SHAMS MEHMOOD MIRZA, J. This order shall decide the present writ petition as well as connected writ petitions, the details of which are given in Schedule "A" hereto on account of similarity of challenge made to the notices issued by the Parks and Horticulture Authority (PHA).
2. The notices issued by the PHA directed the petitioners to pay advertisement fee pursuant to section 12(8) of the Parks and Horticulture Act, 2012 (the Act). In some of the petitions the action of the PHA to hire private contractors for collection of advertisement fee has also been called into question.
3. The writ petitions have mostly been filed by Financial Institutions or companies established under Companies Ordinance, 1984. The petitioners allege that the PHA has issued notices to them for payment of advertisement fee for the signboards installed in their respective branches/regional offices. The financial institutions argue that in terms of the provisions contained in section 22(a) of the Companies Act, 2017 (the Companies Act) they are required to display their signboards outside their registered offices and every office or place in which the banking business is carried on. They furthermore place reliance on BPRD Circular No.207 dated 12.10.2007 issued by the State Bank of Pakistan which requires every bank to prominently display its name on a signboard outside the place of business. They also rely on judgment of this Court rendered in the case of Soneri Bank Limited v. Province of Punjab and others PLJ 2020 Lahore 239 in support of their contentions that they are not liable to pay the advertisement fee in respect of the signboards installed/erected pursuant to provisions of the Companies Act or the directives of the State Bank of Pakistan. The petitioners also plead that Article 142 of the Constitution vests in Parliament the exclusive power to make laws in respect to any matter in the Federal Legislative List. A Provincial Assembly can only make laws in respect of matters not enumerated in the Federal Legislative List. They referred to entries 28, 48, 54 and 59 of the Fourth Schedule which deal with the banking and conduct of banking business by corporations and the taxes and fees leviable on them to contend that advertisement fee cannot be made applicable to the petitioners under any circumstances.
4. The parawise comments have been filed by the PHA wherein it is submitted that the banks are advertising various products through the signboards on which fee is liable to be paid. The PHA also places reliance on PHA Outdoor Advertisement Regulations, 2017 (Regulations) to submit that exemption to signboards is only available up to the size of 30 square feet, and that any signboard that breaches the limit prescribed by the Regulations is liable for advertisement fee.
5. There are two aspects of the matter that arise out of the contentions of the parties. One relates to the signboards that display the names of the banks/companies on their regional/head offices and their branches. The other matter concerns the alleged advertisement carried out by the banks/companies of their products.
6. The judgment in the case of Soneri Bank on which the petitioners place reliance on answered the crucial question in negative whether the signboards installed by the Financial Institutions and the other petitioners in terms of the requirements imposed by the Companies Act and BPRD Circular of the State Bank of Pakistan come within the definition of advertisement and billboard. It was held in the said judgment that "It is settled law that circulars of State Bank of Pakistan have the status of law (see Government of Pakistan and others v. Messrs Hashwani Hotel Limited PLD 1990 SC 68). The Banks are thus bound to comply with the above provisions.......The afore-mentioned provisions demonstrate in no uncertain terms the obligation of the Banks to prominently display their name in a conspicuous place of business, their head offices, branches etc." This is accepted by the learned counsel for the PHA.
7. In regard to the levy of advertisement fee on the signboards, this Court in Soneri Bank held as follows:-
16. Section 12(8) of the PHA Act is the charging provision. A bare reading thereof reflects that it authorizes the Authority to collect "fee" for the grant of permission for installation of a billboard, sky sign or outdoor advertisement. Section 12(1) stipulates that a person intending to install an outdoor advertisement on a private or public property or public park, green belt or green area shall make an application in the prescribed manner to the Authority. Now as far the outdoor advertisement in a "public park, green belt or green area" is concerned, the Authority can collect fee as the same are under its control by the terms of the PHA Act and thus some type of service is being provided by the Authority. The same cannot, however, be said for private buildings over which the Authority has no control and any installation of outdoor advertisement therein or thereon would not involve the element of providing service of any kind on its part. It is settled law that an authority can only charge and levy fee as compensation for corresponding service performed or rendered. If the object and purpose of the fee is simply to generate revenue for the authority and the amount of fee has no relation to the service or value thereof, it will amount to a tax. A statute which imposes a tax has to necessarily provide the event of taxation and also the rate thereof. Both of these necessary constituents are missing from the PHA Act. In the case of Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources and another v. Durrani Ceramics and others 2014 SCMR 1630, the Hon'ble Supreme Court differentiated between tax and fee by making the following observations: Whereas 'tax' is a common burden for raising revenue and upon collection becomes part of public revenue of the State, 'fee' is exacted for a specific purpose and for rendering services or providing privilege to particular individuals or a class or a community or a specific area. However, the benefit so accrued may not be measureable in exactitude. So long as the levy is to the advantage of the payers, consequential benefit to the community at large would not render the levy a 'tax'.
