ATTOCK PETROLEUM LIMITED (APL) vs NATIONAL HIGHWAY AUTHORITY S — 2022 PTD 222 LAHORE-HIGH-COURT-LAHORE

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ATTOCK PETROLEUM LIMITED (APL) VS NATIONAL HIGHWAY AUTHORITY S.10---National Highway Authority Regulatory Framework and Standard Operating Procedure for Preservation and Commercial use of Right of Way (ROW), 2002, Chapter X---Constitution of Pakistan, Arts.77, 199, Fourth Schedule, Part-I, Entries Nos.34 & 54---Fee, levy of---Principle---Promotional material---Petitioner was an Oil Marketing Company and aggrieved of notices for recovery of fee/tax on display of their promotional material on private properties at National Highways---Validity---Like tax, levy of fee also required enactment by appropriate legislature in the legislative field approved by the Constitution---In view of entry No.54 read with entry No.34 in Federal Legislative List, the Federation was competent to enact and levy fees in relation to services provided or rendered on National Highways and Strategic Roads---No specific clause exists in National Highway Authority Act, 1991, empowering Federal Government to levy any fee or charge on display of promotional material or hoardings--- In absence of any such provision including Ss. 10 & 12 of National Highway Authority Act, 1991, for framing of rules by Federal Government and chapter X of National Highway Authority Regulatory Framework and Standard Operating Procedure for Preservation and Commercial use of Right of Way, 2002 by the Authority were void and ultra vires the National Highway Authority Act, 1991 to the extent of levy of charge / fee on display of promotional material or hoardings on private property---No element of quid pro quo exists on the part of National Highway Authority and demand in question of fee/charge was without lawful authority and of no legal effect---High Court declared notices in question to be without lawful authority and of no legal effect and were set aside--- Petitioner could approach the Authority for refund of amounts if any, deposited with it towards charge / fee on display of promotional material on private property---Constitutional petition was allowed, in circumstances. Fiscal statute---Fee, charging of---Principles---One principle for charging of fee is quid pro quo i.e. charge payable for rendering specific service or extending specific privilege which the payers can avail subject to the conditions that may be attracted to it--- Such is known as 'fee-simplicitor'--- In such enactment, there is direct and immediate correlation in absolute terms between the service that is rendered and the fee that is charged for it---Other kind of fee-levying legislation is where Cess is imposed with distinction that it is imposed for achieving a specific purpose promised in the enactment itself which when realized, would bring same advantage or benefit for the payers in future---Such fee can be described as 'purpose specific' and in many judicial pronouncements have been termed as a 'Cess fee'---In such form of levy the specified purpose is pre-committed to the payers before the revenue is collected under the legislation--- In such form rule of quid pro quo does not exist in the same sense as it exists in a case where an existing service is rendered or a privilege is extended directly to the payer for a fee. Subordinate legislation---Scope---Rules and regulations are subordinate legislation which cannot go beyond the ambit and scope of parent statute---Mere fact that power has been conferred on the Authority to make rules and regulations does not authorize framing of delegated legislation that is inconsistent with or repugnant to parent Act---Levy of a charge, which falls within an essential legislative function cannot be delegated. Fiscal statute---License fee---Scope---License fee is charged to permit or allow a person to operate under a regulatory scheme or licensing regime---Such is quite distinct from 'tax', 'fee-simpliciter' or 'Cess-fee'---Such is Fee for conferring a privilege or license---For imposition of a license fee, it is imperative that there must be an enactment prohibiting general public from activity permitted under license. Fiscal statutes---Tax, components of---Scope---First component is the character of imposition known by its nature which prescribes taxable event attracting the levy; second is a clear indication of person on whom the levy is imposed and who is obliged to pay the tax; third is the rate at which tax is imposed and the fourth is the measure or value to which rate has to be applied for computing a tax liability---If such components are not clearly and definitely ascertainable, it is difficult to say that the levy exists in point of law---Any uncertain or vagueness in the Legislative scheme defining any of the components of the levy may be fatal to its validity. art.77---Tax, levy of---Principles---Tax is a compulsory exaction of money by public authorities, which form part of common burden for raising revenue and upon collection it becomes part of public revenue of the State---Tax is an attribute of sovereignty---Tax is a contribution to government imposed in common interest of all is for the purpose of defraying expenses incurred in carrying out public functions.

ATTOCK PETROLEUM LIMITED (APL) vs NATIONAL HIGHWAY AUTHORITY S — 2022 PTD 222 LAHORE-HIGH-COURT-LAHORE

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