MAHBOOB YAR KHAN Versus MUNCIPAL COMMITTEE

1. This is a petition under Article 199 of the Constitution by two persons residing within the limits of Municipal Committee, Mian Channu, District' Multan, for a declaration to the effect that the levy of fee @ 03 (paisa three) per rupee, i.e. Rs. 3 per hundred recoverable from the sellers of goats and sheep being charged by respondent No. 2, the auction-purchaser from the Municipal Committee, Mian Channu of the Sheep and Goats Market for the year 1974-75 (1-7-1974 to 3-6-1975) is without lawful authority and of no legal effect, and for a direction to the respondents to refrain from imposing and charging the said fee on the sale of goats and sheep etc. and running the Bakar Mandi.

2. The facts which form the background are that Municipal Committee, Mian Channu, ear-marked a new place, distinct from the existing place where a cattle fair is held (for three days in a month), to permit daily sale and' purchase of sheep and goats, and in this connection a new tax was proposed in the Budget for the year 1974-75 for levy of fee of Rs. 300 on sellers in the aforesaid Bakar Mandi. It is now an admitted position that the procedure prescribed by the Municipal Administration Ordinance, 1960 (hereinafter' called the Ordinance) for imposition of a tax has not been followed in regard to this levy. The position of the respondent Municipal Committee is that the inclusion of the item of Bakar Mandi in the Schedule of new taxes, for the year 1974-75 was on account of a mistake and that this proposal was withdrawn vide letter of the Administrator, Municipal Committee dated 29-7-1974 to the Deputy Commissioner/Controlling Authority, as, subsequently, it was found that the levy of fee on the sale/purchaser of sheep goats in the Bakar Mandi was covered by the terms of an existing bye-law, made by the Municipal Committee for Mian Channu on 25th March 1941, in exercise of the powers conferred by sections 187, 188 and 199 of the Punjab Municipal Act, 1911. The relevant portion of this notification reads as, follows;----

2. "Bye-Laws:

(1) Any person who exposes cattle for sale at any cattle fair on which the Committee has incurred expenditure under clause (j) of sub section (2) of section 52 of the Punjab Municipal Act, 1911, shall pay to the committee a fee at the rate of six pies per rupee on the sale price of each head of cattle so sold."

3. The main question is whether the above bye-law covers the levy ,imposed on the sale and purchase of sheep and goats in the new Bakm Mandi.

3. In this connection the learned counsel for the petitioners submitted, in --the first place, that the bye-law in question was ultra vires of the provisions of the Punjab Municipal Act since repealed. The argument was that the bye-law in question was not consistent with the provisions of section 187 of the Punjab Municipal Act. This section reads as under :-

4. "187. A committee may, with the previous sanction of the Deputy Commissioner, or, if the Deputy Commissioner is a member of the committee, of the Commissioner, levy small fees from each person attending a fair on which the committee incurs expenditure under section 52(2) (j) and from persons exposing goods for sale and all persons plying any occupation for gain (except water-carriers, scavengers, and others employed in connection with the fair) for defraying the cost of sanitary arrangements, wit--h and ward and the like."

5. 'Reference in the above section is made to, section 52(2)(j ), which is in the -following terms :---

6. "52.-(1) The committee shall set apart and apply out of the municipal fund.

(2) Subject to the charges specified in subsection (I) and to such rules as the local Government may make with respect to the priority to be given to the several duties of the committee, the municipal fund shall be applicable to the payment, in whole or in part, of the charges, and expenses incidental to the following matters within the municipality, and with the sanction of the Commissioner outside the municipality, namely-

7. Q) the holding of fairs and industrial exhibitions.

8. A reference of the bye-law has been made also to section 188, the pertinent part of which reads as follows

9. "188. A committee may, and shall if so required by the local Government, by bye-law,-

(e) provide-

(iv) for the holding of fairs and industrial exhibitions within the municipality or under the control of the committee, and for the collection of fees under section 187."

10. The argument was that under the above provisions of law the levy must 'be in respect of a cattle show which could be charged from persons attending or exposing goods for sale, whereas the Cattle Fair Bye-Laws of 1941 authorized the Committee to provide for fee on the sale price of each head of cattle sold in the Cattle Fair although animals (like sheep and goats) are not goods.

11. In my opinion, the above point is not strictly relevant for the decision of this case, and the real point that falls for determination is whether the Cattle Fair Bye-Laws of 19411 cover the case of the new Bakar Mandi, that was established as from 1-7-74.

12. It is common ground that the new Bakar Mandi is a "market" within the meaning of section 3(1)(22) of the Municipal Administration Ordinance. This term is defined as follows in section 3(1)(22)

13. Market' means a place where persons assemble for the sale and purchase of meat, fish, fruit, vegetable, or any other article of food or for the sale and purchase of livestock or animals and includes any place which may be notified as a market in accordance with the rules."

