Abdur Rehman Vs Secretary Local Government, Civil Secretariat, Peshawar & others

Judgment Sheet

IN THE PESHAWAR IIIGH COURT PESHAWAR

JUDICIAL DEPARTMENT

q Writ Petitlon No.2656-P/2O23

TADGMENT

Date of hearing 18.3.2024

Petitioner.

(Abdur Rehman) By: MnMaqsood Ali, advocates' Resoondents.

(Secretary Local Govt etc ): By: Mr.Taskeenuddin Khattak, AAG. Mr.Siksndar Rashid, advocate, for respondents No.6 & 7.

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wrGuR AHIAAD. J.- Through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, petitioner has prayed for following relief:- "It is therefore, humbly prayed that on acceptance of this writ petition, the respondents No.3, 4 and 5 may kindly be directed not to interfere in the legal business i.e. Yehicle Weighing Station of the petitioner situoted at Basay Baba Ghar, Shalobar, Barawhich comes within the territorial jurisdiction of Town Municipal Administration, Bara."

M.IshaqShoh, AH26562023) (DB) Iloa'ble Ml'asttce Sfed ABhd All Hon'ble Mr.Juglce tnqat Abrrad

2.Facts as narrated in instant petition are that petitioner applied to respondent for issuance of NOC for the establishment of Vehicle weighing Station within the tenitorial jurisdiction of Tehsil Municipality of Bara, District Khyber which was granted by respondent No.2 after fulfilling all legal and codal formalities. That after getting NOC, petitioner spent almost Rs.5 crore by importing said machine and was running his business smoothly in accordance with law when respondents No. 3 & 4 through their subordinates started creating hurdles in the business of petitioner' one way or the other, despite the fact that they had got no authority to interfere in the legal business activities of petitioner. Comments were called from the respondents No. 3 and 4 which have been furnished. Respondent No.2 i.e. TMO Khyber has also filed his comments separately.

3.On 11.1.2024, this court while ordering impleadment of Chairman National Highways Authority and Pakhtunkhwa Highways Authority in the panel of respondents, had directed leamed counsel representing the parties to assist the court on the point that under which law Weight machines had been installed by the petitioners at the spot and the interim order passed in favour of petitioner on 31.8.2022 was also recalled. Today, learned counsel for the National Highways Authority, namely Mr.Sikandar Rasheed appeared but no one appeared on behalf of Pakfrtunkhwa Highways Authority' Learned counsel for petitioner stated that the petitioner has instructed him to withdraw the instant petition but said request was declined due to peculiar circumstances of this case and he was directed to argue the M.hhoqShoh, (lfP#26562023) (DB) Hon'blc Mt tu ce Sf.d l$hsd AII Hoa'ble Mt taglac rnq$lhnd

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case , particularly on the issue whether petitioner was legally entitled to compel vehicles plying on the road to utilize his weight station and pay fee thereof. He submitted in his arguments that petitioner has been authorized by TMA Bara for collection of fee and therefore same was lawful under the law. Leamed counsel for the TMA also stated that TMA was authorized under the Local Govemment Act to collect the levy and they had outsourced same after receipt of application from petitioner for allowing him to install the weight station and do his lawful business therein. Learned counsel further argued that petitioner was lawfully conducting business on the spot. Mr.Sikandar Rashid, Advocate, representing the NHA, stated that weight stations have been installed by NHA on those roads which have been constructed by NHA or were under their control and they were responsible for its maintenance etc. He also added that NIIA had itself constructed its weight stations on various national Highways. While explaining the purpose of establishing weight stations, he contended that such weight stations are established for the purpose of checking weight of vehicles so as to save roads from being damaged from ovenveight vehicles.

He also contended that no other body has a right to either establish/operate or outsource establishment of weight station on National Highways which are under the control of National Highways Authority. Learned AAG argued that petitioner wEts illegally collecting money and the local police/District Administration have rightly intervened and obstructed him from collecting fee from the local people using road.

