1. ' Brief facts of the case are that the plaintiffs are the owners of marriage halls who carry on the business of arranging marriage parties in their premises. Their gri6ance is that the defendant No,1 through section 7, Sindh Finance Act, 1994 has levied a licence fee of ,Rs,5,000 per annum on persons engaged in running the affairs of marriage halls/lawns and hotels. Thereafter, the defendant No,1 through section 9 of Sindh Finance Act, 1995 levied a further tax on all ceremonial parties/gatherings/marriage and others @ Rs,250 per party/function on 'persons referred to in section 7 of Sindh Finance Act, 1994.
2. ' The plaintiffs contend that they have been forced to make payments of the licence fee @ Rs,5,000 while as far as Rs,250 per party as per Sindh Finance Act,. 1995 is concerned defendant No,1 has issued necessary directions to defendant No,2 to make recoveries from the plaintiffs. The plaintiffs submit that these two provisions of law referred to above whereby they have been directed to make payments of Rs,5,000 on one hand and Rs,250 on the other are illegal and violative of the Articles 18, 23, 24 and 25 of the Constitution of Pakistan. They have filed this suit and pray that these levies be declared ultra vires the Constitution and illegal and of no legal effect.
3. ' In so far as the defendants are concerned they submit that the legislation in question has been validly introduced and that the defendant No,2 has on various occasions held meetings with the plaintiffs to listen to their grievance and they say`. That the fee has been levied lawfully and submit that the Provincial Government in return provides them number of services including that of arranging far additional personnel for security reasons and for control of traffic congestion at such places. They further submit that slab of Rs,250 is to be collected from the organisers of parties and functions and as such there is no burden on the marriage halls/ lawn, owners in this regard.
4. ' At the very outset the defendants had raised preliminary objections with regard to maintainability of this suit on the grounds that the plaintiffs i,e, Marriage Halls Association had no cause of action against the defendants inasmuch as the liability of payment of the levies was not that of the association but of the marriage halls/lawns individually. The learned counsel for the plaintiff therefore filed an application being C.M.A. No,7825 of 1997 whereby they prayed that all the marriage hall lawns, the members of the plaintiff No,1 be made parties to the suit. The learned counsel for the plaintiffs contended that he had made Association as the plaintiff because it represented its members and that this was a bona fide mistake. In this connection he cited PLD 1968 Karachi 345, where a Division Bench held as follows:-- "The question whether a transposition can be ordered was considered by the Court of Appeal in England in the case of Hughes' v., The Pump House Hotel Company (.1902) 2 KB 485. It was held that where an action has through a bona fide mistake been commenced in the name of wrong person as plaintiff, the fact that the original plaintiff has' no cause of action does not take away the jurisdiction of the Court to order the substitution of another person as plaintiff." . In view of the observations of the Division Bench as above, I find that there was no merit in the objection raised by the defendants and, therefore, I allow this C.M.A. And direct the learned counsel for the plaintiffs to add all members of the Association as co-plaintiffs to the `:proceedings, which was accordingly done. Subsequently the plaintiff did add the members of the Association as co- plaintiffs.
5. ' The next preliminary objection that the learned counsel for the defendants raised was that this suit was not maiqtainable since" wires of the law were being challenged .And the appropriate forum for this was the' 'Constitutional jurisdiction of this Court In response the learned counsel, for the plaintiffs relied on the following judgment of this.- Court reported in PLD 1987 Karachi 225, where the learned Single Judge of this Court held as follows:- "In my view; challenge to any law on the ground that it is inconsistent .With the Fundamental Rights conferred by the Constitution can , validly be raised in a civil suit that is tp say that such challenge is not confined to be made only in a Constitutional petition. Article 8 of our Constitution lays down that any law, in so far as it is inconsistent with the rights conferred by Chapter I of Part II of the Constitution (i,e, Fundamental Rights) shall, to the extent of such inconsistency, be void.
6. Constitutional petitions are filed under Article 199 of the Constitution and there is nothing in Article 199 or in any other Article of the Constitution, which provides that such a challenge can only be made through a Constitutional petition. The point raised by the learned counsel for the defendants Nos.1 and 2 that the provisions relating to declaration of Reserved Zones by the Cane Commissioner and restricting sales/supply of sugarcane by the cane growers of a reserved area only to the sugar mill, for which such reserved area has been declared, therefore, in my view, can be raised in this suit."