14. In the Punjab Municipal Act the word "market" was not defined and the said expression was included in the term "fair". A "fair" conveys the same idea as a "market" which is generally a place set apart for a concourse of buyers and sellers held often enough to meet the daily or weekly needs of a locality, while the term "fair" is usually employed for a concourse of buyers and sellers, which arises once or upon few occasions only during the year. Every fair is a market, but every market is not a fair. A market is generally held more frequently than a fair; and the word "fair" is derived from the Latin word feria, which signifies a holiday and is marked by amusements, which are usually provided when fairs are held. Consequently though a market is not the same thing as a fair, but a "fair" is nontheless a market. Thus the term "fair" used in section 187 of the Punjab Municipal Act was comprehensive enough to include a "market " In this connection, the learned counsel for the Municipal Committee invited my. attention to a notification dated 20th May 1920, issued by the then Government of the Punjab, where under various categories of fairs, which could be held by the Municipal Committees of various Divisions of the Punjab, were specified. In the Schedule attached to the said notification a reference was made to commercial fairs, religious fairs and other categories of fairs. It is thus evident that the Legislature while providing for section 187 in the Punjab Municipal Act intended it to comprise all categories of fairs including fairs held for the sale and purchase of articles of food and for the sale and purchase of livestocks and animals, which have been termed specifically in the Municipal Administration Ordinance as "markets".

15. The Cattle Fair Bye-Laws of 1941 having, inter alia, been made under sections 187 and 188 of the Punjab Municipal Act, authorized levy of fees from the persons attending a fair (which has been held to include a "market") or from persons exposing goods for sale in a fair. There is hardly any dispute that the term "cattle" includes sheep and goat. (See Prem's Judicial Dictionary, page 306, Vol I). In the West Pakistan Municipal Committee (Cattle-,Market) Rules, 1959, "cattle market" is defined, inter alia to mean a place where people assemble for sale or purchase of animals. And "small animals" include, in the said Rules, goats and sheep. The other argument that goats do not include animals is also without force. The second meaning of goods, according to Webster, as quoted in Prem's Judicial Dictionary (page 757 Vol. II) is "Personal or movable assets, as horses, cattle, utensils etc." Goods thus means such things as can ordinarily come to a market to be bought and sold. It follows, therefore, that the Bye-Laws of 25th March 1941. fully cover the levy of three paisas per rupee which is charged on the sale price of each head of sheep and goat.

16. I may mention that it was brought to my notice that ever since the Bye-laws in question were notified on 25th March 1941, a cattle fair has always been held within the limits of Municipal Committee, Mian Channu. In the said cattle fair all kinds of animals. big and small, including sheep and goats, had been brought for sale and since that day the respondent Municipal Committee has been charging the fee in question @ three paisa per rupee on the sale and purchase of each head of sheep and goat. The only change which occurred in 1974 was that the respondent Municipal Committee allocated a separate area for holding a market for sheep and goats, because the market being held before, for a few days in a month only, could not cater for the requirements of the people of the area. For this reason as separate place was ear-marked for holding a market for sheep and goats, where it could be held more often than the fair/market for other categories of cattle. This change in the location of the fair/market did not in any way alter the legal position or take away the power of the respondent Municipal Com mittee in so far as the question of levy of the fee in question was concerned 1 Thus the argument that the change of the location of the market, especially for sheep and goats, resulted in the withdrawal of the power of the respondent Municipal Committee to charge a fee is misconceived and without merit.

17. The learned counsel for the petitioners, however, argued that the Bakar Mandi in question was a permanent market while the cattle fair, which was previously being held, was on a periodical basis, which indicated that the two were different entities. According to him, this submission was supported by the provisions of the Municipal Administration Ordinance, wherein fairs and markets have been dealt with as two distinct matters. In this connection reference was invited to items 20 and 21 of the Third Schedule to the Municipal Administration Ordinance, and it was pointed out that item 20 dealt with fees at the fairs etc. while item 21 dealt with the fees at the markets. It was, accordingly, contended that to intermingle the terms "fair" and "market" was not justified. It was further submitted - that the Cattle Fair Bye-Laws of 1911 were inconsistent with the provisions of the Municipal Administration Ordinance and thus could not be enforced so as to impose a fee on the market, or to run a Bakar Mandi, in view of the provisions of section 4(2) of the Municipal Administration Ordinance, 1960.

18. It is true that under section 4(2) of the Municipal Administration Ordinance only those bye-laws issued under the repealed Punjab !Municipal Act can be enforced, `which are not inconsistent with the provisions of the Municipal Administration Ordinance, but the question is whether it can be held on the reasoning, advanced above, that the Cattle Fair Bye-Laws are inconsistent with the provisions of the Municipal Administration Ordinance.

19. The market in question is a public market. Section 63 of the Municipal Administration Ordinance deals with public markets, and the relevant part of it reads as under :

20. "Section 63. Public Markets.-(1) A Municipal Committee may establish and maintain public markets, or may provide places for use as public markets, for the sale of articles of food and drink and of animals, and secure the proper management and sanitation of such markets.

