2023 PLP 1187 (CLC)

MOHSIN AKHTAR KAYANI, J.

Through the instant writ petition, the petitioner has prayed for following relief:- i. Declare the collection of tax by respondent No.5 under BOT agreement with respondent No.2 as illegal, unconstitutional without lawful authority and of no legal effects. ii. Direct the respondent No.2 to take decision on the letter of respondent No.6 pending before him. iii. Grant any other relief this Honorable Court deems fit and just in the circumstances of the case.

2. Petitioner in person submits that he is lawyer by profession and Member of the Islamabad Bar Association; that a letter was issued by the then President Islamabad High Court Bar Association in the year 2018 to Registrar of this Court disclosing the difficulty of advocates in paying toll tax on motorway in connection with their professional duties, which was considered as grievance and respondent No.6 i.e. Assistant Registrar (General), Islamabad High Court was pleased to write a letter to respondent No.2/National Highway Authority to consider the request of Advocates and place them in exemption from paying Motorway Toll Tax; that respondent No.2/National Highway Authority is in agreement with respondent No.5 i.e. Built Operate and Transfer (SOT) under which toll, a type of tax is being collected by FWO, who are charging heavy amount for employing their own staff on toll plazas and providing services for the benefit of NHA and thus earning heavily from the public including lawyers community and this import of tax is serious restriction on the freedom of inter-state movement of advocates; that respondent No.2 has exempted the vehicles of police, National Highway and Motorway Police and vehicles bearing broad arrow plates under the use of armed forces and ambulances on Motorway, but no order has been passed so far on the letter of respondent No.5, which is lying unattended in the office of NHA.

3. Conversely, learned AAG as well as counsel for National Highway and FWO raised the question of maintainability of instant writ petition and also argued that NHA can only exempt those special classes, which are notified by the Ministry of Information, Government of Pakistan and Lawyers are not included in the said list, therefore, they cannot be exempted from the toll taxes and it is not within the policy mandate of NHA to grant such exemption and as such request of the petitioner has already been turned down. It has further been contended that instant writ petition is not competent and same is liable to be dismissed.

4. Arguments heard and record perused.

5. Perusal of record reveals that petitioner is aggrieved with the refusal for grant of exemption to the Lawyers communities and Members of the Islamabad High Court Bar Association from the toll tax charged by the NHA through FWO on the Motorways in Pakistan. The entire arguments of the petitioner's side is based upon the exemption granted to Armed Forces (broad arrow plates), Ambulances, Provincials, National Assembly Highways and Motorway Police (NH&MP), Fire Brigade vehicle and vehicles having Supreme Court and High Court Flags/Insignia plates, whereas the exemption granted to these special categories is based upon the policy of NHA, which is the exclusive jurisdiction under their law with reference to NHA Act, 1991. The record also reflects that Lawyers were not even exempted from toll tax on GT Road and as such NHA Authorities could not be dictated to grant exemption to a particular community, group, association or company or individual.

6. In order to settle this question, this Court has also attended the background of construction of motorways in Pakistan, which reveals that all the motorways and strategic roads have been established under the concept of NHA Act, 1991, who is authorized to make a policy to collect the toll tax from all citizens and the toll by its definition is a kind of a fee and it is applicable to all the roads users for enjoying facilities on specific roads charged by NHA, which is exclusively within the policy domain of NHA.