M.Ishaq,hqh, (WP#2656aU21) (DB) Ilon'ble Mttudcc Syd Arrhad All Ilon'blc lllr.Jastlcc Wqqt Almd

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5.Arguments heard and record perused

6 Perusal of record reveals that it was petitioner who had been instrumental in initiating the process of establishment of weight station. He had filed an application before the TMA authorities, contents ofwhich are reproduced for ready reference:-

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Thereafter, a contract has also been executed between TMA Bara through TMO of the Administration, authorizing the Lt,I$aq Shatt, (VP 2656/202t) (DR) fioa'blc Mt Judcc Std Anhd Alt Eon'ble MitudtQ Wtq$ Atn d

petitioner to install and operate said machine and receive fee from people using the road. DPO Khyber/respondent No.4 as well as Deputy Commissioner Khyber have stated in their comments that petitioner was forcefully taking money from local transporters on the main road outside the area of weight station while violating the agreement dated I .12.2021. It was also stated that the Assistant Commissioner had himself caught agent of the petitioner on the road while extorting money from the transporter of Takhta Baig and in this respect an FIR had also been registered which has been enclosed with comments as Annexure-B. In ground-C & D of the comments, said respondents have also stated as under:-

nPara-C of the ground is incorrecl. The petitioner fraudulently obtained NOC from respondent NO.2 while violating law mentioned in Customs Act as well as NIIA rules and withoul having the consent of the local Administration and Police department. Being Head of the Local Adninistralions it is duty and obligations of lhe answering respondents to stop all the illegal activities alfecting the society al lorge. Moreover, this Hon'ble Court also directed the respondent No.3 in writ petition NO.1464-P/2011 daled 15,10.2020 to ensure that no vehicle is charged in any manner for more than what the law of land has imposed and also directed the respondent No.3 to check the activities of the Law Enforcing Agencies as well and to ensure thal none of the transporters are harussed in any monner. (Copy of judgment order dated 15.10.2020 render in l{rit M.IshoqShah, (lYP#2656/2023) (DB) Hon'Ue Mt la ce SYed *shad AA Eon'ble MrJustlce Wiqar Ahmad

Petition No.1464-P2011 is annexed as Annexure- c).

Para-d of the gtound is correct to the ertefi of letters whereby it is requested to ef,end legal co- operotion with the petitioner in respect of vehicle weighment station. However, it does not mean that the petitioner may allow lo carry illegal business in the administrative area of Dislrict Khyber. The petitioner is intentionally, illegally and unlawfully abusing the onswering respondents with the intent to allow them to get ertoflion of money from the vehicle running on the main High way."

7.TMO . i.e. respondent No.2 have stated in their comments that they had issued NOC for carrying business on 2.12.2021but later on Deputy Commissioner had sent a letter regarding involvement of petitioner in illegal activities , therefore, he had wanted to cancel the NOC but petitioner obtained interim order from this court and due to same, the NOC could not be cancelled. In rest of the replies , it is also stated that TMO had issued NOC to the petitioner for carrying his legal business. TMA authorities were under misconception that installing a weight machine on road side was a business and that petitioner had a right to install such weight station and collect money from persons using the road. When learned counsel representing the TMA was asked as to whether the road has been constructed by TMA or that TMA was responsible for its maintenance, his reply was in negative. The road is under the domain of Palhtunkhwa Highways Authority. Its construction, M.IshaqShsh, (YN26562023) (DB) Hon'ble Mr.tufice Syed Ar&od Alt Hot'ble Mr.Jusdcc mqqr Ahmad

repair or maintenance is supposed to be conducted by the provincial government through Pakhtunkhwa Highways Authority. The TMA has nothing to do with same. In such situation, weight station, if required for checking overweight vehicles was also supposed to have been established by the Pakhtunkhwa Highways Authority itself or under authoriz-ation of the authority. If the road was getting damaged due to overweight vehicles, this was not a cause of grievance for the petitioner or even of TMA. At no point of time, Pakhtunkhwa Highways Authority had ever granted permission for the establishment of weight station to the petitioner. When Leamed counsel for petitioner was confronted with this situation, he had no plausible answer but he instead produced a copy of letter of Executive Engineer Highways Division Khyber dated 26.2.2024 showing schedule of maximum weight load for various types of vehicles. Such letter is also allowed to be placed on file. Perusal of same reveals that it was just providing details of the allowable weight for different types of vehicles but also appears to have been obtained by petitioner with an effort to hide the illegalities, he had been committing. It is strange that the XEN without any authorization from the Pakhtunkhwa Highways Authority have fumished such notification on the demand of petitioner who had been found carrying illegal business by extorting money from the transporters of the area. No tax can be imposed on such vehicles except by a forum expressly authorized by a law. So far as collection offee is concerned, there also existence ofquid pro M,IshoqShoh, (WP{26S6D023) (DB) Eorr'ble Mnla ce Sfed Anhod AA Hon'ble Matu cc mqar,lhmod