7. I am in respectful agreement with the observations of the learned Single Judge and since in this case the plaintiffs have claimed the violation of their fundamental rights I would hold that this suit is maintainable on the original side of this Court.
8. ' The learned counsel for the plaintiffs at the very beginning stated that they would rely only on documents and would not lead any evidence. However, the learned counsel for the defendants submitted that he may lead evidence of a police officer to show as to what security arrangements are made at the site of these marriage halls/lawns. However, on the day fixed for the evidence of the police officer, the police officer did not appear and consequently, the side of the defendants was closed.
9. ' The plaintiffs have assailed section 7 of the Sindh. Finance Act. 1994 whereby a licence fee of Rs,5,000 has been levied firstly on the grounds that the levy lacks ' classification inasmuch as it treats all marriage halls/lawns owners whether small time operators or big time operators alike.
10. They contend that this is unequal treatment before law and hence violative of Article 25 of the Constitution of Pakistan. The second ground raised by them is that the levy in question is a fee but it is not accompanied by any services rendered by the defendants which is a requirement under the law. The third ground is that the levy is premature as no action has been taken by the defendant No,1 under section 7(2) of the Sindh Finance Act, 1994 inasmuch as the manner in which the licence was to be granted has not been prescribed. The fourth ground is that it is a case of double jeopardy/taxation because the Federal Government is already charging excise4uty from these marriage halls/lawns.
11. ' In so far as the levy of Rs,250 per function imposed under section 9 of the Sindh Finance Act, 1995 is concerned, the plaintiffs assails it on the ground firstly that it lacks classification and treats all marriage halls/lawns owners alike and hence it is violative of Article 25 of the Constitution. The second ground raised in this connection is that the provision is ambiguous and is contradicted by the Sindh (Ceremonial Functions and Parties) Taxation Rules, 1995 inasmuch as under the said rules the payment is to be made by the party hosting the function whereas under section 7 of the Sindh Finance Act, 1994 the payment is to be made by the marriage halls/lawns owners. The third ground relates to the intimation of the expected function being given as per the rules.
12. ' There is no dispute in so far as the said levy being a tax or fee is concerned. It is an admitted position that it is a fee. Indeed Sindh Finance Act, 1994 clearly begins with the following sentence:-- ' Whereas it is .Expedient to rationalize and enhance certain taxes duties and fees in the Province of Sindh."
13. ' Also the word fee is clearly mentioned in the impugned section of this Act. Amongst all the grounds raised by the plaintiffs with regard to section 7, Sindh Finance Act, 1994 the ground regarding classification is the most relevant, it may be appropriate to reproduce section 7 which is as under:-- "7. (1) No person engaged in running the affairs of marriage hall/ lawn, hotel, club or community hall shall allow any ceremonial parties and other gathering to be held in such premises unless he obtains a licence on payment of fee at the following. Rates:-- {{TABLE}} (1)Marriage hall or lawn and hotel, per annum. Rs,5,000 (2)Club. Rs, I ,000 per annum.
14. (3)Community Hall. Rs, 500 per annum. {{TABLE}}
(2) The licence shall be granted in the manner and on the conditions as may be prescribed."
15. ' A perusal of this section would show that this fee has been levied not only in respect of the marriage halls or lawns but also hotels, clubs and community halls. It would thus, appear that there is classification present inasmuch as such activities relating to entertainment of large parties are carried on in the aforesaid three places. Classification obviously has been resorted to on the basis that in a club or community hall only the members of such organisations would be able to hold their functions whereas in a marriage hall or lawn or hotel anybody who is willing to pay can hold the function. During the course of arguments the learned counsel for the plaintiffs emphasized the fact that there could be large marriage hall 'owners and there could be small marriage hall owners and the fact that the same fees are being charged from all of them is violative of the Article 25 of the Constitution. This to my mind is a fallacious argument inasmuch as licence fee by its very nature has to be the same for all those on whom it is sought to be levied in a particular category. If a distinction is made within the same category between large and small operators then it is bound to lead to evasion of the fee and also corruption by the-marriage hall/lawn owners inasmuch as each one of them would attempt to show themselves as a small operator. It will also in cerease administrative expense inasmuch as the defendant will then have to assess whether a marriage hall/lawn owner is a small time operator or a big time operator. Moreover, the licences are issued to regulate a trade There is no doubt that in the last few years the marriage halls and lawns have proliferated, some of them of good reputation but many with questionable credentials because at the moment it is possibly for anybody to acquire a piece of land and start using it as a marriage lawn. Such unrestrained growth of marriage halls/lawns could lead to malpractices and hence licenseing of these halls would be in the interest of public policy. It follows, therefore, that a licence fee has to be levied. Licence fee is being paid not for the amount of the money that an individual marriage halls/lawns owner is earning but only to give him the status of a marriage hail' lawn owner. I, therefore, find that in so far as this ground is concerned there is no force in the arguments of the learned counsel for the plaintiffs.
