' This judgment shall dispose of Writ Petition Nos.3942, 3924, 3946 and 3650 of 2000 as common questions of facts and law are involved therein.
2. These Constitutional petitions were filed by respective petitioners on service in each case of notice, dated 10-12-1999 directing the respective petitioners to deposit Rs,30,000 as arrears of rent from 1-7-1997 to 30-6-2000, within 7 days with Executive Engineer, Highway Division Lahore, on the basis of Notification No,S0H-111(C&W)2- 12/97-98, dated 10-9-1997 levying rent of Rs,10,000 per annum on approach roads of industrial units on Highways. In default thereof action under relevant clauses of Punjab Highway Amended Act, 1976 was threatened including physical removal from the site.
3. Learned counsel for the petitioners contends that the said notices and the Notification No, SOH- III(C&W) 2-12/97-98 dated 10-9-1997 are ultra vires the law and the Constitution of Islamic Republic of Pakistan, 1973 on the following counts:--
(a) Notification has been issued in the name of learned Governor of Punjab by Secretary C&W without stating the authority of law under which the same was issued;
(b) The memo. Titled as notification is in fact an executive order as is evident from the last but one line of the said alleged notification and the Governor of Punjab or the Secretary C&W had no authority whatsoever to issue executive orders imposing any levies/taxes/rents/impositions;
(c) The alleged notification/executive order is coram non judice as Article 127 read with Article 77 of the Constitution of the Islamic Republic of Pakistan, 1973 provides that no tax shall be levied except by or under the authority of Act of Parliament or the Provincial Assembly and as no authority under any Act of Parliament or Provincial Assembly has been conferred either on the Governor of Punjab or Secretary C&W to levy rent for the facility of approach roads built on the land belonging to Highway Department;
(d) The levy termed as rent is in fact a tax or imposition, as rent cannot be an imposition of the said nature; and
(e) No such levy/rent/tax/imposition existed or was claimed by the Highway Department at the time of providing facility of approach roads built on the land belonging to Highway Department as access road to the industrial units.
4. (earned A.A.-G. Appearing for the respondent assisted by Mr. Muhammad Anwar-ul-Haq, Deputy Secretary Finance (Legal) and Mr. Nazir Muhammad, Superintendent Highway has contrarily claimed that section 8(1) of Punjab Highway Amendment Act, 1976 confers competence on the Highway Authority to impoge and charge rent/levy/tax for the facility provided to the industrial units to build access roads on the land belonging to the Highway Department.
5. It is note worthy that by the Memo./Notification No, SOH-III(C&W)2- 12/97-98, dated 21-7-2000, previous memo/. Notification No, SOH-III(C&N),2- 12/97-98, dated 10-9-1997 levying the rent of Rs,10,000 has been withdrawn. The question relevant for decision now remains to be as to whether the Highway Authority is competent to charge rent from the date of levy i,e, 10-9-1997 to 21-7-2000, the date of withdrawal of levying notification.
(a) I have considered the arguments of the parties and also examined the record. I do not see to have any other option but to agree with the contentions raised by the learned counsel for the petitioners. The respondents have been unable to show any law, authority, sanction or competence versting in the respondents to impose rent as levied by alleged notification in question. I am afraid, above quoted section 8(1) of Punjab Highway Amended Act, 1976 does not refer to or even relate to powers of imposition of tax/rent/levy on industrial units. This section only imposes a restriction on the use of property maintained by Highway Department or Provincial property maintained by local bodies that it shall not be lawful without the consent of Highway Authority; to construct or lay out any means of access to or from the Highway: and
(b) to erect any building upon land within 220 feet from the middle of the Highway.
A bare reading of this section reveals that consent of the Highway Authority has been made mandatory to construct or lay out access to or from the Highway or to raise any building within 220 feet from the middle of the Highway but this section does not confer upon respondents any powers to impose rent, tax or levy. Power to give consent seems to be regulatory as to the size, width, length or culverts etc. For access and the building to be raised abutting the Highway. Word consent is permissive and cannot be used or enlarged to include imposition or taxing powers. The proviso to this section introduced by amendment also supports the above interpretation of the section as the proviso confers on the Government the power to reduce the extent of restriction under the abovesaid provisions of clause (b) but does not confer any power of imposition of the nature challenged in these writ petitions.
7. The learned A.A.-G. Emphasized at this stage that for the use of land of Highway Department or Provincial Government as access road, it is logical to give Highway Authority/Department power to charge rent. No legal authority thereto was cited by the learned A.A.-G. However, examination of term rent in sixth edition (contonnial edition 1891-1991) of Black's Law Dictionary gives definition of rent at page 1297 as:-- "Consideration paid for use or occupation of the property and in broader sense it is the compensation or fee paid usually periodically for the use of any rental property, land, building, equipment etc."
' This definition in essence includes contractual relationship between the parties or relationship in the nature of licence at negotiated terms as to period and consideration/compensation etc. In absence of such a contract, licence or agreement, argument of learned A.A.-G. Cannot be accepted for benefit of the respondents.
8. Furthermore, examination of notification dated 10-9-1997 shows that it was not published in the Official Gazette and was in the nature of an executive order. Such executive orders cannot possibly take place of legislative instruments, rules or notifications issued thereunder imposing any levy upon the citizens.
9. In view of the above, the present petition is accepted and the abovesaid Notification Itio.S0H- 111(C&W)2-12/97-98, dated 10-9-1997 and notice, dated 10-12-1999 issued to each respective petitioner are declared to be without lawful authority and of no legal effect. The parties are left to bear their own costs.