P L D 1969 Lahore 557 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑The petitioner is a partnership firm. It has been admittedly the lessee of the cotton ginning factories mentioned in Annexure P/2. It was served with demand notice to pay cotton fee for the years 1959‑60 to 1966‑67 at the rate of twenty‑five paisa per maund. The total demand made on the petitioner was of Rs. 5,38,081.92 out of which Rs. 4,04,574.97 having been paid by the petitioner, the balance amount comes to Rs. 1,31,506.95 which was still payable by the petitioner at the time this petition was filed challenging the imposition of the fee as without lawful authority and consequently of no legal effect.

2. The petitioner has challenged his assessment for the years 1959‑60 to 1964‑

65. The fee demanded from him is at the rate ~f twenty‑five paisa per maund.

3. It was contended that the cotton fee for the years in question was imposed by different notifications after the end of those years and that the same could not be imposed retrospectively through notifications. Reliance was placed on S. M. Ilahf & Co. v. The Government of West Pakistan (Civil Appeal No. 87 of 1965, decided on the 19th of May 1967). It was held by the Supreme Court that the impo4ition of enhanced fee through. notifications having retrospective operation was not valid. The assessee was held liable to pay tile cotton fee at the rate of four annas per maund as was fixed by notification, dated the 10th of October 1952. Even if we accept the contention and ignore the impugned notifications, the petitioner will still remain liable to pay cotton fee at the rate of annas four (which is equivalent to twenty‑five paisa) per maund On unginned cotton in accordance with the notification of the Punjab Government dated the 10th of October 1952.

4. The learned counsel for the petitioner next contended that the amount could not be recovered as arrears of land revenue. This question has been set at rest in Muhammad Ismail & Co. etc. v. Chief Cotton Inspector (P L D 1966 S C 388), where it was observed by S. A. Rehman, J. " . . . . , Mr. Aftab Hussain advanced the argument that the impugned fee was sought to be recovered from his clients as arrears of and revenue, without there being any provision legalizing that procedure. It appears, however, that the question has become academic because of the promulgation of Ordinance XXII of 1962, which authorizes then recovery of this fee as arrears of land revenue. The point, therefore, need not detain us as it does not involve a live issue."

5. The petitioner on its failure to pay cotton fee for the years 1966‑67 at the rate of twenty‑five paisa per maund within the stipulated period, has been required vide rule 12 read with. rule 25 of the aforesaid rules to pay cotton fee at the rate of fifty paisa per maund. The rules read as :‑ "

12. Fees for licence, etc.‑(1) The fees referred to in. rules 8, 9, 22 and 25, shall be as under :‑ Fee Rule 25 . . . . Receipt of cotton during a cotton year (cotton fee). (a) 25 paisa per maund if paid within two weeks of' the close of the cotton year; and (b) 50 paisa per maund, if paid after the date prescribed under (a).

25. Fees for development of Agriculture relating to cotton: crop, etc. (1) For the purposes of development and improvement of Agriculture relating to cotton crop and for meeting the expenses on the administration of the Ordinance, every occupier of a factory, cotton dealer or manager of a company shall pay on the cotton received by him a fee at the rate specified in rule 12. (2) The occupier of every factory and the manager of every firm or company and every cotton dealer shall keep a daily account of all cotton or cotton seeds purchased by him in Form `X', in bound and machine paged Registers, which shall be produced before the Extra Assistant Director of Agriculture of the District concerned on demand and shall be preserved for five years from the close of the last cotton year to which the last entry relates. (3) Within a fortnight of the close of each month, a return in Form `Y' shall be sent by every occupier of a factory every Manager of firm and company and every Cotton dealer to the Extra Assistant Director of Agriculture of the District. The Treasury receipt to show that amount of the fees has been duly credited in a Treasury shall be attached to this return. (4) On receipt of the return prescribed in sub‑rule (3) the Extra Assistant Director of Agriculture of the District concerned shall verify that the fees have been correctly calculated and that the full amounts due on that account have been credited in the Treasury. (5) The arrears of fees imposed under sub‑rule (1) if not credited by the due date shall be recoverable as arrears of land revenue. It was contended that the Government is empowered under section 30 to make rules for levying fees but it has no authority under the Act to provide for the penalty and that rule 12 to the extent that it provides for payment of fee in excess of twenty‑five paisa is ultra vires. Clause (1) of section 30 of the Ordinance is reproduced:

"

30. Power to Government to frame rules.‑(1) Government may, by notification, frame rules consistent with this Ordinance to give effect to the provisions of this Ordinance. (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely :‑ (1) the fees to be paid by the occupiers of factories or by cotton dealers or by managers of companies at the rates to be prescribed by Government, for the development and improvement of agriculture relating to cotton crop, and for meeting the expenses on the administration of this Ordinance." It is manifest from the tenor of this provision that rules can be framed only for levying cotton fee. The Ordinance does not empower the Government to provide for penal consequences in case there is a default made in the payment of cotton fee. The amount in excess of twenty‑five paisa is undoubtedly not a fee. It is penal in nature. The Rule to the extent it provides for an additional twenty‑five paisa per maund in case the fee is not paid within the stipulated period being not a fee but a penalty is ultra vires the provisions of the Ordinance. The respondent even if there is a default cannot claim the amount in excess of twenty‑five paisa.

6. The result is that the petition is dismissed so far as it relates to the years 1959‑60 to 1955‑

65. It is partly accepted for the year 1966‑67 and the respondents are directed not to make any claim on the petitioner for this year in excess of twenty‑five paisa per maund. There shall be no order as to costs. A. E. Petition partly accepted.