2002 PLP 1299 (YLR)

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. " 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) 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. " 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" 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 Council. Under subsection (1)(f) 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, culverts, bridges and public buildings, de -silting of canals and other development pursuits." The term 'functions' covers the powers and duties under various provisions of an Act. 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 or 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, "McCarthy & Stone (Developments) Ltd. v. London Borough of Richmond Upon Thames" (1994 SCMR 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. H.B.T./M‑1356/L Petition allowed.