2013 PLP 2202 (CLD)

IJAZ AHMAD, J.

Impugns the notices dated 2-10-2012 and 10-10-2012 issued by respondent No.2 requiring the petitioner bank to pay the advertisement charges for the year 2012, 2013 leviable on advertisement boards, neon signs, plastic signs, wall chalking, hoardings and tin boards, etc.

2. The petitioner is a Banking Company incorporated under law. It uses signage and other advertisement devices on its own immoveable property or the rented property in order to attract the customers and to create a brand image. The Cantonment Board (CB) Rawalpindi, Cantt. respondent No.2 is a local authority having been assigned certain duties and discretionary functions under Chapter VIII of the Cantonments Act, 1924. Through the impugned notice, the petitioner has been asked to pay the advertisement charges.

3. It is contended by the learned counsel for the petitioner that the petitioner being a limited company is duty bound under section 143 of the Companies Ordinance, 1984 to display its name outside its every office or the place in which it runs business, in a conspicuous position. The non-publication of the name in the above said manner is punishable under section 144 of the said Ordinance. The petitioner cannot be penalized or made to pay the tax for displaying its name in accordance with the law; that respondent No.2 has not framed any bye laws for imposition of tax on the advertisement boards, neon signs etc.; that any rules or bye laws if framed, have not been publicized. The said respondents cannot levy and receive the tax. Relies on "2006 CLC 1674" titled Station, Commander, Chaklala Cantt., v. Col. (R) Muhammad Abbas Malik "2007 CLC 35" titled Messrs Ace Quality (Pvt.) Limited through Chief Executive v. Tehsil Municipal Administration, Multan Saddar through Nazim and 3 others "2011 MLD 1987" titled Messrs Coca-Cola Beverages v. Cantonment Board Chaklala, Rawalpindi and others. Further contends that respondent No.2 is not providing any service or any space for the posting, or affixing or displaying the advertisement devices, therefore, cannot demand the payment of the tax. Relies on "2011 MLD 1987". Further contends that although respondent No.2 has the authority to award and execute the contracts under Chapter VII of the Act of 1924, ibid, yet the contracts can only be awarded for the purposes of this Act that involve the technical skills and not for avoiding the encumbrance.

4. On the other hand, it is contended by the learned counsel for respondent No.2 that in exercise of the powers conferred under sections 282 and 283 of the Cantonments Act, 1924, the Cantonment Board under para. 4 of the bye laws made and notified in the gazette dated 21-1-1939 after approval from the Central Government and amended on 1-4-1976 authorizes the CB to levy and collect the charges and tax on the advertisement made through any device; that any function to be performed by the CB may be performed through a contractor, who in the instant case is respondent No.3, as provided under Chapter VII of the Act ibid; that even if the petitioner is bound by law to display its signage, it is not absolved from the payment of any charges due; that the petitioner if wants to escape from the liability should reduce the size of boards and signage, etc. to 20 square feet which is exempted from any charges and tax, etc. vide CBR No.59 dated 26-9-2008. Relies on the judgment dated 2-4-2008, passed in W.P. No. 322 of 2004 titled "Messrs Haidri Beverages (Pvt.) Ltd. v. Office of the Cantonment Board Rawalpindi through its President and another", wherein it has been held that the respondent therein will not be charging any advertisement fee otherwise than in accordance with law.

5. I have heard the learned counsel for the parties and also gone through the record.

6. The petitioner, a Limited Company, though under an obligation, under section 143 of the Companies Ordinance, 1984 to display its name on a conspicuous place, cannot be said to be absolved of the payment of any charges, if due under law. The CB under sections 282 and 283 has the powers to make bye-laws and according to the learned counsel for respondent No.2 it has made the bye-laws in the year 1939 amended on 1-4-1976. The bye-laws deserve a perusal. The original bye laws lay down that the CB may provide suitable places for notice boards in uniform size. If someone uses such notice board, the CB may charge the fee. Paragraph No.5 of the bye laws lays down that where such place has been provided by the CB, no person shall without the permission of CB, post or affix any notice on the places mentioned therein or other immoveable property belonging to the Government. The amended bye laws have substituted "any other immoveable property belonging to the Government" by, "or any immoveable property". In case of the original bye laws or the amended bye laws, there is the pre-condition of providing the suitable places for affixing or posting or displaying any advertisement or bill boards, etc. When this pre condition is not fulfilled, no space is provided and no service is provided by CB, no fee and tax can be collected by it. The providing of the spaces is a sine qua none for imposition of the tax. This is where the principle of quid pro quo comes into play. The charges or the fee is the imposition of a toll to defray cost of a particular service rendered.

7. A contract is permissible under Chapter VII of the Act of 1924, ibid. It covers that category of contracts only which are necessary for the purposes of the Act. The purposes and discretionary functions of the Boards are provided under Chapter VIII of the Act. It does not include the collection of the charges, fees and taxes. This activity cannot be entrusted to a 3rd person on a contract. The Local Councils who are answerable to the people have, by the long standing practice leant the art of delicately dealing with the people. A contractor is not answerable to the people. He has learnt only one thing, how to extort the money. The way a contractor demands the Tax etc., adds an element of contempt and aggression to the demand. "2010 YLR 2543" titled Muhammad Munir Abdullah v. T.M.A. and others is relied. The collection of the advertisement fee, if permissible under law, cannot be entrusted to a contractor, respondent No.3. Respondent No.2 is restrained in future from entrusting its duties to the contractors. The assigning of the contracts should be constricted to those functions only which require the application of technology and scientific know-how and which cannot be performed by a non technical employee of a Local Council. Reliance is placed on "2004 YLR 366" titled Messrs Shamim and Co. v. Tehsil Municipal Administration, Multan City through Nazim and 2 others, and "2005 MLD 1520" titled Arbab Contracting and Co. through Managing Partner v. Tehsil Municipal Administration Multan and 2 others.

8. Section 143 obliges a limited company to display its name outside its every office or places in which it carries on its business in a conspicuous position. The bye laws notified on 21-1-1939 and amended on 1-4-1976 require a CB to provide at suitable places, the public notice boards of uniform size. It shall provide the places of uniform size within its limits for display of the names and the boards by the persons and the companies desiring to display their adds and names and then ask for the payment of the charges if the notice board so provided are used by the people. The size of the Boars shall be affixed keeping in view the safety of the property and the lives of the people who are prone to the serious damage that may be caused by a hurricane or a windstorm. The big size of the boards is not necessary for making it conspicuous. The conspicuousness is a relative term. A Board otherwise of quite a big size will go unnoticed when placed amidst bigger Boards. Only the uniformity in the size of the Boards can provide the conspicuousness.

9. For what has been discussed above, the impugned notices requiring the petitioner to pay the advertisement charges without providing any space or services are declared illegal on the principle of quid pro quo as enunciated in "2001 MLD 1987" and "1999 PLC (C.S.) 1173" titled Azad Government of the State of Jammu and Kashmir through Chief Secretary Azad Kashmir Government, Civil Secretariat Muzaffarabad v. Haji Mir Muhammad Naseer and others. The respondents shall take immediate steps for fixing a possibly uniform size of the boards etc., keeping in view the safety of the life and property of the people and the bad look, the titanic boards give to the town. This petition stands accepted. SAK/D-2/L Petition accepted.