' MUHAMMAD AZAM KHAN, J.---In the following petitions under Article 1.99 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have questioned the legality and authenticity of Notification No,SOFT-1(FFD)/V-105/70, dated 23-8-1995, issued by respondent No,1, in connection with the enhancement of production duty claimed from the petitioners on timber brought by them from the Northern area to the Province of N.-W.F.P.:--
(1) W.P. No, 1172 of 1995, Haji Khaista Gul v. Government of N.-W.F.P. And others
(2) W.P. No,232 of 1996, Karim Bakhsh through Legal Heirs v. Government of N.-W.F.P. And others.
(3) W.P. No,1745 of 1997 Haji Karim Bakhsh v. Government of N.-W.F.P. And others.
(4) W.P. No,1746 of 1997 Khaista Gul v. Government of N.-W.F.P. And others.
(5) W.P. No,1748 of 1997, Haji Shahyar and others v. Government of N.-W.F.P. And others.
' As common question of law and fact is involved in the aforesaid petitions, therefore, we propose, to dispose of all the writ petitions by this single judgment and take up W.P. No,1172 of 1995 for discussion.
2. The petitioners claimed that they are forest lessees and were dealing in timber business which were brought from Northern Areas after payment of various local taxes and charges to the Province of N.-W.F.P. Through the entry route and forest check post at Dassu which is situated in Hazara Division, whereafter it is carried to the timber market at Dargai. The petitioners claimed that previously the respondents used to charge the production duty from them at Dassu' at the rate of Rs.7 Cft. But vide the impugned Notification the siad duty has been enhanced to Rs.14 Cft., therefore, the levy of the production duty on timber which is not produced in the N.-W.F.P., is not within the competence of the Provincial Government, hence it was illegal, without lawful authority arid of no legal effect. Further, claimed discrimination as timber into the province from Azad Kashmir were not overburdened with the aforesaid duty.
3. We have heard Mr. M. Zahoorul Hag, Bar-at-law for the petitioners and Mr. Imtiaz Ali, Additional Advocate- General and have gone through the record of the case.
4. The learned counsel for the petitioners contended in support of the grounds taken up by him in the petitions that under section 39 of the Forest Act, 1927 the Central Government has to levy duty on timber and other forest produced. Besides Article 77 of the Constitution of Pakistan also lays down the following:-- "No tax shall be levied for the purposes of Federation in except by or under the authority of Act of Majlis-e-Shoora."
' This Article is also in consonance with Article 127 of the Constitution which is equally applicable to the Provincial Assembly.
' The learned counsel argued that Part-I of the IVth Schedule of the Constitution emirates different items in the Federal list and according to item 49 (ibid), taxes on the sales and purchases of goods imported, exported produced, manufactured or consumed can be imposed only by the Parliament and the Provincial legislature.
5. Confronted with the aforesaid contentions the learned Additional Advocate-General, however, contended that the Provincial Government had the powers to impose the duty on timber, brought by the petitioner from the Northern Areas, before entering the territorial limits of the North-West Frontier Province under sections 28 and 29 of the Hazara Forest Act, 1936 which is reproduced as follows:-
(28) Power to impose duty on timber. --The local Government, may direct the levy of duty in such manner, at such places and at such rates advaloram or otherwise, as it may prescribe by Notification in the official Gazette, on all timber produced in the Hazara District or brought into that district from beyond the Frontier or elsewhere.
(29) Power of Local Government to issue rule for floating timber and levying fee. --The Local Government may make rules to regulates:--
(a) the import of timber of any forest-produced into the Hazara District;
(b) the transport of timber and any forest-produced by land or by rivers and streams within the district, the custody thereof during transit, and the levy of fees in respect of timber of any forest- produced transported;
(c) the collection and disposal of waif and unowned timber of any forest-produce; and
(d) the use of property marks for timber and the registration of such marks.
' And may prescribe as penalty for the infringement of such rules imprisonment which may extend to six months, or fine which may extend to five hundred rupees, or both, and by these rules make provision for the appearance of the woman offender on the lines of the proviso to sub-clauase (1) of section 9.
6. The learned Additional Advocate-General further contended that the petitioners were already paying the production rate of Rs.7 Cft. Ever since 1994 at the forest entry check post at Dassu and that they had never challenged this duty before. Now that the respondents had enhanced this duty to Rs.14 Cft. And recently further enhanced to Rs.20 Cft. Vide Notification annexure 'J' available on the file, therefore, the petitioners were estopped by their conduct to substantiate their claim.
7. In our view the levy of production duty on timber at Dassu the entry point of timber in Hazara Division attracts the ingredients of sections 28 and 29 of the Hazara Forest Act, 1936, which Act is still in field and is in operation. Therefore, it is within the powers of the Provincial Government to ask for the payment of production duty in accordance with the requirements of the province in the public interest/purpose.
8. Besides this tax if recoverable from the consumers and the petitioners, therefore, cannot be termed as aggrieved persons. The argument of the learned counsel for the petitioners, on the face of it, seems to be misconceived. Besides no case for discrimination has also been made out by the petitioners on the strength of the present record.
' In view of what has been discussed above we find that all the aforementioned writ petitions have no merit and the same are dismissed with costs alongwith C.Ms.