and an unreported judgment of this Court dated 02.04.2014 passed in W.P 236-M/2013 'Malik Muhammad Tahir Khan v. Government of Khyber Pakhtunkhwa through Secretary Local Government and Rural Development Department, Peshawar and 05 others'.
5. As against that learned counsel representing the respondents has relied upon a notification dated 27th June, 2011 and bylaws of 1999 framed by the erstwhile Municipal Committee, He has argued that Para No.12 of the said bylaws envisages that the vehicles shall pay the adda fee whether they use the Bus Stand or not. Thus, the impugned demand is legally justified.
6. Arguments heard and record of the case was perused with the able assistance of learned counsels for the parties.
7. The establishment and regulation of a Bus Stand has its genesis from the Motor Vehicle Ordinance, 1965 ("the Ordinance") and the rules made thereunder. Section 80 of the Ordinances authorizes the Government or the authority established under the Ordinance to establish a halting place with the consultation of the local authority. The said section reads as under: "80. Parking places and halting stations.----Government or any authority authorized in this behalf by Government, may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may, determine the places at which public service vehicles may stop for a longer time than is necessary for taking up and setting down of passengers."
Similarly, Chapter VIII of the Rules deals with the regulation of halting of stage carriages and contract carriage in Bus Stops etc whereas Rule 253 of the Rules deal with further classification of Bus Stand, which reads as under:
253. Notification of stands.---(1) Stands shell be classed as follows: A. --Stands, being General Stands administered by officials of Government.
B. --Stands, being General Stands entrusted for management, under arrangements made by Regional Transport Authority, to a private person or company.
C. --Stands, being Stands, administered by City District Government, a District Government, a Town Municipal Administration or a Tehsil Municipal Administration or through the agency of a contractor.
D. --Stands, or Company Stands.
(2) The Regional Transport Authority may, in consultation with the local authority having jurisdiction in the area concerned, make an order in the prescribed form (Form Stand B, Form C, and Form Stand D) permitting any place so be used as a stand and without such an order no place shall be used.
Provided that no place which is privately owned shall be notified as a Stand unless the application is made by the owner of that place.
(3) Every order made by Regional Transport Authority under the preceding sub-rule, show clearly the class of stand which is allowed to be established and shall be notified by publication in one or more newspapers circulating in the district or by such other means as the Regional Transport Authority may consider appropriate.
(4) No place where:--
(a) arrangements are made for the issue of tickets to passengers; or
(b) covered accommodation is provided for waiting passengers; or
(c) agents are stationed to marshall waiting passengers shall be used for the taking up or setting down of passengers unless it has been duly notified this rule.
(5) The Regional Transport Authority shall, from time to time, fix the fees or the maximum fees payable of every stand of Class A, B or C.
253-A. Minimum area and fee for C & D Class Stands.---(1) The Regional Transport Authority shall, before granting license of C&D Class Stands, satisfy itself that the applicant fulfills the following minimum criteria for the grant of such license:--
(a) The area of the proposed C Class Stand shall not be less than:-
(i) 32 Kanals of land in all areas of the city districts in the Punjab;
(ii) 32 Kanals of land in all areas of the Tehsil Municipal Administrations at the District Headquarters of Bahawalpur, D.G. Khan and Sargodha District.
(iii) 8-Kanals of land in all areas of the Tehsil Municipal Administrations at the District Headquarters of all other districts; and
(iv) 6 Kanals of land in all areas of all the other Tehsil Municipal Administrations in the Punjab.
(b) The area of the proposed D Class Stand shall not be less than:--
(i) 4 Kanals of land in all areas of the city districts of the Punjab;
(ii) 4 Kanals of land in all areas of the Tehsil Municipal Administrations at the District Headquarters of all other districts; and
(iii) 2 Kanals of land in all areas of all other Tehsil Municipal Administrations in the Punjab.
(c) The site plan and building plan for the C&D Class Stands shall be prepared in accordance with the uniform standardized design's prescribed by the Government in the Seventh Schedule.
(d) Land ownership documents shall be deposited with the Regional Transport Authority.
(e) In case of sanction of the C or D Class Stand the applicant shall deposit the prescribed licence fee with the Regional Transport Authority.
(f) The Regional Transport Authority shall indicate and earmark zones and the requisite number of C&D Class Stands in a particular zone, with the approval of the Government.
(g) The Regional Transport Authority may review the zoning and number of C&D Class Stands after a period of ten years with the approval of the Government.
(h) The maximum number of vehicles which can operative from the C or D Class Stands shall be determined in accordance with the following standards :--
(i) one Bus 590S5. Ft.
(ii)one Mini Bus/Coaster364 Sq. Ft.
(iii)one wagon 200 Sq. Ft.
