2004 PLP 366 (YLR)

14. It is also argued that T.M.A. does not require anybody to install his sign boards in the city. If the petitioners want to, do so and avail some special benefits by advertising their product to the citizens of the city, then they are obliged to contribute for the betterment .of the city and its citizens.

15. It is also argued that corporations /corporate bodies are not exempted from the Local Government levies thus it is contended that without prejudice to Item 48, Part I of the Fourth Schedule, the Local Government/T.M.A. can impose levies detailed in the Second Schedule of the Punjab Local Government Ordinance, 2001.

16. Learned counsel for respondent No.3 contends that the petitioners use the space of the city to attract the citizens towards their products by displaying advertisement boards in the various localities of the city, therefore, their use of the space of city within its boundaries is a special benefit which they are deriving, therefore, it is a benefit and a special privilege which they are deriving by use of limit of the city. Relies on Pakistan Flour Mills Association and another v. Government of Sindh and others 2003 SCMR

162. It is further argued that on receipt of such fee the respondents maintain the civil amenities and privileges of the citizens, who are being attracted to the products of the petitioners by their advertising process. It is further argued with reference to Sindh Glass Industries Limited v. Chief Controller of Import and Export, Islamabad and 2 others 1990 CLC 638, that even if, no specific service is rendered as a consequence of levying of fee but if somebody received some benefit still a fee can be levied.

17. It is next submitted with reference to the increase in the rate of the levy that previously Multan City was catering 45 Union Councils while at present it consists of 58 Union Councils. Thus the expenses have gone many times which require increase in different levies.

18. It is also argued that none of the petitioners in their writ petitions took up the plea that under section 54(2)(a) of the Punjab Local Government Ordinance, 2001 an individual cannot be granted a contract, therefore during arguments this point could not be allowed to be taken. 1J. As a right of reply, the learned counsel fox the petitioner contends that since intricate questions of law and Constitution are involved in the instant case, therefore, the alternate remedies indicated by the learned counsel for the T.M.A, by no means can be termed as adequate. Relies on Messrs Daewoo Corporation v. Government of Punjab and others 1995 SCMR 977, Haji Ghulam Qadir and 47 others v. Municipal Committee, Lalamusa, District Gujrat through Administrator and 3 others 1998 CLC 1647 and Rauf Trading Company Limited v. Faisalabad Municipal Corporation through Mayor and another 1990 CLC 1732.

20. I have considered the arguments the learned counsel for the parties.

21. The first question to be looked into is whether in the presence of alternate remedies by way of appeal, as argued by the learned counsel for the T.M.A. these petitions are maintainable. It is evident from the preceding paragraphs that learned counsel for the parties have raised some important questions of law which require interpretation of certain provisions of the Punjab Local Government Ordinance and the Constitution. Primarily interpretation of law and the Constitution, is the duty of the superior judiciary, therefore in such circumstances, despite availability of an alternate remedy this Court can entertain a matter directly Constitutional jurisdiction. It is also to be noted that mere availability of an alternate remedy is not sufficient to refuse from entertaining a Constitutional petition. Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the following phrase is used:‑‑ "A High Court may, if it is satisfied that no other adequate remedy is provided by law." In this phrase, the word "adequate remedy" is used and not "alternate remedy". Had the framers of the Constitution used the phrase "alternate remedy", then this Court would not have been left with any option but to refuse a Constitutional petition if an alternate remedy was provided. But the use of phrase "adequate remedy" subjected with the objective satisfaction of the Court, requires this Court to examine each and every case in its own given circumstances to satisfy itself as to whether the remedy is "adequate" or not. As already observed since important questions of law are involved in this case which are ultimately expected to come before this Court for their final resolution, Constitutional remedies can safely be said to be adequate and appropriate. Reference can be made to United Business Lines, S.I.E., Gujranwala and another v.' Government of Punjab through Secretary, Local Government, Lahore and 5 others PLD 1997 Lahore 456 and Muhammad Ashraf v. Board of Revenue, West Pakistan and another PLD 1968 Lahore 1155.

22. The next question which requires to be resolved is whether impugned levy is a tax or a fee. There is no doubt when this levy was initially advertised, as required under the Punjab Local Government (Taxation) Rules, 2001 the nomenclature given to the levy was "advertisement tax". The name given to the impugned levy in the impugned notification is also "advertisement tax". But Second Schedule, Part III, item 6 of the Punjab Local Government Ordinance, 2001 postulates that T.M.A. can levy "fee on advertisement". Section 2(xxxi) of the Ordinance carries the definition of word "tax" in the following words:‑‑ Definition.‑‑‑In this Ordinance, unless there is anything repugnant in the subject or context: (i)