Similarly, this Court in the case of East Pakistan Chrome Tannery (Pvt.) Limited v. Federation of Pakistan and others 2011 PTD 2643 while taking into account a plethora of judgments concluded that fee is collected for a specific beneficial purpose for the advantage of a particular class or sector or group of individuals who have paid or contributed towards the Fee. In determining whether a particular levy is fee the essential purpose of levy must be kept in mind which ought to be to render specific services to a specified area. It was held that there must be a relationship between the levy of fee and services rendered.
17. In view of the settled position of law, the Authority which does not provide any service to the Banks/petitioners cannot levy, charge and recover fee from them in respect of the outdoor advertisement that is installed and affixed on the premises of their branches or other offices.
8. The judgment in Soneri Bank and others answers the question that a signboard/billboard not installed on a property under the control of PHA cannot be made subject to the levy of advertisement fee. In so far as the size of the signboards is concerned, the respondents rely on Regulation 13 which stipulates the size of the signboard the banks/companies must install at their branches/offices. The PHA argues that this Court in Writ Petition No.129536 of 2018 titled The Bank of Khyber v. Municipal Corporation Gujrat (PLD 2021 Lahore 108) has already declared Regulation 13 to be a valid instrument for regulating the size of the signboards. The stance of the PHA overlooks the basic premise on which the judgment in Soneri Bank was rendered by declaring that advertisement fee cannot be charged on the signboards installed at the Head Offices/Regional Offices/Branches of Financial Institutions/Banks/Body corporate as these signboards are installed in terms of the direction given by section 27(a) of the Companies Act and the directives of State Bank of Pakistan. Even otherwise, the advertisement fee can only be charged for installation of a billboard, sky sign or outdoor advertisement in terms of section 12(8) of the Act. These three expressions are defined in section 2 of the Act. The signboards displaying the name of the banks/companies on their offices do not come within the definition of these expressions.
9. The underlying premise of the declaration in Soneri Bank was that the petitioners are regulated by a Federal Act whereas the Act is a provincial statute. The Companies Act and the directives of State Bank of Pakistan while mandatorily requiring the banks to display their name on their buildings did not prescribe any limit on the size of the signboard. The Act and the Regulations made thereunder cannot alter or impair the subject on which federal laws are in the field. In so far as Regulation 13 does that it must yield to the Federal law particularly when the Companies Act and the Circulars of State Bank of Pakistan are clearly intended to completely, conclusively and exhaustively deal with the subject matter of die signboards of banks/companies. Such an intention, which was not even disputed in the judgment rendered in Writ Petition No.129536 of 2018 titled The Bank of Khyber v. Municipal Corporation Gujrat (PLD 2021 Lahore 108), leaves no room for operation of Regulation 13 in dealing with the subject matter of signboards in any manner whatsoever. In such circumstances, there can also be no question that the Regulations were ever intended to occupy the field concurrently along with the Companies Act and the Circulars of State Bank of Pakistan. It is a settled proposition that in case of conflict between a federal law and a provincial law on the same subject, the federal law shall override the provincial law or the part of the provincial law that is inconsistent with it. The judgment in Soneri Bank was rendered prior to the judgment in Bank of Khyber in which this aspect of the matter was not considered. In this view of the matter, this Court will follow the ratio laid down in Soneri Bank.
10. The other aspect relating to the notices impugned by the petitioners has also merits attention.
The notices delivered to the petitioners by the PHA in each case have been perused which do not contain specific particulars regarding the nature of the product being advertised, and the date, time and place it was installed/erected. These generic notices are vague and simply mention the various categories of outdoor advertisements directing the petitioners to pay the fee.
11. This Court in Writ Petition No.208309 of 2018 titled "Meezan Bank Limited and others v. The Province of Punjab and others" by placing reliance on the cases of Ameer Nawaz Khan Niazi and another v. Member Board of Revenue Punjab, Lahore and others 2015 CLC 439 and Commissioner Inland Revenue v. MCB Bank, Limited 2021 SCMR 1325 Issued directions to the Local Government on the following terms:
10. In view of the law laid down in the aforementioned judgments, it is apparent that the notices under challenge in all the writ petitions are invalid for not specifying the necessary information/particulars. These notices are, therefore, liable to be struck down on this sole ground. It may be stated that the notices in question have been struck down on a narrow ground and, therefore, decision on the ocher grounds taken by the petitioners is not being rendered. The petitioners shall, however, be at liberty to agitate the same in a future case in case the need so arises.