(2) A Municipal Committee may, in respect of public market provide, by bye-laws-

(d) the fees to be charged in respect of animals brought for sale or sold "

21. Section 72 deals with cattle shows etc. and the relevant part of it reads thus :

22. "Section 72. Cattle shows, zoos, etc.-(1) A Municipal Committee may hold cattle shows and fairs within the limits of the Municipality and charge such fees from the people attending such shows or fairs as the bye-laws may provide."

23. A perusal of the above provisions of law reveals that section 72 provides for the holding of cattle shows and fairs by the Municipal Committee and the fees have to be charged from the people attending such shows or fairs, in pursuance of the bye-laws which may be framed by a Municipal Committee. 'Section 63(2)(d), however, envisages the levy of fees to be charged in respect of animals brought for sale or sold. It having already been held that the cattle "fair" in the Bye-Laws of 1941 would include a cattle "market", the provisions of the bye-laws in question are directly relatable to the provisions of section 63(2)(d). Obviously, therefore, the Bye-Laws of 1941 were enforceable under the saving clause contained in section 4 of the Municipal Administration Ordinance.

24. Another contention that was pressed by the learned counsel for the petitioners, was that even if it was assumed that the Cattle Fair Bye-Laws of 1941 applied to markets. these stood superseded by the promulgation of .the West Pakistan Municipal Committees (Cattle Market) Rules, 1969 (hereinafter referred to as the Cattle Rules of 1969). These Rules have been framed in exercise of the powers conferred by section 121 of the Municipal Administration Ordinance, read with item No. 35 (f ) of the Fourth Schedule thereof. In so far as under section 121 of the Municipal Administration Ordinance the Government can make rules to carry out the purposes of the Ordinance and under section 122 thereof a Municipal Committee may, if required by the Government, make bye-laws not inconsistent with the rules, to carry out the purposes of this Ordinance, the Bye-Laws of 1941 would be of no avail if they are inconsistent with the Cattle Rules of 1969.

25. Rules 4 and 5 of the Cattle Rules of 1969 are relevant in this context, which read : '

26. "(4) A cattle market shall remain open for daily transaction for such hours as may be fixed by the Municipal Committee.

(5) The following fee shall be charged for every animal admitted in a cattle market :-

(i) Big animal . . . . . Twenty paisa per day or part thereof.

(ii) Small animal . . . . . Six paisa per day or part thereof."

27. A close reading of rule 5 reveals that it merely specifies a fee for the ,admission of the animals in a cattle market, but does not prescribe fee which can be charged on the sale of the animals (cattle) as provided in the Bye-laws .of 1941. It can not, therefore, be held that the Bye-Laws of 1941 have been superseded by the Cattle Rules of 1969 and have lost their legal existence. I hold, therefore, that the Bye-Laws of 1941 are still in force as they can co-exist with the Cattle Rules of 1969 and have not been superseded by them.

28. The other contentions raised in support of the writ petition may now also be briefly noticed. It was argued that the levy in question was a tax and not a fee and, therefore, without complying with the prescribed procedure for imposing a tax, the impugned levy was not sustainable in law.

29. The distinction between a "tax" and a "fee" is well established. A tax is a compulsory exaction of money by public authorities for public purposes enforceable by law and is not a payment for services rendered. The main distinction between them lies primarily in the fact that a tax is levied as a part of common burden, while a fee is a payment for a special benefit o privilege-(See Abdul Majid v. Province of East Pakistan P L D 1960 Dacca 502 and Muhammad Ismail & Co. Led. v. Chief Cotton Inspector P L D 1966 S C 388).

30. In the instant case it is not denied that the auction amount for the market shall form part of the income of the Municipal Committee. The said Committee is providing a place, where the market can be held, to enable the residents of the area to buy and sell sheep and goats. Thus it is providing a facility to the sellers as well as to the buyers. A service is clearly being rendered to them. The money to be collected, moreover, is not a part of a common burden. In these circumstances the levy would be a "fee" and: not a "tax."

31. It was also argued that the levy was in fact, in the nature of a sales tax and that after the promulgation of the Constitution of 1973 no Municipal Committee could impose a sales tax. Attention in this connection was drawn to the provisions of the Constitution. It is, however, not necessary to refer to them, because it has already been held that the levy is not a "tax" at all, but only a "fee" and, therefore, the question whether it was a sales tax or some other type of tax does not arise.

32. In the end, it was argued that the impugned action was mala fide, and in support of this submission reliance Was placed on the circumstance that the levy was included in the proposed new taxation but subsequently a totally different stand was taken that all this was a mistake. Attention was 'drawn to the case of Murree Brewery PLD1972SC279. A perusal of this judgment shows that it is not at all relevant in the present context. Here the power to levy the fee in question already existed and the proposed taxation was unnecessary and redundant. There is no force in the plea of mala fides.

33. The over-all conclusion is that this writ petition must fail. It is hereby dismissed, leaving the parties to bear their own costs.

34. K. B. A. Petition dismissed.