2012 PLP 1124 (CLC)

MUSHIR ALAM, C.J.

Petitioner, engaged in the business of manufacturing and selling of the batteries, has an outlet within the jurisdiction of Cantonment Board, Clifton, Karachi. It is the claim of Petitioner that they have received impugned letter from the respondent No.2 purportedly under the authority of the Cantonment Board Clifton demanding "Shop Board Fee". According to learned counsel for the Petitioner, Cantonment Act do not permit or authorize the Board to impose levy or claim such fee what to speak of delegation of authority to collect such fee through respondent No.2 or private collection Agency. It was urged that the Board under sections 60-70 could impose tax and such as to notification and approval of the Board and she competent authority i.e., Government of Pakistan by-passing such mandate of the law have chosen to collect "shop board fee" having no sanction of the law. It was further contended that the collection of the tax or performance of the duty as contemplated under the Act could only be delegated to an authorized officer of the Cantonment Board in terms of section 86 and not otherwise. It was therefore, urged that impugned demand may be struck down and action be annulled.

2. Learned Counsel for the Respondent No.1 Mr. Jamaluddin Ansari, contended that the Cantonment Board has authorized the respondent No.2 to raise such demand in exercise of powers contained in section 200 of the Cantonments Act, 1924.

3. It was further contended that collection of such charges could be delegated in terms of the powers under section 112 of the Cantonments Act, which reads as under:-- "Contracts by whom to be executed.-- Subject to the provision of this Chapter, every Board shall be competent to enter into and perform any contract necessary for the purpose of this Act"

4. It was therefore, urged that this petition is misconceived and liable to be dismissed.

5. Mr. Hanif Kashmiri counsel for respondent No.2 states that file has been collected by the respondent No.2 and since the Board has authorized the respondent No.2 to collect "shop board fee" therefore, in exercise of the delegated authority such demand has been made.

6. Learned Counsel for the petitioner in exercise of right of rebuttal contended that in terms of section 200 ibid; charge for the occupation or use of any stall, shop, standing, shed or open in a "public market" could be levied by the Board, and not otherwise. According to him such powers do not extend to collection of the "shop board fee" in respect of private markets or place. He has further drawn our attention to definition of the public market given in section 2(xxx), which means a market maintained by a Board". It was urged that the subject premises is not situated in public market and even otherwise "Shop Board fee" has no legislative support.

7. We have heard the arguments and perused the record. It is settled position in law that fiscal and charging statutes are to be strictly construed. No Government or Authority can compulsorily extract money from any class of person either in the form of tax, v fee, charge or levy; unless specifically authorised by our under the law (See Articles 77, 162 and 163, of the Constitution of Pakistan, 1973).

8. In the case of Rajkumar v. Hyderabad Cantonment Board (2006 MLD 549) this court had occasion to examine the vires of parking fee; levied by the by Cantonment Board on commercial vehicles. It was held that Tax toll or fee could not be imposed and/or levied by any government agency without appropriate legislative authority and since there were no provisions in the Cantonments Act, 1924 empowering Cantonment Board to charge parking fee, such levy was without lawful authority. Court also had the occasion to examine section 200 of Cantonments Act, 1924, it was held that exclusive powers conferred under the section upon Cantonment Board to charge fee for the purposes prescribed therein, could not be exercised by anyone else including the Executive Officer of the Board and the parking fee by Board, was declared by High Court as illegal, null and void. Such view was reiterated in the case of Munawar Younus and others v. Karachi Cantonment Board (2011 MLD 1006).

9. In the case of Station Commander Chaklala Cantonment v. Col. (R) Muhammad Abbas Malik 2006 CLC 1674. Court had the occasion to examine the incident of taxation and manner in which tax, fee, charge or levy could be imposed under the Cantonments Act, 1924. It was held that Under sections 60, 61 and 255 of Cantonments Act, 1924, Board might, with previous sanction of Central Government, impose in any Cantonment any tax which, under any enactment for the time being in force, might be imposed in any Municipality wherein such Cantonment was situated, after passing of resolution for imposition of tax, Board was to publish a notice specifying the proposals to persons or classes of persons who were to be made liable for tax along with description of property and other taxable things. Proposals were to be published for objections and after hearing objections, final proposals were to be placed before Central Government. It was further held that procedure prescribed in Ss.60 to 63 was mandatory to revise and enhance' "water charges" or "water tax".

10. In order to appreciate contention of Mr. Jamal learned council for the Cantonment Board reading section 200 ibid would be beneficial which runs as follows;

"200 Levy of Stallages, rents and fees:

A Board may (a) charge for the occupation or use of any stall, shop, standing, shed or open in a public market, or public slaughter-house, or for the right to expose goods for sale in a public market, or for weighing or measuring goods sold therein, or for the right to slaughter animals in any public slaughter-house, such stallages, rents and fees as it thinks fit; or (b) with the sanction of the Competent Authority, farm the stallages, rents and fees leviable as aforesaid or any portion thereof for any period not exceeding one year at a time; or put up to public auction, or with the sanction of the Competent authority, dispose of by private sale, the privilege of occupying or using any stall, shop, standing, shed or open in a public market or public slaughter-house for such term and on such conditions as it thinks fit.

11. On reading section 200 ibid; it is quite clear that a Board indeed has authority to levy "Stallages, rents and fees" in respect of (i) "occupation or use of any stall, shop, standing, shed or open or (ii) for the right to expose goods or (iii) for weighing or measuring goods in "public market". Such power to impose stallage, rent and fee is not unqualified, but could only be used with the prior approval and sanction of the Competent Authority [i.e. the Chief of Army Staff or any other officer appointed by the Federal Government per section 2 (viii)]. Nothing has been placed on record to show that even such levy has approval of the competent authority. The provision relied upon clearly speaks that the Board could exercise its authority to levy "Stallages, rents and fees" in respect of shops, stall etc. situated in the "Public Market" which is defined in section 2(xxx) of the Cantonments Act, which means "a market maintained by a Board". Admittedly shop of the Petitioner is not situated in public market but in private commercial premises. Even other wise "Shop Board Fee" appears to be entirely different genre of fee more relatable or akin to advertisement/signboard of the shop, which does not fall within the contemplation of "Stallages, rents and fees" within the contemplation of at least section 200 of the Cantonments Act, 1924. No other provision of Cantonments Act, 1924 was pointed out by Mr. Jamal Ansari, learned counsel for the Board, which may justify or sanction or imposition of impugned "Shop Board Fee".

12. In view of the foregoing we are of the humble opinion that the Board has no authority to grant or approve "shop Board Fee", even approval of charge is itself colourable authority not vested in the Board, accordingly the impugned demand is struck down. Board has no authority to collect "shop board fee" from a private commercial premises unless of course law is amended to vest Board with such authority.

13. As regards delegation of the authority is concerned, since the very imposition of the "shop board fee" is held to be without lawful authority, we do not deem fit to consider fit and appropriate to deal with such aspect of the matter, which may be considered in appropriate case. Petition in terms of the above disposed of. H.B.T./E-2/K Petition allowed.