1. MRS. MAJIDA RAZVI, J.---This petition has been filed against Citizen Police Liaison Committee
(CPLC) and the Karachi Metropolitan Corporation (K.M.C.) seeking the following reliefs:
(i) Declare that the action of the respondents in declaring the Karachi Saddar as charged parking zone is illegal, unconstitutional and without lawful authority;
(ii) Declare that act of the respondents in compelling the vehicle owners to pay parking charges' and in default to clamp-lock the cars and releasing the same on payment of charges is illegal, unconstitutional and without lawful authority;
(iii) Restrain the respondents from recovering 'parking charges' or clamp-locking the cars parked in Karachi Saddar or any other area of Karachi;
(iv) Require the respondent No to show under what authority of law he claims to hold the office of 'Incharge' C.P.L.C./K.M.C. Jehangir Park, Karachi;
(v) Declare that C.P.L.C. Is not established under the authority of any law and further that it has no legal power or authority to make any law, rule or regulation for declaring any area of Karachi as parking (charged --parking zone) or recover 'parking charges' from the vehicle owner;
(vi) Costs of this application and adequate compensation may be granted to the petitioner;
(vii) Grant any other relief that Hon'ble Court deems fit'.
2. The brief facts as stated are that the petitioner, who is a practising Advocate, has his office at 412, Mehboob Chambers, Abdullah Haroon Road, Saddar, Karachi. On the relevant day he parked his car on Zaibunnisa Street where there was no "No Parking" sign but in evening when he came back he found his car clamp-locked. A leaflet which was found on the car indicated that the car was clamped on violation of charged parking rules' and later he contacted the respondent No.1 from where, after paying the parking fee of Rs.50, his car was released.
3. Mr. Rashed Akhtar Qureshi the learned counsel who is the petitioner himself, has contended that the respondents Nos.1 and 2 have no authority to charge parking fee as the same is not provided under the K.M.C. Rule framed under Sindh People's Local Government Ordinance, 1972. He further contended that under Rule 71 the K.M.C. Can only charge taxes on the vehicles but cannot charge parking fee. If the K.M.C. Want to make any rules under Rule 71 or 91 of the Sindh People's Local Government Ordinance, 1972 then it will have to publish the same to invite objections as provided under Rule 72.
4. The above contentions were resisted by Mr. Yasin Kiyani the learned counsel appearing for the respondent No.3. He submitted that under Schedule II functions of K.M.C. Have been mentioned, and under the side heading 'Street' one of the functions has been described to maintain public streets for the comfort and convenience of the public and to control traffic by formulating rules.
5. According to him section 91 authorises the K.M.C. To make by-laws for the purposes of carrying out the functions mentioned in the Ordinance. He further submitted that the by-laws, after having been framed, were notified and were sanctioned by the Government as per rules and as such the requirement of pre--publication as contested by the petitioner, was duly complied with. His next contention was that under section 71 of the Local Bodies Ordinance, the K.M.C. Is authorised to levy taxes. Schedule VII(8) indicates that these taxes or levies are for rendering services. The rules framed for parking charges are covered under this provision of "rendering services" as the K.M.C., after charging the fee, provides a secured space for the vehicle with the due guidance of the posted staff.
6. Mr. Zahid Ebrahim, the learned counsel appearing for respondents Nos.1 and 2 submitted that the respondent No.2 is a non-Governmental Organization (NG) and has been working as an agent of the X.M.C. On their project known' as "C.P.L.C./K.M.C. Charged Parking Project". According to him, the contention of the petitioner that there was no ' No Parking' sign is wrong and misleading as there are 21 ' No Parking' signs on Zaibunnisa Street and 17 ' No Parking' signs on Abdullah Haroon Road.
7. These roads have been designated as "controlled areas" for charged parking vide Notification No.D/ASVT/PKCH/208/93 dated 21-4-1993. He further submitted that to inform the public that the area is charged parking area, 28 boards have been installed and further 9 instructional boards have also been fixed giving details about charged parking project. While working on this project the C.P.L.C., as an agent of K.M.C., has provided jobs to 133 youths working as attendants out of whom 18 are disabled persons. These employees, who are posted in traffic controlled areas, guide and regulate the traffic, thus providing convenience to the public by allowing free flow of traffic.
8. According to him under the parking by-laws 'controlled areas' were notified on 21-4-1993 and 15-4- 1993.
9. We have heard the arguments of the learned counsel for the parties and perused the law referred to. Rule 71 of the Sindh People's Local Government Ordinance, 1972 provides levy of taxes. Sub-rule
(1) of Rule 71 is as under: "71. Taxes to be levied.--(1) The Corporation, a People's District Council, a People's Municipality and a People's Town Committee may with the previous sanction of Government, levy, in the prescribed manner, all or any of the taxes, rates, tolls and fees mentioned in Schedule VII: Provided that a tax, rate or toll which is either levied as a cess or a tax by Government or in addition to the Government tax, rate or toll on the same item mentioned in Schedule VII shall not be more than that levied by Government.
10. The said sub-rule refers to Schedule VII and under the said schedule sub-rule (3) deals with tax on the vehicles of all kinds while sub-rule (8) deals with fees for specific services rendered and licence/sanctions permits granted.
11. Rule 91 of the Ordinance authorises the K.M.C. To make by-laws, not inconsistent with the rules, to carry out the purposes of this Ordinance. Schedule II describes the functions of the K.M.C. And under the same Schedule sub-rule (5)(c) describes the functions of K.M.C., among others, to levy and collection of Octroi, Vehicle Tax and such other taxes, sates, fees and charges which may be necessary for the performance of Metropolitan functions and services as specified in Schedule VII.
12. Rule 92 makes it incumbent that all by-laws shall be made subject to the condition of previous publication and subject to the sanction of the Government. Here it will be relevant to mention Rule 72(1) which reads as under: "72. Notification and enforcement of taxes.---(1) All taxes, rates, tolls and fees levied by a Council shall be notified in the prescribed manner and shall, unless otherwise directed by Government, be subject to previous publication."
13. This Rule clearly indicates that the Government has the power to notify and make rules effective otherwise than in the manner prescribed under Rule 92.
14. The petitioner's only objection seems to be that the by-laws so framed by the K.M.C. Were not published as contemplated under section 92. In this respect we may point out that the by-laws were published in (akhbar baldiya karachi ) dated 20-1-1976, prior to the sanction granted by the Government and thereafter sanctioned and made effective. As such, the by-laws were published as per Rules. We have further noted that 'Controlled Areas' were notified under Notification dated 21-4-1993. Another Notification dated 18-4-1993 was issued approving the C.P.L.C./K.M.C. Charged Parking Project and appointing the respondent No.2 as its agent. The fee so fixed for parking of vehicles was also notified under Notification dated 15-4-1993. The contentions of respondents Nos. 1 and 2 in regard to installation of proper ' No Parking' signs and instructional boards were not denied by the petitioner. It was under these considerations that the petition was dismissed in limine by a short order dated 24-1-1996.