quo for collection of such fee was sine qua non. Reliance in this respect is also placed on the judgment of Honourable Supreme Court in the case of F'ederation of Paki stan v. Durrani Ceramics (2014 S 1630) as well as judgment of Honourable Apex Court in the case of Mes srs Lu ckv Cement Facstorv Limited and others Vs The Government of N.W.F.P. throueh Secretarv Local Government and Rural development Department. Peshawar and toehrs renorted as 2013 S C M R - 1511. No services were being extended by TMA for construction or maintenance of the road They had got no concem with weight of the vehicles. The agreement executed by them as well as NOC granted by them were totally divested of any legal authority and same are declared to be without lawful authority, null and void. Petitioner shall, however, have no claim against the respondents as he has been illegally extorting money from the people. What has been done that is to be teated as past and closed transaction and no action for recovery against petitioner or TMA on such score, may be made. The respondents shall be duty bound to protect the transporters and people of the locality from the burden of the unlawful levy

8.Before parting with judgment, it needs to be mentioned here that in the newly merged districts, such like practices are being carried out on one pretext or the other and people are being compelled to pay money to various agents of contractors and other officials without there being any lawful tax or fee M.Ishuqshah, (WP#2656/2023) (DB) Eon'ble Mhlastlce Sye.l Arshad AU Ilor'ble Mr.Juslce Mqat Almad

imposed in lawful exercise of authority. This appears to have been a practice continuing from the past. In the past jurisdiction of this court was not extended to the Tribal areas and same was being govemed in an inegular manner of administration where people had got no mechanism for enforcement of their fundamental righB. There was no concept of accountability either. With promulgation of 25fi amendment in the Constitution, tribal areas have been merged in the province of Khyber Pakhtunkhwa and same are to be govemed under the constitution and law. Past practice of collecting money from people on pickets and barricades or otherwise (even existing in the past )may not be allowed to be continued in future. In the case of National Commisson on Status of Women throuph Chairnerson and others Vs G oe rn ment of Pakistan throuph Secretarv Law and Justice and others asPLD- 2019 - Supreme Court - 218 ). the Honourable S upreme Court of Pakistan has held that residents of FATA could not be distinguished from rest of the Province of Khyber Pakhtunkhwa and that the people in FATA were supposed to be subjected to same legal regime after enactment of 25ft constitutional amendment to which rest of the province was subject. Relevant observations given in this respect by the Honourable Supreme Court ofPakistan are also reproduced here under:- "Whether they be residents of FATA on one hand or of Peshawar or Mardan, etc, on the other, they cannot be discriminated against and any classiftcation M.LaqShah, (WPH26562023) (DB) Eon'ble Mntudice Syed Arshad Ali Hol'Ue M\taglcc Wlqat Ahfiad

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between them despite being residents of lhe same Proince, with no obvious or reasonably deducible distinction between them, will be arbitrary and against the recogniged principles of nolural iusfice ond the rule of law. Thus, with the ,nerger of FATA in the Province of KPK, by applying the ratio of Azizullah Memon's case (supra), it becomes expedient to ensure thot all the restdents of the Province of KPK (including the people of the erstwhile FATA) do not face any discrimination on the bosis of their residential location and are accorded equal protectiuon of the law, and their tight to fair trial' access lo courls and due process ore secured."

g. We in the circumstances, deem it imperative to circulate this judgment to all the administative officers and police officers working in the merged districts with directions to ensure that no tax or fee is received from the people or transporters which is not having any backing of law' If any such practice is found in future to have been authorizedby any officer in govemment service, same would amount to misconduct on his part besides constituting contempt of this court and the delinquent may accordingly be proceeded against' Registrar of judgment to this court is therefore directed to send copies of this all the administrative officers and DPOs of merged districts for

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compliance.

JUDOE

Drtc of hc.dng & lnnounccmcDt ofJudgmcnt '....... lE 3'2024

Drtc of Prcprrrtion rnd Slgning ofJudgment 29.3,2024 J GE

(DB)Hon Ll^lunlce Sfed Anhd Alt M.lshaqShah, (VP12656/2023) Hon 1l!r, J uglc e W7 qat Ah mad