11. The respondent Local Governments are accordingly directed to ensure that any notice issued to a Financial Institutions/Banks/body corporate demanding payment of advertisement tax must contain the necessary particulars/ information regarding the location of the advertisement, nature of advertisement and the date on which the advertisement was found to have been affixed/installed. The respondents must also utilize the modern technology for taking the picture of the advertisement for affixing it on the notice. These particulars in the notices will fulfill the requirements of due process to be followed by the Local Governments. The aforementioned details in the notice shall inform the Financial Institutions banks/body corporates regarding the precise allegation against them for payment of advertisement tax enabling them to respond to the same if they controvert the contents of the notice.
12. The aforementioned observations and directions apply equally to the notices impugned in the present petitions which can be decided on this short point. The PHA is thus required to issue notices to the petitioners afresh adhering to the criteria mentioned by this Court in paragraph 11 of the judgment rendered in Writ Petition No.208309 of 2018 titled "Meezan Bank Limited and others v.
The Province of Punjab and others". The due process requirements shall be fulfilled after it affords an opportunity to the banks/body corporates established under Companies Act to respond to such notices by taking any and all objections available to them for impugning the levy of advertisement fee.
13. As the present petitions can he decided on a short point, this Court is not making any determination on the applicability of Article 142 of the Constitution to the levy of advertisement fee on the petitioners or the issue of appointment of contractors by the PHA for collection of advertisement fee. In case any petitioner is aggrieved by the action of the PHA in charging advertisement fee in future it can approach this Court when a challenge on the levy of Vie advertisement fee shall be determined with regard to Article 142 of the Constitutions read with entries in the Fourth Schedule of the Constitution.
14. In the circumstances, this writ petition and the connected writ petitions are allowed and notices impugned in all the writ petitions are set aside. PHA is directed to issue notices in future in terms of the directions given by this Court in Writ Petition No.208309 of 2018 titled "Meezan Bank Limited and others v. The Province of Punjab and others".
SCHEDULE 'A'
IN W.P. No.366 of 2022: Dated 20-10-2023 Sr.
Nos.Writ Petition Nos.Title
1. 60784 of 2021 NRSP Microfinance Bank Limited v. Government of Punjab and others
2. 56061 of 2022M/s Outfitters Store (Pvt.) Limited v. Province of Punjab and others
3. 21886 of 2022HBL Limited v. Government of Punjab and others
4. 22755 of 2022HBL Limited v. The Government of Punjab and others
5. 16705 of 2022 NRSP Microfinance Bank Limited v. The Province of Punjab and others.
6. 34304 of 2019TCS (Pvt.) v. Government of the Punjab and others
7. 64348 of 2021Mahar Sharafat Ali v. Province of Punjab and others
8. 28552 of 2022Muhammad Namoos Arif v. Province of Punjab and others
9. 25050 of 2022Abdul Sattar v. Province of Punjab and others
10. 24515 of 2022 NRSP Microfinance Bank Limited v. Government of Punjab and others
11. 8995 of 2022 Meezan Bank Limited v. Province of Punjab and others
12. 58394 of 2021 The First Microfinance Bank Limited v. Province of Punjab and others
13. 62923 of 2021Waqas Kamuka CEO M/s Kreations Digital Marketing v. Province of Punjab and others
14. 40071 of 2022M/s Total Parco Pakistan Limited v. Province of Punjab and others
15. 26425 of 2022 Rai Asif Raza v. Province of Punjab and others
16. 5536 of 2021 Meezan Bank Limited v. Province of Punjab and others
17. 8080 of 2016 Allied Bank Limited v. Government of Punjab and others
18. 32901 of 2020 Dubai Islamic Bank (Pvt.) Limited v. Government of Punjab and others