(xxxi) tax includes any cess, fee, rate, toll or other impost leviable under this Ordinance. A cursory reading of the provision does give an impression that all levies made under the Ordinance shall be treated as "tax". If this had been the intention of the Legislature then there was no need to give detail of other types of levies in the charging section 116 like cess; fee, rates, rents, toll, charges, surcharges and levies specified in the Second Schedule. Likewise it was also not required that in the Second Schedule different types of levies should be given different names like local rates, fee cess, collection charges, rent, toll etc. etc Tax, among all the above‑referred levies has a different characteristic, i.e. it is compulsory exaction under Legislative Authority from the citizens for the running of State of a local authority. While the other levies do not have a status of a tax. The other levies have their own limited sphere of utilization with a particular object while the tax can be utilized for any purpose by the State or the local authority for running its affairs. The definition of tax given in clause (xxxi) of section 2 of the Ordinance will not be attracted if the subject or context in the Ordinance) indicates a different Legislative intent. It appears that this consolidated definition of tax was objected to achieve the purpose that for all types of levies a uniform procedure of imposition and collection may be adopted through rules and separate rules and procedure might not be required for each type of levy separately. From the above discussion it is evident that T.M.A. was competent to levy "advertisement fee" and not "advertisement tax". Since this is a fiscal matter and required to be construed strictly, therefore, it cannot be said that nomenclature given to the impugned levy in the impugned notification as "advertisement tax" may be read as "fee on advertisement". Moreso, it appears that the T.M.A. never intended to levy a fee, rather from the very beginning they intended to levy advertisement tax as it is evident from the advertisement dated 19‑5‑2002.

23. According to section 54(l)(g) of the Local Government Ordinance, 2001 it is the function and power of the T. M. A. to regulate the affixing of sign board and advertisement. The relevant provision is reproduced as under for ready reference:‑‑ "

54. Functions and powers of the Tehsil Municipal Administration.‑‑‑(1) The functions and powers of the Tehsil Administration shall be to:‑‑ (g) regulate affixing of sign boards and advertisements. " Before exercising this power this function of the T.M.A. is required to be regulated by framing bye‑laws under section 192 of the Ordinance. Fifth Schedule, Part II, Item No.39 requires the framing of bye‑laws. On my query, learned counsel for the T.M.A. has frankly conceded that no such by‑laws have been framed to regulate the affixing of sign boards and advertisements. It is well settled principle of law that if law requires a thing to be done in a particular manner, then it should be done in that particular manner or not at all. Reference can be made to Nazir Ahmad v. King‑Emperor AIR 1936 PC 253, Ghulam Mustafa v. Chairman, Board of Intermediate and others 1998 CLC 432 and Muhammad Jaffar Tarrar v. District Magistrate, Gujranwala and another 1990 CLC 281: It is unfortunate that the T. M. A. without adverting to the legal requirement had jumped directly to the final stage of levy and started collection. At least it was required from the T.M.A. to frame by‑laws to regulate the system of affixing of boards and advertisement in the city, providing the place where such boards could be affixed, size of boards, the material to be used, language and pictures that can be displayed, prohibited zones so on and so I forth. It is to be noted that in the recent past some incidents had taken place in the city. Some people damaged certain advertisement boards containing pictures of the ladies. Through by‑laws some penalty can also be proved for causing damage to such property. It is thus held that T. M. A. may levy fee on advertisement, but before such levy could be imposed, by‑laws necessary for regulating the system of advertisement in the city should be framed.

24. Under section 54(2)(a), T.M.A. may assign or contract in respect of any of its functions to public‑private or public or private organization. The relevant provision is reproduced as under:‑‑ , "The Tehsil Municipal Administration may‑‑ (a) assign or contract out, on such, terms and conditions as are approved by the Tehsil Council and after inviting public objections, any of its functions to any public- private, public or private organization. "

25. In the above provision the word 'organization' has been used and not a person. Thus it is evident that T.M.A. can neither assign any of its functions nor enter into a contract with an individual. In the instant case, T.M.A. has contracted for the recovery of the fee with an individual which is violative of the abovesaid provision. Although this point was not so specifically taken by any of the petitioners in these petitions but since it is pure question of law, the same could be raised and argued at any stage.

26. Undoubtedly the disputed levy is a fee, its rate must be commensurate with the expenses incurred in regulating it, its collection and to some extent a special benefit being derived by the beneficiaries. Had it been a tax, the above considerations might not have been much relevant.

27. In the instant case, the impugned) notice for the recovery has been issued by the contractor under section 142 of the Ordinance. Under the said provision, such a notice can only be issued by an officer authorised by the Nazim who is under his administrative control. The contractor is certainly not under the administrative control of Nazim therefore notice issued by him is also without lawful authority.

28. The argument of the learned counsel for the T.M.A. that by increase in number of Union Councils in the city from 45 to 58, additional revenue is required to meet with the expenses, is without any substance. In order to generate revenue only permissible taxes can be levied. Imposition of fee can by no means be equated as a tax for the purposes of generating revenue.

29. For what has been stated above, these writ petitions are allowed and the impugned notices issued by the contractor and the notification dated 4‑7‑2002 issued by the T.M.A. are declared to be illegal and without lawful authority. No order as to costs. M.B.A./S‑728/L Petitions accepted.