(2) Fee for the grant of licence of the C&D Class Stands shall be as follows:-- C Class Stands:
(i) licence fee for one year in the city districts of the Punjab shall be Rs. 35,000;
(ii) licence fee for one year in the Tehsil Muncipal Administration at the Districts Headquarters of Bahawalpur, D.G. Khan, and Sargodha districts shall be Rs. 35,000;
(iii) fee for the renewal of such a licence for one year in the city districts or the Tehsil Municipal Administrations mentioned in clauses (i) and (ii) shall be Rs.15,000;
(iv) licence fee for one year in all other Tehsil Municipal Administrations at the District Headquarters shall be Rs. 30,000;
(v) fee for the renewal of such licence for one year in all other Tehsil Municipal Administrations mentioned in clause (iv) shall be Rs. 13,000;
(vi) licence fee for one year in all other Tehsil Municipal Administrations of the Punjab shall be Rs.
20,000; and
(vii) fee for the renewal of such a licence for one year in all other Tehsil Municipal Administrations of the Punjab mentioned in clause (vi) shall be Rs. 10,000.
D Class Stands:
(i) licence fee for one year in the city districts of the Punjab shall be Rs. 50,000.
(ii) licence fee for one year in the Tehsil Municipal Administrations at the District Head quarters of Bahawalpur, D.G. Khan, and Sargodha districts shall be Rs. 50,000;
(iii) fee for the renewal of such a licence for one year in the city Districts or the Tehsil Municipal Administrations mentioned in clause (i) and (ii) shall be Rs. 25,000;
(iv) licence fee for one year in all other Tehsil Municipal Administrations at the Districts Headquarters shall be Rs.35,000;
(v) fee for the renewal of such a licence for one year in all other Tehsil Municipal Administrations at the Districts Headquarters mentioned in clause (iv) shall be. 10,000;
(vi) licence fee for one year in all other Tehsil Municipal Administrations of the Punjab shall be Rs.
15,000; and
(vii) fee for the renewal of such a licence for one year in all other Tehsil Municipal Administrations of the Punjab mentioned in clause (vi) shall be Rs. 6,000.
8. The present issue relates to the establishment of Public Bus Stand by the erstwhile Municipal Committee, Mingora, Swat and the collection of adda fee against the services, which they provide to the motor vehicles/vehicles, which are parked in the said Bus Stand and originate or terminate its journey from the said Bus Stand. The authority of a Local Government to levy taxes emanates from section 42 of the Local Government Act, 2013 (the Act of 2013), which reads 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 the 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 approvals 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 whereof; 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 assessm ent thereof and suspend or abolish the levy of any tax."
Needless to mention that the word 'tax' occurring in section 42 of the Act of 2013 has a wider definition under section 2 subclause "ff' of the Act of 2013, which includes cess, fee, rate, toll or other charge leviable. Para 6 of the Third Schedule to the Act of 2013 authorizes the District Government to collect fee for specific services rendered by it.
9. Admittedly, the present petitioner has established a D-Class Bus Stand at a place mentioned in his petition pursuant to a permission granted to him by the erstwhile District Transport Authority, Swat vide letter dated 19.11.2007. The petitioner has also been issued permit by the Transport Department of the Khyber Pakhtunkhwa and the Transport Department of Government of Punjab for plying his vehicles from Mingora, Lahore, Rawalpindi, Attock, Nowshera and Mardan etc. Thus, admittedly the Respondent District Government is not providing any service to the present petitioner.
10. The main argument of the learned counsel for the respondents for collection of the said adda fee is Para No.12 of the bylaws of 1999 relating to the establishment of Municipal Committee, Mingora Bus Stand. According to these bylaws, the District Administration (erstwhile Municipal Corporation) is authorized to levy adda fee from the owner of the vehicles utilizing the services of the Bus Stand i.e. entering into the Bus Stand for the purpose of originating and termination of its journey. The said bylaw No.12 envisages that all vehicles shall pay the adda fee whether they use the Bus Stand or not. The learned counsel for the respondents has mainly emphasised on the aforesaid bylaw No.12. However, we do not tend to agree with the said submissions of learned counsel for the respondents. The close perusal of the bylaws shows that at the time of its framing there was no Bus Stand other than the one established by the erstwhile Municipal Committee and the said bylaws prohibit the establishment of other Bus Stand. Paras 3 and 17 of the bylaws of 1999 are relevant in this regard, which reads as under: "3. (a) No Motor Vehicle plying for hire within the limits of Municipal Committee Mingora stand for the purpose of picking up or alighting passengers except at such places as the Municipal Committee Mingora from time to time declare as a bus stand. No other places shall be allowed to be used a bus-stand.
(b) The Municipal Committee Mingora may arrange one or more Bus Stands in the limits of Municipal Committee Mingora and obtain such permission from the competent authority as required under Motor Vehicle Ordinance, 1965 and the rules framed thereunder.
(c) All vehicles carrying passengers shall enter the premises of Bus Stand and avail the facilities provided there on payment of described entry fee.
17. No one will be allowed to establish sub-stand outside the bus stand in the jurisdiction of the committee provided that if sufficient space or capacity is not available to meet the requirement in bus stand then, another bus stand will be established by the committee subject to the approval of the RTA."