7. This Court has also been apprised with the historical perspective of M2 6-lane, Islamabad Motorway, which was open for traffic in November, 1997. The M-2 had completed its design life and most of its part was showing deterioration very fast as it was the busiest of the motorways. Respondent No.2/NHA initiated efforts to save this important segment of Motorway without burdening the Government of Pakistan, keeping in view its financial constraints and undertook the project through Public Private Partnership on Built-Operate-Transfer (BOT) basis. A request for proposals was advertised in the leading newspapers after following all the legal formalities and procedures. However, respondent No.5/FWO was declared successful bidder by the committee of respondent No.2. After a detailed scrutiny and evaluation process, a Concession Agreement was signed on 23.04.2014 between NHA and M/s MORE (Pvt.) Limited, a special purpose vehicle formed by respondent No.5 in line with the requirement of request for proposal. The scope of the project included complete financing, design, construction, operation and maintenance of M-2 for 20 years. Under the concession Agreement, toll fee was also allowed to be collected by respondent No. 5 on agreed rates between NHA and Messrs MORE (Pvt.) Limited. The amount so collected has to be spent on the overlay and modernization of M-2 has to be recovered by the Project Company. The details have been provided in Schedule I of the Concession Agreement and as such it is not the prerogative of the FWO to charge toll taxes as per their choice, rather it is within the agreed formula executed by NHA, which they are allowed to exercise their legal authority in terms of Section 10(ii)(vi)(vii)(xiii) which are as under:- Levy, collect or cause to be collected tolls on National Highways, strategic roads and such other roads as may be entrusted to it and bridges thereon; Raise finds (local and foreign) through borrowing, floating of bonds, sharing or leasing, of assets or any other means, from time to time.

8. The above referred provisions extended the complete authority to NHA to enter into the contract by way of legislative authority even otherwise NHA tolling policy was introduced for all National Highways, Strategic Highways and Motorways network to implement A FEE FOR SERVICE concept ensuring maximizing of revenues and implementing a strategy of Highway self-sustainability through state of the art Toll and Highway Maintenance Systems, in which particular six categories referred above were given exemption, even this aspect was discussed and settled in the judgment reported as 2018 YLR 754 (Board of Intermediate and Secondary Education, D.G. Khan v. National Highway Authority, Islamabad), therefore powers entails in Section 10(2)(vii) of the NHA Act, 1991, to levy, collect or cause to be collected tolls on National Highways, strategic roads and such other roads as may be entrusted to it and bridges thereon confers exclusive authority, therefore, no, question could be raised on the legitimate authority of NHA to enter into contract with FWO or with special purpose vehicle M/s MORE (Pvt.) Limited, even by way of Section 10(2)(xi) of NHA Act, 1991, the NHA can award negotiated contracts or projects to be undertaken through private sector financing program, hence the concept of Concession Agreement shall be given protection.

9. While considering the claim of petitioner, which though seems to be on a public interest concept, but it is obligatory upon any person, who is claiming a public interest, firstly to place transparently demonstrate its complete bona fides; that such litigation is being undertaken to serve a private or vested interest, but is demonstrably aimed at serving the public interest, good or welfare as held in 2018 SCMR 365 (Premier Battery Industries Private Limited v. Karachi Water and Sewerage Board and others), therefore, jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was required to be exercised carefully, cautiously and with circumspection to safeguard and promote public interest and not to entertain and promote speculative, hypothetical or malicious attacks that blocked or suspended the performance of executive functions by the Government. Public interest litigation had been termed as a strategic arm of the legal aid movement which was intended to bring justice within the reach of the poor masses who constituted the low visibility area of humanity as held in PLD 2017 Islamabad 115 (7C'S Corporate Services v. Oil and Gas Development Company Limited and others).

10. There is no denial that public interest litigation is that litigation, which is in interest of public at large; it was a legal action or proceedings initiated for the protection or enforcement of the rights of public at large, such kind of litigation demanded that violation of constitutional or legal rights of a large number of people who were poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed as held in PLD 2020 Lahore 229 (Muhammad Ahmad Pansota and others v. Federation of Pakistan and others), therefore, public interest for public at large for their good or welfare is a primary precondition to safeguard and promote the public interest and if those conditions were not visible subject to any fundamental right, which has been violated by the respondents or through an executive action, petition is not maintainable as held in 2015 SCMR 851 (Muhammad Shafique Khan Sawati v. Federation of Pakistan through Secretary Ministry of Water and Power, Islamabad).

11. Keeping in view the above position, neither legal right has been established by the petitioner nor the policy domain of the NHA could be interfered by this Court in judicial review and no public interest has visibly seen with the concept of lawyers community to grant that exemption on National Highways and Motorways or other Strategic roads in anywhere in Pakistan.

12. For what has been discussed above, I found no substance in the instant writ petition, therefore, same is hereby DISMISSED. SA/55/Isl. Petition dismissed.