Through this petition the petitioners challenge the vires of a notification dated 2fh September 1977 issued by Mr. Aslam Hayat, Administrator, Municipal Committee, .Hafizabad, revising the previous rate of fee at `Rs. 2 per Bus for 24 hours' to `Rs. 3.00 per route-permit for 24 hours.'
2. The petitioners are owners of Public Service Vehicles and are operating the same under route- permits granted to them by the Regional Transport Authority, Lahore, from and to Hafizabad. In the ,year 1973, respondent No. 2 had approached the Regional Transport Authority, Lahore, for its permission to construct a general bus-stand at Hafizabad. The request was allowed for construction of a `C' Class Bus-stand subject to the condition that all amenities as required by rule 256 of the Motor Vehicles Rules, 1969, shall be provided. The respondent No. 2, it is alleged, did-not construct any Bus-stand but started forcing the petitioners to take up and set down passengers at that place on payment of Bus-stand fee.
3. Earlier, vide Punjab Gazette of 2nd May 1975, the Commissioner, Lahore Division, Lahore bad issued a notification, in exercise of his powers under sections 33 and 35 of the Municipal Administration Ordinance, 1960, imposing Municipal Bus-stand Fee at the rate of Rs. 2 per bus for 24 hours for the, use of the space mentioned above. The case of the petitioners is that they had been paying the said fee for the use of the so-called Bus-stand. Respondent No. 2, on the other band, stated that the petitioners were not using the Bus-stand in order to avoid payment of the fee.
Respondent No. 2 was, therefore, obliged to issue the impugned notification dated 25th June 1977, published in the Punjab Gazette, Extraordinary Issue, dated 28th September 1977, revising the fee of Rs. 2 to R s. 3 per route-permit for 24 hours so as to see that the petitioners are made liable to pay the fee even though they do not use the stand.
4. It is contended by the learned counsel for the petitioners that the first notification dated the 19th November 1974, had been published in the Punjab Gazette dated 2nd May 1975, and as it purported to have been issued in pursuance to powers under sections 33 and 35 of the Municipal Administration Ordinance, 1960, it was ineffective and imperative for the Municipal Administration Ordinance had already been repealed on 3rd April 1975. Reference was made to section 233 read with section 1(3) of the Punjab Local Government Act, 1975.
The second notification was also assailed as being ultra wires of the powers of respondent No. 2 inasmuch as no power vested in him under Schedule It to the Local Government Act, to impose a fee or tax on a route-permit. Respondent No. 2, it is argued, could at the most levy a fee, rate or tax if the petitioners parked their buses or utilized the space and the facilities provided by the Municipal Committee.
5.. The learned counsel for the respondents relied on Province of west Pakistan v. Murree Brewery Co. Ltd. (PLD1963 SC605) and Hukamchand Mills Lid. v. The State of Madhya Pradesh and another (AIR1964SC 1329), to say that the mere mention of a wrong section in a notification does not redder the same ultra wires, illegal or ineffective. It was contended that a power did exist when the notification was actually issued and it will make no difference if the law under which it was issued had been repealed and a new law with parallel provision enforced. The learned counsel further submitted that the publication of a notification was a mere administrative act and as all the procedure going up to the issue of the notification had been followed under a valid law at the right time, the mere publication at a subsequent stage shall not entail the notification being rendered ineffective or ultra Tires.
6. The learned counsel further submitted that the second notification was in fact an independent notification. He referred to sections 138 and 139 of the Local Governments Act to say that no prior permission of Local Government or the Commissioner was needed as respondent No. 2 himself was competent to issue that notification. He also referred to section 4 of the Local Governments Act to say that as sections 33 and 34 of the Municipal Administration Ordinance, were in conflict with sections 138 and 139 of the Local Government Act, rule 6 of the old Rules to the extent of seeking approval of the Commissioner would be struck down. He also submitted that the entire procedure as laid down in the Rules for levy of taxes was followed before issuing the said notification, arid, therefore, the mere fact that the term `revised' has been mentioned in the second Notification, it did not mean that it was not an independent Notification.
7. The submissions made by the learned counsel for the parties revolve around the interpretation of the relevant provisions of the Local Governments Act. 1075, the Municipal Administration Ordinance, 1960 aid the Rules made under the latter law. As for the first Notification published on 2nd of May 1975, it is quite clear that the same had been published oil a date when the Municipal Administration Ordinance. 1960 had already been repealed by the Local Governments Act. The Notification, however, had been issued by the commissioner on 19th of November 7974. When the Municipal Administration Ordinance was still in force. The issuance of the Notification itself, therefore, is neither illegal nor ultra vires. It was therefore, a valid Notification and was saved by section 4 of the Local Government Act. The mere publication of a Notification, however, cannot be hit simply because the law had at that time been repealed. It may he mentioned here that the publication of a1 Notification only gives it an enforcibility or an operative date but has no effect on its validity. It may he like an Act which had been passed by a competent authority but was awaiting its enforcement by a Notification to be issued by an Executive Authority. The Executive Authority may thus enforce the law even at a time when the legislator is no longer there for any reason or its legislative field :Banged. Thus the Notification was quite valid having been issued by a competent authority at the relevant time and could be validly published in pursuance to the power already given 1, therefore, do not agree with the learned counsel for the petitioners that the Notification which had been validly issued on e 19th November 1974 by the Commissioner should be struck down for the simple reason that the authority which had to publish it delayed in doing so.