Thus, the bylaws, do not deal with the establishment of other classes of Bus Stands more particularly Class-D Stand in terms of Rule No.253 of the Rules, which clearly envisages for establishment of a company stand issued to a private person, for which a separate fee is chargeable by the authority, established under the Rules. Hence the application and restriction imposed by the bylaws of 1999 can't be extended to the establishment of Class-D Bus-Stand.
11. The close perusal of the record shows that the fee which the District Administration is collecting known as adda fee, which indeed in a strict sense is a 'fee' and not a 'tax'. This levy in its character is an object specific i.e. providing parking facilities to vehicles in its General Bus Stand by the District Government whereas the present petitioner does not enjoy such parking facilities of the respondent District Government, thus, the element of quid pro quo is altogether absent in the case of present petitioner.
12. The august Supreme Court of Pakistan in the recent judgment passed in the cases of M/s. Khurshid Soap and Chemical Industries (Pvt.) Ltd. represented through Mr. Sheikh Muhammad Ilyas, KPK v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others (Civil Appeals Nos.1113 to 1155 of 2017 etc), has very elaborately explained the concept of quid pro quo for collection of fee. Para No.20 of the said judgment reads as under: "20. There are two kinds of fee-imposing legislative enactments which have been defined in various judicial pronouncements, both from our as well as foreign jurisdictions. One is based purely on the principle of quid pro quo i.e. a charge is payable for rendering a specific service or extending a specific privilege which the payers can avail subject to the conditions that may be attached to it. In other words, it can be called as 'fee-simplicitor'. In such an enactment there is direct and immediate correlation in absolute terms between the service that is rendered and the fee that is charged for it. The other kind of a fee-levying legislation is where Cess is imposed as a compulsory exaction in the same manner where taxes are imposed with the distinction that it is imposed for achieving a specific purpose promised in the enactment itself which when realized would bring some advantage or benefit for the payers in future. It can be described as 'purpose specific' and in many judicial pronouncements have been termed as 'Cess-fee'.
In such a form of levy, the specified purpose is pre-committed to the payers before the revenue is collected under the legislation. To quote a few examples, Cess is imposed to meet the extraordinary costs involved in providing infrastructure such as construction of dams or for importing oil or gas from abroad through pipelines or to build farm to mill roads in order to facilitate marketing of the agricultural produce or for conducting research and development in some specialized field. In such a form of levy the rule of quid pro quo does not exist in the same sense as it exists in a case where an existing service is rendered or a privilege is extended directly to the payer for a fee. What needs to be taken into consideration is whether the enactment has promised some benefit or advantage for the payers to be made available in future by utilizing the revenue, making it more akin to a fee then a pure revenue raising measure like taxes in general are imposed with no precondition attached for their spending. In a case from the Indian jurisdiction cited by one of the counsel of the appellants reported as Hinger-Rampur Coal Co. Ltd and others v. The State of Orissa (AIR 1961 SC 459) the Supreme Court of India in paragraphs 9 and 10 while discussing a fee-imposing enactment observed as follows: 'If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a condition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business, the cess is distinguishable from a tax and is described as a fee.'
13. In the present case, the District Government (erstwhile Municipal Committee) has established the Bus stand and providing certain specific service to the owners of the vehicle who park their vehicle in the said Bus Stand for originating and terminating its journey and in lieu thereof, it charges adda fee which has a direct co-relation with the services offered by the District Administration, hence this adda fee is a fee simpliciter. Hence if any owner of the vehicle has his own arrangements of parking/establishment of Class-D Bus stand which has been established in accordance with law, and the said vehicle do not use the Bus Stand of the Respondent, then the demand of District Administration for payment of said fee from the owners of Class-D Bus Stand or the vehicles is obviously without any lawful authority as the element of quid pro quo is altogether missing. In this regard reliance can be further be placed on of 'Messrs Lucky Cement Factory Limited and others v. The Government of N.W.F.P and others' (2013 SCMR 1511), 'Muhammad Faroaq v. Municipal Committee and others' (2015 YLR 1128, Peshawar), Israr Ahmad Khan v.
Secretary Local Government and 04 others' (2020 YLR 197, Lahore) and an unreported judgment of this Court dated 02.04.2014 passed in W.P 236-M/2013 'Malik Muhammad Tahir Khan v.
Government of Khyber Pakhtunkhwa through Secretary Local Government and Rural Development Department, Peshawar and 05 others'.
14. In view of the above, this petition is allowed and accordingly we declare the impugned notice as illegal.
15. As far as the issue of establishment of Bus Stand (Class-D) by the present petitioner without obtaining N.O.C. from the District Administration is concerned, the District Administration would be at liberty to take appropriate steps under the relevant provisions of law against the present petitioner, however, this would not justify the District Administration to demand or collect adda fee from the petitioner regarding his vehicles which do not use the Public General Bus Stand established by the respondent Government.