P L D 2006 Supreme Court 528 (PLP)

KARAMAT NAZIR BHANDARI, J.

By the impugned judgment dated 9-12-2005 a Division Bench of the High Court of Sindh at Karachi allowed the Constitutional Petitions filed by the respondents in these petitions and declared the levy and recovery of vend fee, assessment fee and surcharge on assessment fee as without lawful authority. The Province of Sindh and its officials, the petitioners in all these petitions seek leave to appeal from the aforesaid judgment.

2. In the High Court the Petitioners defended the levy of fee etc. by relying on Rule 23-A, and Rule 23-B, of the Sindh Prohibition Rules, 1979, (hereinafter referred to as the Rules) which were added on 1st of July, 1981, in purported exercise of the powers conferred by Article 31 of the Prohibition, (Enforcement of Hadd) Order, 1979. (hereinafter referred to as the Order). Incidentally by the same Notification amendment was also made enhancing the licencing fee from Rs.10,000 to Rs.15,

000. Although disputed fees were levied in 1981 but through subsequent amendments up to 2000/2001, their rates were enhanced, from time to time. After examination of the provisions of the Order, the High Court concluded that the Order, the parent statute did not authorize the levy of the vend fee, the assessment fee and the surcharge. According to the High Court the Order authorized the issue of licence by the petitioner-Government, and for this purpose only, under Article 18 it can levy and recover fee. According to the High Court what was described as vend fee, assessment fee and surcharge is actually not fee but a tax which can only be levied and recovered under the authority of the Act of Legislature and not the Rules.

3. In support of these petitions Qazi Khalid Ali, learned Additional Advocate General has strenuously urged that under the rule making power conferred by Articles 21 and 31 of the Order, the Petitioner-Government was competent to levy and recover the disputed fees and the view taken by the High Court is incorrect. By referring to Rule 10 of the Rules, the learned Additional Advocate General has argued that as the alternate remedy was available to the respondents the High Court should have directed the respondents to avail of the same in the first instance. He has further argued that since factual controversy was involved, the High Court acted improperly in exercising its constitutional jurisdiction. Reliance has been placed on Collector of Customs, Lahore and others versus Universal Gateway Trading Corporation and another (2005 SCMR 37), Pakistan Tobacco Company Ltd. and others versus Government of N.-W.F.P. through Secretary Law and others (PLD 2002 SC 460) and Messrs Army Welfare Sugar Mills Ltd. and others versus Federation of Pakistan and others (1992 SCMR 1652) for the above propositions.

4. We do not find any force in the submissions of learned Additional Advocate General as regards the availability of alternative remedy and involvement of factual controversy. It is clear that no factual controversy is involved in these cases. The point involved is legal viz. the validity of the levy and recovery of the fees on the touchstone of the provisions of the Order and the Rules. Similarly a bare reading of Rule 10 shows that it authorizes the petitioner-Government or its authorized officers to call for and examine the record of the proceedings, taken or passed by any authority subordinate to it, so as to satisfy itself as to the legality or propriety of the same. In view of the legal proposition involved, this revisional power cannot be said to be an alternative remedy, much less adequate. Further, it is well settled that in a case where validity of the law or the rules or the instructions having the force of law is involved the availability of alternative remedy has never operated as a bar to the exercise of writ jurisdiction by the High Court. These two submissions of the learned Additional Advocate General are repelled.

5. Even on the merits of the controversy we are unable to agree with the submissions of the learned Additional Advocate General. The High Court has correctly held that the Order only authorized the grant of licence on payment of such fee, if any. The Order does not authorize the levy of assessment fee, vend, fee and surcharge. To appreciate this conclusion it is expedient to reproduce the relevant provisions: Article 18 of the Order reads: "

18. Forms and conditions of licences. Every licence issued under this Order shall: (a) be granted on payment of such fee, if any, for such period and on such condition; and (b) be in such form and contain such particulars; as the Provincial Government may direct, either generally or in any particular case." Rules 23-A & 23-B of the Rules, relied upon by learned Additional Advocate General read: "Rule 23-A. The Vend Fee in respect of spirits, Wines and Beer shall be charged and payable as follows:-- (1) All spirits other than Rectified spirit.??????????????????????????????????????????????????????????????????????????????????????? Rs.10 per doz quart. (2) Wines including Champagne.?????????????????????????????????????????????? Rs.5 per doz quart. (3) Beer including ale, cider, Porter or the Like.???????????? Rs.2/50 per doz quart 23-B. The assessment fee on various kinds of liquor shall be charged and payable as follows:-- (1) Superior Spirit including champagne.??????????????????????????????????? Rs.70 per quart. (2) Cheap Spirits.???????????????????????????????????????????????????????????????????? Rs. 50 per quart (3) Wines???????????????????????????????????????????????????????????????????????????????? Rs.15 per quart (4) Beer?????????????????????????????????????????????????????????????????????????????????? Rs. 10 per quart

6. The reading of the above provisions clearly establishes that the Order only authorises the grant of licence on payment of fee. This is being levied and there is no dispute about it. It is also clear that the Order, in terms does not even mention the 'vend fee, assessment fee and surcharge on assessment. These terms are used in the Rules. It is well settled principle that the taxing provision is to be construed strictly against the State and in favour of the citizen. It is also well settled principle that the tax can only be levied by an Act of legislature. It is equally settled that rules are subordinate legislation and are made by the Executive authorities to give effect to the parent statute. The Executive wing of the State has itself no authority to levy and recover the tax/fee. We asked the learned Additional Advocate General as to what service was being provided by the petitioner-Government-in return for the levy and recovery of vend fee, assessment fee; and surcharge etc. He could not point out any service being rendered in return. Clearly, although described as fee, these measures are tax and cannot be recovered by the Executive by framing rules to that effect.

7. There is another angle. According to Chambers Dictionary word "vend" means, "to sell or offer for sale, deal in" and its noun is "sale". The notification at page 70 of the paper book alstq shows that this fee is to be recovered at various rates per dozen quart. Apparently the subject of taxing sales falls within the domain of Federal Legislature. (See Fourth Schedule, Federal Legislature List Part-I Item-49). The learned Additional Advocate General was asked to show that the subject of taxing sale fell within the competence of Provincial Legislature but he could not show the same. It is therefore, doubtful if the Provincial Assembly could have levied this fee, much less the Sindh Government, simply by framing Rules.

8. The expression surcharge has been defined in the same Dictionary as: "to overcharge: to overload: to overburden: to overstock; to saturate: to charge with overwhelming force (Spens): to print over the original printing: to disallow: to exact a surcharge from, n. surcharge (or charge), an overcharge; an extra charge: an excessive load: an overloaded condition: an amount not passed by an auditor, which must be refunded: a new valuation or cancel-mark printed on or over a stamp: the earth supported by a retaining wall above the level of its top."

9. The levy and recovery of the amount under the heading Surcharge seems to be utterly without authority in as much as the parent statute viz. the Order does not confer the authority to recover such a surcharge.

10. The judgments referred to by the learned Additional Advocate General proceed on their own facts and do not help the learned Additional Advocate General on any of the points canvassed before us.

11. The impugned judgment of the High Court suffers from no infirmity or illegality. No case for grant of leave is made out. Consequently leave in all these petitions is refused and the same are dismissed. M.B.A./P-5/S????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.