8. Even otherwise I am not inclined to agree with the contention of the learned counsel for the petitioners that a mere mention of a wrong source of power at the time when the Notification was being published would render it ineffective. The following observation of the Sapresn;2 Court in a similar situation in tie Murree Brewery Co.---s case referred to by the learned counsel for the respondent in para. 5 above is conclusive and, therefore, this objection of tile learned counsel for the petitioners is alto repelled : "Ordinarily when a power does exist in a public authority the reference to a wrong provision does not invalidate the exercise of that power. The rule is however subject to qualifications and will not validate every wrong reference to the source of power. It will be inapplicable to a case where the two powers that is the power that the officer purports to exercise and the power that in fact . Exists are not of the same quality or are mutually exclusive of each other . . . . ."
8-A. The Municipal Administration Ordinance in its III Schedule provides under item No. 19 "fees for the use of the benefits derived from any works of public utility maintained by a Municipal Committee ;".
Item No. 23 of the same Schedule is :- "fees for specific services rendered by a Municipal Committee ;"
The contention of the learned counsel is that none of the above 2 provisions and no other provision in the III Schedule authorises the respondent to compel the petitioners to use its space which is not an approved Bus-stand. He further submitted that as it was not an approved Bus-stand, 'the Municipal Committee could not fix any fees for it. Reference has also been made in this respect to rule 253(5) of the Motor Vehicles Rules for, that is the only provision under which the Regional Transport Authority could have levied fees but the procedure contained therein had never been followed.
9. It is stated before me by the learned 1 counsel for the petitioners that the aim of this petition is not to ask for the refund of the payment already made but only to challenge the vires of the notification as it has been issued and get the same struck off. He also prays that so long as the Municipal Committee had not constructed the Bus-stand and does not get it approved from the Regional Transport authority under rule 253 of the Rules made under the Motor Vehicles Ordinance, 1965, it should not compel the petitioners to use the same.
10. As it is admitted that it is not a Bus-stand approved under rule 253 of the Motor Vehicles Rules, the respondent cannot compel the petitioners to use that space for that purpose in view of rule 242, The learned counsel for the respondent controverted the allegations that the Bus-stand does not have all the facilities as provided by the Motor Vehicles Rules, but I need not go into that. As it is admitted that the Bus-stand has not been approved under rule 253, the respondent has no power to compel the petitioners to use it as such in view of Rule 253 (4). The respondent however can fix fees' for its voluntary use, and the facilities that may be there, by any one.) Further the objection of the petitioners could not be against the validity of the first Notification at this stage. They had acquiesced in the first Notification and bad been paying the bus-stand fee without any objection.
'Therefore, even on that score also, they could not be heard to challenge the first) Notification. This petition will, therefore, be considered against the second Notification.
11. It has been discussed above that the respondent No. 2 has itself been authorised under sections 138 and 139 of the Local Governments Act to levy taxes and fees without the intervention of Commissioner etc. Items 9, 23, 24 and 25 of Part 1V to the If Schedule to the Local Governments Act read as under :
9. Tax on all kinds of vehicles ;
23. Fees for specific service rendered .By aMunicipal Committee ;
24. Tax for the construction or maintenance of any work of public utility ; and
25. Parking fees."
None of the above provisions authorise a Municipal Committee to levy tare or fees on route- permits though the same could be on vehicles and also for use of the facilities as well as for parking. .
12. The rules made under the Municipal Administration Ordinance have also been made applicable under section 145 read with section 4 of the Local Governments Act. Section 4 on the other hand saves only such Rules as are inconsistent with the Local Governments Act. Sections 138 and 139 of the Local Governments Act, confer a power to levy tax on the Municipal Committee itself without any reference to the Commissioner or the Government. Section 145 empowers framing of rules for the purpose. The procedure as laid down for levy of a tax under the West Pakistan Municipal Committee (Imposition of Taxes) Rules, 1960, had been duly followed as is. Quite clear from the file produced by the learned counsel for the respondent.) This file was also shown to the learned counsel for the petitioners who raised no objection on the procedure adopted. Therefore, for the purpose of leving this fee the respondent did adopt the requisite procedure and no defect can be found on that score.
13. It is, therefore, quite clear that the respondent No. 2 did have the power to levy taxes and fees in accordance with the Rules made under the Municipal Administration Ordinance. It however, could do so only with regard to the objects mentioned above. There is, however, no provision authorising the respondent to levy any tax or fee on a route-permit. The explanation of the learned counsel for the respondent saying that as the petitioners were avoiding the Bus-stand fee by taking up and setting down passengers by road side and were not using the Bus-stand, the Municipal Committee was compelled to levy a fee on the route-permit, is not sufficient to authorise the respondent to levy a fee or tax which the law does not authorise it to do. This Notification is, therefore, not at all valid, as any route permit holder may be made to pay this levy even if the bus meant for that route-permit is not being operated for any reason whatever. The levy thus cannot be said to be for the use of the facilities provided by the Municipal Committee or for parking. Being a charge on a route-permit holder without the use of any of the facilities being provided by the respondent No. 2 it is direct tax on the route-permit, which is beyond the powers of the Municipal Committee. Thus the impugned Notification so far as it concerns the levy of Rs. 3 per route-permit for 24 hours is ultra vires.
14. In this view of the matter, the impugned Notification dated 28th September 1977, is declared to be ultra vires and so without lawful authority and of no legal effect. The question involved being not free from difficulty, there will. Be no order as to costs.