PLD 1992 KARACHI 427 (PLP)

NASIR ASLAM ZAHID, J.‑‑In this Constitutional. Petition, Notification dated 10‑7‑1981 issued by the Pakistan Standard Institution levying marking fee and the impugned demand of marking fee raised by respondent No.2 against the petitioner has been challenged. We have heard learned counsel for the parties.

2. The relevant law is the Pakistan Standard Institution (Certification Marks) Ordinance XLVIII of 1961, section 3(d) whereof provides as follows:‑‑ "

3. Powers and duties of Institution:‑‑The Institution may exercise such powers and perform such duties as may be asked to it by or under this Ordinance and such powers include power to; (d) levy such fees for 'the grant or renewal of any licence as may be prescribed." By Notification dated 29‑10‑1988, the petitioner Institution was brought within the purview of the aforesaid law with effect from 1‑1‑1989. Licence fee of Rs.250 was paid for the issuance of the licence but, by virtue of Notification dated 10‑7‑1981, marking fee has also been claimed by the Department from the petitioner Ca 0.25% of the value of the goods produced by the petitioner, namely, safety razor blades of various brands. The contention on behalf of the petitioner is that marking fee cannot be levied under the aforesaid law.

3. We had asked M/s. Tariq Ali and Ainuddin Khan, learned counsel for the respondents, whether 'there was any specific provision in the law (Ordinance of 1961) itself under which marking fee could be levied but the learned counsel could not refer to any such provision in the law. We have also been taken through the entire Ordinance of 1%1 by the learned counsel but did not find any provision whereunder power has been specifically conferred on the Department to levy marking fee, as has been done by the impugned Notification dated 10‑7‑1981.

4. However, Mr. Tariq Ali, learned counsel for Government of Pakistan has . drawn our attention to the word "include" in section 3 (reproduced hereinabove) with the submission that the powers given by section 3 of the Ordinance of ‑1961 are not restricted or limited and apart from the powers specifically conferred on the Institution including power to levy licence fee, other powers are also vested in the Institution to recover other types of fees including marking fee. The argument is misconceived. The power to levy any marking fee, which is in the nature of a charge must be conferred on the executive by law and unless it is specifically conferred, the citizens cannot be 1/4 burdened with any such fee.

5. Learned counsel for Government of Pakistan also referred to section 22 of the 1961 Ordinance, which confers powers on the Federal Government to make regulations. According to learned counsel, under these powers, regulations can be made for levy of marking fees. According to him, exercising such powers, regulations have been framed by the Federal Government known as "the Pakistan Standard Institution (Certification Marks) Regulations 1962" and by the impugned notification dated 10‑7‑1981 substituting Regulation 7(3), marking fee has been levied. As observed earlier, the law itself does give not any power to the Federal Government or the Institution to levy any marking fee and exercising powers available under section 22 to make Regulations, the Central Government or the Standard Institution cannot levy marking fee through a Regulation.

6. Learned counsel also referred to section 21(l) of the 1961 Ordinance. Section 21 gives the Federal Government powers to make rules but such rules arc to carry out the purposes of the Ordinance. Clause (d) to subsection (2) of section 21, relied upon by Mr. Tariq Ali, is as follows:‑‑ "Any other matter which is to be or may be, prescribed under this Ordinance" Under this provision obviously marking fee could not be levied.

7. Mr. Ainuddin Khan, learned counsel for the Pakistan Standard Institution, adopted the arguments of Mr. Tariq Ali, adding that though there is no specific provision in the 1961 Ordinance authorising the Federal Government, or the Standard Institution to levy marking fee, the said fee can be levied under the provisions of the Ordinance and the Rules and Regulations framed thereunder. Learned counsel referred to section 3(d) which has been reproduced hereinabove, We have already observed that this provision does not give power to the Federal Government or the Institution to levy marking fee as the said provision relates only to levy of fee for the grant or renewal of any licence and not for levy of the marking fee. Learned counsel then referred to rule 6 of the Pakistan Standard Institution (Certification Marks): Rules, 1902, which reads as follows:‑‑. "

6. Fees ‑‑The fees and expenses leviable in respect of the grant or renewal of a licence and in respect of all matters relevant to such licence shall be prescribed in the Regulations." This provision also refers to the fees and expenses in respect of grant or renewal of a licence and does not make any provision about marking fee. In any case, as observed earlier, by a rule, marking fee cannot be levied when the law itself does not give power to the Federal Government, to ‑ levy marking fee through rules.

8. Lastly, Mr. Ainuddin Khan referred to Regulation 7 of the Pakistan Standard Institution (Certification Marks) Regulations, 1962. This regulation makes provision about licence fee and also makes a reference to marking fees. In our view, by a regulation, marking fee could not be levied as the Ordinance itself does not give any power to the Federal Govt. to levy any marking fee through a rule or regulation.

9. As a result, this Constitutional Petition is allowed and the impugned Notification dated 10‑7‑1981 and the levy and demand of marking fee from the petitioner by respondents Nos.2 and 3 are declared to be without lawful authority and to be of no legal effect. There will be no order as to costs. A.A./T‑141/K Petition accepted