P L D 2004 Karachi 57 (PLP)

KHILJI ARIF HUSSAIN, J.

The petitioner seeks declaration that the collection of royalty and excise duty from Rati Bajri owners by respondents Nos.9 to 13 at their check post for the purpose of shifting Bajri to Karachi is illegal, and without lawful authority. Brief facts of the case are that the petitioner claims to be President of Rati Bajri Truck Owners Association and in the capacity filed the present petition to protect the interest of truck owners. It is stated in the memo. of petition that the truck owners use to purchase Rati Bajri from Bajri site situated at Thatta and other parts of Sindh and in this respect truck owners have to pay an excessive amount to the owners of the land where Rati Bajri is lying and no rate is fixed by the respondent No.1 (Secretary Industries, Government of Sindh, Karachi) and respondent No.2 1 Secretary Labour, Government of Sindh, Karachi) in this regard. It is stated that in spite of ban under section 144, Cr.P.C. on lifting the Rati Bajri, the respondents demanded royalty on the trucks carrying Rati Bajri. The respondents Nos.9 to 13 were claiming as contractors to collect royalty on behalf of respondents Nos. 1 to

3. The petitioner's grievance is that the royalty being charged is illegal as Rati Bajri is brought from Dadu, Kotri, Thatta and the petitioner had paid substantial amount to owner of land from where they lift the Rati Bajri. The, petitioner also expressed his grievance that then: is no weighing machine at any place or at any Chungi to determine the charges. Heard Mr. Zia Ahmed Awan, learned counsel for the petitioner, and Mr. Muhammad Sarwar Khan, Addl. Advocate General, Sindh along with Mr. Tanveer Azhar Siddiqui, Law Officer of Mineral Labour Department. The learned counsel for the petitioner argued at, length that no royalty can be collected or imposed on Rati/Bajri, which has carried to Karachi on trucks as respondent has not issued any notification in this regard and at best the respondent can recover royalty, on gravel. The learned counsel further argued that in the Schedule of Excise Duty or Minerals (Labour Welfare) (Sindh) Rules, 1969 only "gravel Ord" has been mentioned, whereas Rati, and Bajri has not been mentioned in the. said Schedule,, therefore, the action of the respondents collecting royalty on Rati and Bajri is without any lawful authority. In support of his contention the learned counsel for the petitioner relied on the case of Nazeer Ahmed and 8 others v. Commissioner, Lahore Division. Lahore 2000 MLD

322. In the said judgment the Hon'ble Lahore High Court, while dealing with the question pertaining to land acquisition, held that the action of Government functionaries only protected, if it was valid and not otherwise. There is no cavil to this proposition that any act of the Government functionaries outside the parameters of law cannot be given protection, but we are afraid that the learned counsel for the petitioner failed to demonstrate that how the acts of the respondents collecting royalty on Rati Bajri can be termed as an act without lawful authority. On the other hand, Mr. Muhammad Sarwar Khan, Addl. A.-G. Sindh, drew our attention to Letter No.MD/CDN-4(477)99/1781-86, dated 25-6-1999, issued by Directorate of Mineral Development, Government of Sindh. informing the decision of the Government of Sindh for collection of the royalty on golden marbles and Rati/Bajri extracted/quarried under mining leases in District Dadu. The said letter while authorizing collection of the royalty-on golden marble and Rati and Bajri, rates were also fixed in this regard as under:-- (i) Golden marble at the rate of Rs.20 per ton (1000 Kgs.) (ii) Rati/Bajri. * Rs.24 (Pick-Up) per trip. * Rs.40 (Tractor Trolley) per trip. * Rs.40 per truck if the mineral load does not exceed 10 tons and if the load exceeds 10 tons an additional amount at the rate of Rs.4 per ton, shall also be charged. Our attention was also invited to Gazette Notification dated 30-6-1994 whereby. Third Schedule of Pakistan Mineral Concession Rules, 1960 has been amended and through these amendments following entries were inserted:

1. Aggregate Stone. Five per cent. on the value at pit's mouth Rati/Bajri Ordinary subject to a minimum of four rupees per Stone Ordinary Sand ton (1000 K.gs.) provided that the rate of Morum. royalty on surface minerals disposed of through auction shall be as under:

1. Rs.24 (Pick-Up) per trip.

2. Rs.40 (Tractor Trolley) per trip.

3. Rs.40 per truck if the mineral load does not exceed 10 tons and if the load exceeds 10 tons an additional amount at the rate of Rs.4 per ton shall also be charged. In view of the notification imposing royalty on golden marble. Rati and Bajri, the petitioner has no case to question collection of the said royalty. The petitioner has not argued before us that the said notification inserting Rati and Bajri in the Schedule has been issued without any lawful authority or any rules or regulations have been violated while issuing said notification. For the foregoing reasons, the petition is dismissed in limine with an observation that respondents will make necessary arrangement for weighing machine to avoid excess charges. H.B.T./A-51/K Petition dismissed.