1. The facts giving rise to this petition are that the petitioner is engaged in the business of transportation of coal from mines to different places through trucks. The respondent-Union Council has imposed a tax on coal @ Rs,5 per ton vide Notification, dated 24 December, 2001 published in the Punjab Gazette and effective from 15th September, 2001.
2. The parawise comments were called for from the respondent-Union Council. The respondent- Union Council in its parawise comments stated as under:- "The impugned service tax is not chargeable from any mine owner/ lease holder but is levied on the transport vehicles which comes within the local limits of the Union Council and used the temporary roads which connect the quarries with main road. Union Council provides the service of construction, repair and maintenance of these roads which connect quarry with main roads."
3. ' My learned brother Ali Nawaz Chowhan, J. Pas the following order on 13-2-2002;1-- "With the mutual consent of both sides and for ascertaining what services were being provided by the Union Councils Noorpur and Minara, Ch. Mehmood Akhtar, Advocate is appointed as Local Commission for local inspection. His fee shall be 8,000 to be equally shared by both sides and which will be given to him at the site. He shall submit his report on the next date and shall also hand over the copies of his report to both sides simultaneously. To come up on the 25th of February, 2002, when the Local Commission shall be here for explaining the position at the site."
4. The Local Commission has submitted his report according to which a very negligible portion of the road is being maintained by the Union Council. The road is being used by Three Star Mines. It is further stated that most of the mines are owned by Brig. (Retd.) Fateh Sher who claims to be the owner of the road and who claims to maintain the same. Keeping in view the width and the length of the road, it is not possible for the Union Council Noorpur to maintain the same.
2. Section 88(1)(b) of the Punjab Local Government Ordinance (XVIII of 2001) reads as under:- "(1) The functions of the Union Council shall be to:--
(a) ....
(b) approve rates and fees for-services specified in Part-III of the Second Schedule proposed by the Union Administration."
5. ' Part-III of the Second Schedule to the said Ordinance is reproduced as follows:-
(1) Fees for licensing of professions and vocations.
(2) Fee on sale of animals in cattle markets.
(3) Market fees.
(4) Fees for certification of births, marriages and deaths.
(5) Charges for specific services rendered by the Union Council.
6. (6), Rate for the remuneration of village and neighbourhood guards.
(7) Rate for the execution or maintenance of any work of public utility like lighting of public places, drainage, conservancy and water supply."
7. ' Mere reading of section 88(1)(b) would show that the Union Council can approve rates and fee for service specified in Part-III of the Second Schedule proposed by the Union Administration. Sub- clause (5) of Part-III reads as under:-- "Charges for specific services rendered by the Union Council"
8. In the instant case, no services are being provided by the Union Council. The respondent-Union Council has not placed on record any title document regarding the ownership of the land. No documentary evidence has been brought on the record to show that the land underneath the road was ever acquired for the Union Council or it was purchased by mutual agreement - by the respondent-Union Council. Section 88 of the Ordinance enumerates the functions of the Union.
9. Council. Under subsection (1)(0 of the same section, one of the functions of the Union Council is as under:- "mobilize the community involvement in maintenance of public ways, public streets, cui vets, bridges and public buildings, de-silting of canals and other development pursuits."
10. ' The term 'functions' covers the powers and duties under various provisions of an Act.
11. The phrase 'services' has not been defined in the Punjab Local Government Ordinance (XVIII of 2001) but 'municipal services' have been defined under section 2(xxii). Public roads are included in the definition of 'municipal services'. The Union Council cannot charge for the provision of a function which it has a duty to provide, whereas it can charge for a function which it has merely power to provide or not to provide at its discretion. See, "Mc Carthy & Stone (Developments) Ltd. v.
12. London Borough of Richmond Upon Thames" (1994 SCM R 1393). As stated above, there is nothing on the record to show that the respondent-Union Council is providing any services. In the absence of the same, no fee can be charged by it. The impugned notification issued by the Union Council and published in the Punjab Gazette, dated December 24, 2001 is ultra vires the Statute.
3. For what has been stated above, this writ petition is allowed and the impugned Notification is declared to be without lawful authority and of no legal effect. The parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.