MUSHIR ALAM, J. -- Petitioner, General Secretary Bar Association, Sukkur, has impugned, through this public interest petition, the notification dated 4.3.1999 whereby toll tax on the vehicles passing over the Sukkur/Rohri Lands down Bridge (The Bridge) has been imposed and has further sought permanent injunction against the recovery of the same.
2. Brief facts forming background of this petition are that the respondent No. 1 issued a Notification No. D.DM.F.1-10/94- 95, dated 4.3.1999 whereby, with effect from first April, 1999 tolls on the vehicles as detailed in the column (1) of the table annexed to the impugned notification was levied at the rate specified against each category of the vehicle mentioned in column No. (2) of the said schedule. Consequently, leasehold rights were granted to the private contractor the respondent No 2, who has started collecting the same from the public commuting between the twin city of Sukkur and Rohri using The Bridge.
3. It is averred that similar Toll was also levied on the Kotri/Hyderabad Railway crossing but, on the protest of the inhabitants of the said twin cities such recovery and collection was banished with effect from 1st July, 1999.
4. It was urged that the twin cities with the passage of time and phenomenal increase in the population have virtually merged into one and people by and large commute frequently via Bridge.
5. It was urged by the petitioner that the imposition and ar continuation of the notification imposing Toll is illegal besides, discriminatory and in violation of Articles 25 and 26 of the Constitution of Pakistan. It was further urged that the people and inhabitants of the Sukkur/Rohri are placed in a similar position as that of Kotri and Hyderabad and since the Toll Tax imposed at Railway Crossing Kotri and Hyderabad has been done away with, as such the inhabitants of twin city of Rohri/Sukkur are also entitled for the similar treatment meted out to the people of Hyderabad and Kotri. It was further urged that serious protest were made by the people and residents of the locality but yielded no result necessitating the instant petition.
6. Respondents Nos. 1 and 2 have filed their respective comments. Learned Additional Advocate General contended that the tax is being levied strictly in accordance with law and there is no illegality in such action. We have heard the arguments and perused the record. In the comments filed by the Executive 'Engineer Highways Division Sukkur and so also the Secretary to the Government of Sindh Karachi Works Department, the respondents Nos. 1 and 2 respectively, both have almost in identical terms admitted the factual aspect of the case and were contended by stating that the tax on Kotri/Hyderabad Bridge was legal and was discontinued on the orders of competent authority. Alongwith the comments the summary for the Governor and the then Chief Minister were also placed on the record in order to demonstrate that the toll tax is' being imposed in accordance with law in fair and legal manner.
7. From the record it is evident .That originally the contract for recovery of Toll tax was auctioned against the highest bid of Rs. 28,25,000/- but subsequently the contract was cancelled apparently at the risk of the contractor and same was awarded at less then 50% of highest bid referred to above, that is for only Rs. 10,45,000/-. The record is silent as to any action taken by the Authorities for the recovery of losses from the previous successful bidder, and the difference in the earlier and latter contract price speaks for itself and needs no comments.
8. As per record produced, it appears that the responsibility to maintain the bridge rest with the Federal Government. However, despite note of dissension made by the Chief Secretary,- the Provincial Government agreed for the disbursement of Rs. 5 Millions as one time expenditure out of non-development expenditure for the maintenance and repair of the bridge.
9. Adverting to the legal aspect of the case as to levy of Toll Tax such taxes are imposed and levied under the West Pakistan Toll on Roads and Bridges Ordinance, 1962. Section 3 of the Ordinance confers powers on the Provincial Government to impose such Toll on such roads and bridges, which vest in it.
10. Section 3 of the Ordinance, 1962 reads as under: "Government may cause tolls to be levied on all persons animals, vehicles or other things using, crossing or passing over any road or bridge vesting in it or which may hereafter vest in it as such rates as may notify in the official Gazette..
Provide.
(emphasis adds)
1.1. In Para 8 of the summary to the Chief Minister it has been specifically mentioned as follows:.:- The old Railway Bridge over Indus between Rohri and Sukkur is not the property of Sindh Government therefore it will not be appropriate to provide funds for its maintenance from the provincial exchequer. This is likely to create an adverse precedent for maintaining Federal Government Property from the Provincial resources. The Federal Government should be asked to maintain the bridge and provide funds.
12. In view of the said statement of fact which reveals that the subject bridge is the property of the.
Federal Government, the right to levy Toll Tax conferred by Section 3 of the Ordinance, 1962 unto the Provincial Government are not available for imposing any Toll Tax on the federally administered and owned bridges. On this count alone the impugned notification dated 4.3.1999 suffers from lack of jurisdiction and authority and cannot be sustained.
13. Adverting to the other aspect of the case relating to the discrimination as urged by the learned counsel for the petitioner is concerned. Article 4 of the Constitution enshrined equal protection to all the citizens and Article 25 of the Constitution provides protection against discrimination. It is provided under the said article that all the persons placed in a similar situation are to be treated alike. The people of the Kotri and Hyderabad also resisted the imposition of Toll Tax on them. The inhabitants of Sukkur and Rohri are also placed in a similar situation. This fact as being admitted in Para 7 of the summary and it was so recorded by the Secretary Local Government Department that: "The local body has no direct concern with this issue. In the past somewhere in sixties Pakistan Railways used to charge nominal Toll Tax from the passengers crossing the bridge which was abolished due to the demand of the population of Rohri and Sukkur. With the increase in population and change in socio-economic environment the two town, the Sukkur and Rohri had become more or less one and at this stage it is not feasible/advisable to levy Toll Tax once again."
14. It has also come on record that the expenses for the repair and maintenance were approved and sanctioned as one time expenses as recommended, in the summary and as against the demand of five millions sum of Rs. 49,48,322/- was sanctioned and placed at the disposal of Pakistan Railways for the repair and maintenance. Apparently after disbursement of this amount the need of maintenance and repair were fully met and apparently there was no justification for raising further funds on this count. In the case reported as Muhammad Shafi v. Town Committee Degree (PLD 1999 Karachi 99). A Division Bench of this Court while examining the disparity in the schedule of the Octroi that was in vogue in other Town Committees in the vicinity of Degree. The Division Bench directed the Town Committee Degree and the Government of Sindh to revise the Octroi schedule in consonance with Rule 46 so that all the individual or group of individual or class of people' similarly situated are treated evenhandedly and fairly as ordained by the Constitution of Pakistan.
15. The principle of equality before the law with its attendant limitation applies equally to the taxation laws as well, provided it is demonstrated that the two or more persons or group of persons claiming such equality are placed in a similar situation.
16. Having express or opinion that the people of Sukkur and Rohri are placed in a similar situation as that of Hyderabad and Kotri they are justified in claiming equal treatment as guaranteed under the Constitution of Pakistan and we accordingly hold as such.
17. In view of the foregoing the petition is allowed, the levy of the Toll Tax is declared not only to be without lawful authority but also against Article 25 of the Constitution. The petition stands disposed of with no order as to costs.