16. As far as the second ground is concerned both the learned counsel state that there ought to be a quid pro qua inasmuch as if licence fees is being charged then the defendants must also give something return In support of his contention he relied on PLD 1960 Dacca 502 and 1990 CE C 550. D It is now a settled law -that there is a difference between a tax and fee inasmuch as tax is levied as part of a common burden whereas fee is levied the cause of certain benefits that is derived by the person on whom it is levied. The concept of quid pro quo with regard to fee is, therefore, established. Indeed the concept of quid pro quo should now even be considered with regard to taxation as well in the change circumstances that prevail in the world today, since the concept of a nation State as it exited in the early 19th Century till 70's is fast dissipating. The concept now developing is that it is not only the citizen who must give to the State but the State must also give something back to him. The presumption is always there that State is doing its duty in providing security and services to the citizens but as to what is the quality of such services being given is something which ought to be looked into in the modern times. More so as to what is the effect if the quality of such services is not proportionate to the tax that the State levies on a citizen. It would, therefore seem that now departure could be made from the established principle with regard to taxation he. a taxing statute cannot be subjected to equitable construction. However, this is not the issue here and I would refrain from making any definite observation on this point.
17. ' But in so far as fees are concerned the concept of quid pro quo is well-established. What services are the defendants providing to the marriage hall/lawn owners is, therefore, something which needs to be considered. The defendants say, that they provide extra security and also police assistance to control traffic congestion and, even though they have not said so, but one may presume that they also provide necessary service for getting the area cleaned and to keep it orderly. There is no doubt that these services are indeed being provided because were it otherwise then, considering the number of people who gather in these marriage halls/lawns every evening those areas would have become. Unlivable. The services are, therefore, being provided but as to what is the quality of such services is another matter and I do not think I need to go into that question at this stage. For purpose for this case it is sufficient that the services are being provided and hence the concept of quid pro quo is being adhered to. This ground again, therefore, has no force.
18. ' As far as the third ground is concerned there is no merit in this at all inasmuch as section 7(2) only deals with the manner and the conditions for the grant of the licence and this could very well be reflected in the licence in itself and no separate act by the Government in necessary in this regard.
19. The last ground of the plaintiffs are untenable altogether. There is no relationship between the excise duty and the licence fee at all, one is a tax and the other a fee.
20. ' As far as the levy of Rs,250 per function under section 9 of Sindh Finance Act, 1995 is concerned the grounds with regard :to classification have already been discussed in connection with ok first ground in respect of section 7 of the Sindh Finance Act, 1994 and hence I need not go into it again.
21. As far as question of ambiguity vis a vis the Sindh (Ceremonial Functions and Parties) Tax Rules, 1995 is concerned, ambiguity there may or may not be but the fact remains that under these rules these levies are not payable by the marriage halls/lawns owners but by these who arrange the functions. I also do not believe that there is any discrepancy in so far as the section 7 of the Sindh Finance Act, 1994 is concerned, which requires' payment of this levy by the marriage halls/lawns owners, since the actual payment will still to be made by the marriage halls/lawns owners, it is just that it will be collected by them from the organizers of the functions much in the same way as a guest in a hotel is charged excise duty but it is in fact paid by the hotel itself. The rules are just to facilitate the collection of the levy and I see nothing illegal in this at all. In so far as the last ground regarding the intimation of holding of function is concerned this is entirely a procedural matter as per rules and this can be dealt with at the level of the Association itself through. Negotiation. I do not find that any illegality' has arisen because of that.
22. ' The result of the above discourse is that I find that there is no merit in this suit and it is accordingly dismissed.