19. 27784 of 2023 M/s Outfitters Store (Pvt.) Limited v. Province of Punjab and others
20. 12304 of 2023M/s Outfitters Store (Pvt.) Limited v. Province of Punjab and others
21. 27533 of 2023 M/s Punjab Beverage Co. (Pvt.) Limited v. Province of Punjab and others
22. 17224 of 2020TCS (Pvt.) Limited v. Government of Punjab and others
23. 34204 of 2023M/s TCS (Pvt.) Limited v. Government of the Punjab and others
24. 40530 of 2023 M/s Outfitters Store (Pvt.) Limited v. Province of Punjab and others
25. 40569 of 2023M/s Total Parco Pakistan Limited v. Province of Punjab and others
26. 34303 of 2019TCS (Pvt.) Limited v. Government of Punjab and others
27. 36182 of 2019TCS (Pvt.) Limited v. Government of Punjab and others
28. 4675 of 2021 NRSP Micro Finance Bank Limited v. Government of Punjab and others
29. 33456 of 2020M/s Trade Marketing and others v. Province of Punjab and others
30. 20222 of 2023M/s TCS (Pvt.) Limited v. Government of Punjab and others
31. 65261 of 2023 M/s Delivery Hero Pakistan Limited v. Province of Punjab and others
32. 52661 of 2023NRSP Microfinance Bank Limited v. Province of Punjab and others
33. 51800 of 2023M/s Outfitters Store (Pvt.) Limited v. Province of Punjab and others
34. 48715 of 2022 Telenor Micro Finance Bank Limited v. Government of Punjab and others
35. 1599 of 2016Allied Bank Limited v. Government of Punjab and others
36. 30536 of 2021Meezan Bank Limited v. Province of Punjab and others
37. 48455 of 2022Meezan Bank Limited v. Province of Punjab and others 38.1881 of 2021 Mobilink Microfinance Bank Limited v. Government of Punjab and others
39. 22719 of 2021 Meezan Bank Limited v. Province of Punjab and others
40. 24634 of 2021Meezan Bank Limited v. Province of Punjab and others
41. 31310 of 2022Faysal Bank Limited v. Government of Punjab and others
42. 28864 of 2021 Meezan Bank Limited v. Government of Punjab and others
43. 19400 of 2021 Faysal Bank Limited v. Government of Punjab and others
44. 35919 of 2021 Meezan Bank Limited v. Province of Punjab and others
45. 34969 of 2022 Meezan Bank Limited v. Province of Punjab and others
46. 48798 of 2021M/s Gam Corporation (Pvt.) Limited v. Province of Punjab and others
47. 41185 of 2021 NRSP Microfinance Bank Limited v. Province of Punjab and others
48. 65585 of 2020 Muhammad Younas v. Province of Punjab and others
49. 45285 of 2021 TCS (Pvt.) Limited v. Government of Punjabi and others
50. 75280 of 2022 Muhammad Zaka Ullah v. Government of Punjab and others
51. 48563 of 2022Meezan Bank Limited v. Province of Punjab and others
52. 67386 of 2021 Out of Home Advertising Association Company v. Province of Punjab and others
53. 76002 of 2021Attock Petroleum Limited v. Government of Punjab and others
54. 72135 of 2021Faysal Bank Limited v. Government of Punjab and others 55.67304 of 2021 Mobilink Microfinance Bank Limited v. Province of Punjab and others
56. 33403 of 2022Muhammad Naeem v. Province of Punjab and others
57. 34979 of 2022Meezan Bank Limited v. Province of Punjab and others
58. 48733 of 2021 Faysal Bank Limited v. Government of Punjab and others
59. 47243 of 2021Trade Marketing and others v. Province of Punjab and others
60. 47699 of 2021Bank Al-Habib Limited v. Government of the Punjab and others
61. 62987 of 2021 Habib Bank Limited v. Government of Punjab and others
62. 40530 of 2023 M/s Outfitters Store (Pvt.) Limited v. Province of Punjab and others Criminal Original Cases:
63. 52719 of 2022 Meezan bank Limited v. Sajjad Ahmad and others
64. 8972 of 2022 Meezan Bank Limited v. Syed Shafqat Raza and others
65. 74982 of 2021M/s Gam Corporation (Pvt.) v. Asima Ijaz Cheema and others
66. 76877 of 2021Trade Marketing (Pvt.) Limited v. Asma Ijaz and others
67. 30097 of 2023Muhammad Zaka Ullah v. Zahid Pervaiz Waraich and others 68.18140 of 2023 Meezan Bank Limited v. Asima Ejaz Cheema and others
69. 18124 of 2023Meezan Bank Limited v. Asif Rauf Khan and others
70. 53313 of 2022MCB Bank Limited v. DG PHA and others
71. 46878 of 2020 M/s Trade Marketing v. Nadeem Mahbub and others