SYED ARSHAD ALI, J. The petitioner which is a limited company has filed the instant Constitutional petition through its authorized representative praying that:- "It is, therefore, most humbly prayed that on acceptance of this writ petition this honorable Court may graciously be pleased to: i. Declare that the respondents have no authority, jurisdiction or power under the Cantonments Act, 1924 to impose the impugned advertisement/delivery publicity charges upon the petitioners and the same is therefore illegal, arbitrary, unreasonable, unlawful, without jurisdiction and void ab initio: ii. Declare that any levy/fee in relation to the impugned challan for delivery publicity charges issued by respondent No.3 and respondent No.4's impugned demand thereof are illegal, arbitrary, unreasonable, unlawful, without jurisdiction and void ab initio; iii. Declare that respondents do not have the power to impose the impugned fee on petitioner No.1 for placing its logo/trademark on the attire of its riders/delivery boys who are freelancers or on any motorcycles or food delivery vehicles used by petitioner No.1 for identification and security purpose or any logo/trademark placed on its place of business; iv. Declare that any bye law or policy made by the respondents vis-a-vis the collection of advertising/publicity charges/fee from petitioner No.1 is ultra vires the Cantonments' Act, 1924, and the Constitution; v. Restrain the respondents from demanding or collecting the so-called and illegal delivery publicity charges/fee or tax from and taking any coercive action against the petitioners or any of petitioner No.1's riders/delivery boys who are freelancers in relation to the delivery of food to consumers at their doorsteps or for placing any logo/trademarks on its place of business;"
2. The precise allegations of the petitioners can be gathered from reading of Para-5 of the petition which is reproduced as under:- "That petitioners, through their online platform, book the orders of their customers, then through their riders, who are freelancers, arrange for the food to be picked up from the restaurants and thereupon delivered to the customers at their doorsteps. It is relevant to highlight that business entities such as petitioner No.1 are merely performing their services, and in fact are not engaging in any marketing or advertising activity through their riders. However, as per petitioner No.1's company policy, which is observed in almost every Consumer service-related business, its riders who are freelancers wear a jacket and use motorcycles that bear petitioner No.1's logo/trademark.
In a similar way, private security guard companies, such as Phoenix and SMS (among others), courier companies, such as TCS, DHL and Leopard (among others), beverage and water delivery companies, such as Coca Cola Beverages, Pepsico and Nestle (among others), and almost all other fast moving consumer goods vendors, require the riders engaged in delivery to wear a jacket and also to use motorcycles or other vehicles bearing their respective logos/trademarks for consumer satisfaction and security purpose, and also to dispel any apprehensions of the consumers vis-a-vis the company, involved or its employees."
3. Notice was issued to the respondents who have filed their comments wherein in reply to Para-5 of the petition it is contended that the motorcycle riders are not freelancers, the petitioners are using internet services from whom they are earning millions of rupees. The riders wearing jacket with petitioner No.1's logo/trademark are promoting petitioners' business which is mobile advertisement of petitioner No.1 company. The comments are accompanied with CBR circular bearing No.22, dated 01.10.2015 wherein fee was proposed on moving publicity.
4. The essential question for adjudication of this Court is whether the aforesaid activities of the petitioners as stated in Para-5 of the petition while wearing a jacket bearing logo/trademark of the petitioners company can be subjected to the impost of fee by the Cantonment Board.
5. The Cantonment Board is the creation of a Statute i.e. The Cantonments Act, 1924 ("Act") and similarly Section 282 of the Act empowers the Cantonment Board to make bye-laws whereas Section 200 of the Act deals with the mandate of Cantonment Board to levy stallages, rent and fee.
For ease of reference both the provisions are reproduced as under: 282(3). Power to make bye-laws. Subject to the provisions of this Act and of the rules made thereunder, a [Board] may. in addition to any bye-laws which it is empowered, to make by any other provision of this Act, make bye-laws to provide for all or any of the following matters in the cantonment, namely:-
(3) the regulation of the collection and recovery of taxes, tolls and fees under this Act and the refund of taxes;
200. Levy of stallages, rents and fees. A [Board] may
(a) charge for the occupation or use of any stall, shop, standing, shed or pen in a public market, or public slaughter-house, or for the right to expose goods for sale in a public market, or for weighing or measuring goods sold therein, or for the right to slaughter animals in any public slaughter-house, such stallages, rents and fees as it thinks fit; or
(b) with the sanction of the [Competent Authority], farm the stallages, rents and fees leviable as aforesaid or any portion thereof for any period not exceeding one year at a time.; or
(c) put up to public auction, or with the sanction of the [Competent Authority], dispose of by private sale, the privilege of occupying or using any stall, shop, standing, shed or pen in a public market or public slaughter-house for such term and on such conditions as it thinks fit.
6. The perusal of the aforesaid provisions would clearly show that the Cantonment Board has a very limited mandate to charge fee and rent against the items which are specifically provided in Section 200 of the Act. The activities of the petitioner, as stated above, do not fall within any of the item provided in Section 200 ibid. The Apex Court in the case of "Hyderabad Cantonment Board v.
Raj Kumar and others" (2015 SCMR 1385) while dealing with somewhat similar preposition has held:- "8. Extraction of money in any form may it be a tax, cess, toll fee, charge or rate or levy by whatever nomenclature it is classified could be extracted by the government and or public authority under a valid legislative instrument by the competent legislature (one may refer to Article 70 read with Article 73(1A)(3)(a), Article 77 read with Article 141 read with Entry No.54 of the Federal Legislative List). A bare perusal of the provision of section 200 of the Act, 1924 as reproduced above, shows that it is "levy of stallages rent and fee for providing stall, shop, standing shed, pen and for other defined commercial activities on the vendors dealing in goods and for the slaughter of animals in public market or public slaughter houses' respectively and that too subject to sanction by the competent authority. Parking fee is not envisioned under the referred provision.
Cantonment Board has no authority to enlarge the scope of charging section and include, conjecture and or read some activity which is not envisioned or is not the contemplation of the charging section 200 ibid as relied upon by the learned Advocate Supreme Court for the appellant-Cantonment Board"
7. The law laid down by the Apex Court was also followed by the Lahore High Court in its judgment in the case of The Bank of Khyber through Authorized Attorneys v. Municipal Corporation Gujrat through Mayor Nasir Mehmood and 2 others (PLD 2021 Lahore 108). The relevant provision is reproduced as under:- "Section 200 of the Cantonment Act was interpreted by the august Supreme Court of Pakistan in the judgment dated 20.5.2015 passed by the august Supreme Court of Pakistan in 2015 SCMR 1385 (supra) concluded that the a bare perusal of section 200 of the Cantonment Act is limited for levying of stallages rent and fee for providing stall, shop, standing shed, pen and for other defined commercial activities on the vendors dealing in goods and for the slaughter of animals in public market or public slaughter houses respectively and that too subject to sanction by the competent authority. In the case before the august Supreme Court of Pakistan the issue was of parking fee and the Court concluded that parking fee is nor envisioned under the referred provision. Therefore the Cantonment Board has no authority to enlarge the scope of the charging section and include the subject of parking fee for the purposes of levying fee. The same section was interpreted by this Court in the Soneri Bank Case wherein it was held that the Cantonment Board has no authority to levy fee in relation to the boards installed by the petitioners at their offices/branches. The Respondents rely upon the order of this Court dated 14.3.2018 passed by a learned Division Bench of this Court in I.C.A. No.62/2015 titled Allied Bank Limited v. Province of Punjab etc. wherein the Court remanded the matter with the consent of the parties to the Board for due consideration. In the order dated 7.10.2015 passed by the august Supreme Court of Pakistan in Civil Appeal No.796/2015 titled Habib Bank Limited Islamabad v. Federation of Pakistan through Secretary Ministry of Defence, Islamabad etc. the Court referred the matter to the learned Division Bench of Lahore High Court, Rawalpindi Bench for the purposes of deciding the same along with other matters pending there. The cases were decided by the Division Bench in I.C.A. No.62/2015 wherein the Court on the basis of a consent order decided that they would not charge any advertisement fee on the board affixed on a branch and further that if the respondents intend to charge advertisement fee from the banks for reasons that its board contains advertisement material in violation of the specified shape, it can do so after passing an assessment order in writing. This case did not consider the authority of the Cantonment Board to levy advertisement fee and was decided on the basis of the statement made in the Habib Bank Case (supra) before the august Supreme Court of Pakistan. The Respondents also rely on order dated 16.3.2018 passed by this Court in No.50/2015 titled Messrs Haidri Beverages (Pvt.) Ltd. v. City District Government, Rawalpindi through D.C.O. etc. and order dated 10.11.2020 passed by this Court in I.C. No. 217/2016 titled Lahore Cantonment Board v. Allied Bank Limited etc. along with several other cases decided on the same terms. However, in this regard, it is noted that these orders are of no help to the Respondent Cantonment Board as the matter in issue essentially is with respect to the authority of the Cantonment Board to levy advertisement fee which matter has been decided by the august Supreme Court of Pakistan. Therefore the Cantonment Board has no authority to levy fee in relation to the boards installed by the Petitioners at their offices/branches and reliance on section 282 of the Cantonment Act is misconceived."
8. Thus, the position is very clear that the Cantonment Board at the relevant time had no authority to demand any levy/fee from the petitioners against their activities as mentioned in Para-5 of the petition. Resultantly, this petition is allowed and the impugned Demand and Challan are thus declared illegal and without lawful authority.