ROOHULLAH Versus GOVERNMENT OF KHYBER PAKHTUNKHWA

MUSARRAT HILALI, J.--- This petition is with the prayer for declaring the impugned Notification dated 31.8.2010 as illegal, ultra vires, without jurisdiction, without lawful authority and of no legal effect having been issued against the spirit of Fisheries Ordinance and Rules of 1976.

2. Facts of the controversy is that the petitioners are dealing in cooked and uncooked fish business at Ghantaghar Bazar, Peshawar and earning their livelihood in the said business, which are mainly supplied from the Province of Punjab and Sindh Fish Farms by the local dealers; that the petitioners are paying different kinds of taxes such as license fee, profession tax to the town Municipal Administration; that in the year 1961, the Government of West Pakistan had promulgated an Ordinance known as West Pakistan Fisheries Ordinance, 1961 to protect the catching/hunting of fish in the public water from unauthorized persons and also framed rules thereunder, which are called Fisheries Rules, 1976; that recently respondent No.1 has issued a Notification dated 31.8.2010 whereby certain amendments in the rules were made; that the petitioners being aggrieved from the impugned Notification having no other adequate remedy approached this court under its constitutional jurisdiction for declaring the impugned Notification to be illegal and against the mandate and spirit of the Fisheries Ordinance and Rules, ultra vires of the Constitution and in conflict with the law and constitutional provisions.

3. Learned counsel for petitioners contended that the impugned Notification of amendment of Rules issued by respondent No.1 is based on mala fide intention, thus, requires to be set at naught; that the Fisheries Ordinance, 1961 and the Rules made thereunder are applicable to the public waters to protect the catching/hunting of fish from unauthorized persons and are not applicable to the commercial market; that the petitioners are paying different kinds of taxes such as professional tax, license fee to the Municipal Administration and the imposition of another tax through the impugned Notification in the garb of license fee and that too in the commercial market is not sustainable nor it could be imposed through Notification by merely inserting amendment in the Rules; that for imposition and levy of tax, the Constitution has provided its mechanism, which has not been adopted by respondent No.1 while issuing the impugned Notification, therefore, the Notification on the basis of which the tax has been imposed is unwarranted and is in conflict with the mandate of Ordinance of 1961 and Rules of 1976, hence liable to be struck down; that the imposition of tax through the impugned Notification is also against Article 128 and fundamental rights guaranteed by the Constitution of Islamic Republic of Pakistan, 1973; that no tax under the Constitution could be imposed or levied through amendment in the Rules or Notification by the Secretary of the Government but it is the sole domain and authority of the Provincial. Assembly by presenting a Money Bill in the Assembly and passing of such bill, then it could be imposed or levied, therefore, the impugned Notification being illegal and without jurisdiction be declared as such.

4. Conversely, learned AAG contended that respondents have not imposed any new tax on the petitioners rather an amendment has been made in Rule 7(1) Clauses I to VI of the Fisheries Rules, 1976 whereby the petitioners would be required to have a license for selling fish; that Government of Khyber Pakhtunkhwa is spending a huge amount on promotion, conservation and management of public water resources of the Province; that the amount of fee is very meager as compared to the enhancement in the rates of fish and the income of fish seller through cooked and uncooked fish; that under section 26(1) of the West Pakistan Fisheries Ordinance, 1961 the Government of Khyber Pakhtunkhwa is competent to amend Fisheries rules/enhancement in license fee and compensation etc; that the amendment has been made after adopting proper procedure, therefore, in the circumstances the impugned Notification is in accordance with law and rules on the subject.

We have heard learned counsel for the parties and gone through the record appended with this petition.

5. The object of the Ordinance is to provide for the management, conservation, development and protection of Fisheries and water resources. In order to protect illegal and unregulated fishing, the Authority issue license or permit under rule 3 of the West Pakistan Fisheries Rules, 1976. The said rule is reproduced hereunder:-

Rule 3:- Authority to issue license.

"All the licenses under these rules including seasonal, monthly and daily license to fish in the waters by Director of Fisheries or any other officer authorized by him in his behalf on payment of fee prescribed under these rules".

Further rule 7(1) provides for the fee charged on various type of licenses details whereof are as follows:-

(i)

For all kinds of nets except those mentioned in clauses (iii), (iv) and (v) below.

Rs. 35.00 per season in all waters.

(ii)

For rod and line fishing only

Rs. 12.00 per season

(iii)

For dip net (Kurli)

8.00 per season

(iv)

For hand net (dhangha) fishing only.

10.00 per season

(v)

For casting nets fishing only.

20.00 per season.

(vi)

For long line with maximum of fifty hooks (lang) only

15.00 per season

6. The respondents in order to amend the Rules mentioned above have issued the impugned Notification dated 31.8.2010, which is reproduced as under:-

"For the purpose of sale of fish cooked or uncooked in commercial market, shop, hotel, motel, tent, hut, cart or open space etc.

(2000 per year)

For catching fish (except closed season) by using Raft Boat (Jala) Mater Boat with all kinds of nets only.

(5000 per year)

7. Comments were sought from respondents, which have been received, where in para-2 thereof they have completely denied the plea of the petitioners by stating that license fee is charged from fishermen under N.W.F.P. Fisheries Rules, 1976 rule 7(1) clauses I to VI and not from the petitioners/dealers. The respondents went to the extent of asking proof from petitioners for their claim but in the same para the respondents themselves have provided proof by stating that due to the need of the day, the Government of Khyber Pakhtunkhwa has been pleased to issue the Notification in question under section 26 (1) of West Pakistan Fisheries Ordinance, 1961 vetted by Law Department to include the fish dealers, shops etc as mentioned in the gazette Notification for mobilization of resources/revenue per policy of the Government in the best interest of public service. The stance of the respondents regarding the impugned Notification is contradictory and inconsistent, thus, have no legal basis.

8. Tax is not a voluntary payment but is compulsory exaction of money by Government and failure to pay is punishable. The money so collected is used by the Government to carry out its business whereas fee is charged by the Government against specific services rendered by it. Fee is levied against the one who wants to avail the benefit of services provided by the Government. There is no denial to the fact that petitioners are not direct beneficiaries of the services rendered by the Government.

9. A careful examination of the impugned Notification speaks that the amendment made in rule 7(1)(vii) of the N.W.F.P. Fisheries Rules, 1976 seems to be alien to the Ordinance. The language of Rule 7(1) clearly indicates that provisions of the Ordinance are intended for fisherman and not for dealer/seller of cooked and uncooked fish. The amendment made in rule 7(1)(vii) is inconsistent and have traveled far beyond the provision of the Ordinance, thus, by all means is a sub-legislation.

10. In the case of "Abdul Akbar Khan v. Government through Secretary, Local Government and Rural Development Department, Peshawar and others (1999 MLD Peshawar 1498) , this court has held that "the decision taken in cabinet meeting with regard to amendments in North-West Frontier Local Government Ordinance, 1979, could not take status of law and could not be enforced till the same was amended either by an Ordinance promulgated by Governor under Article 128 of Constitution of Pakistan (1973) or by an Act of Assembly".

11. The West Pakistan Fisheries Ordinance, 1961 is a Provincial Statute. An amendment in any Statute is prerogative of the legislature, which could be achieved through prescribed mode and required procedure and in case of any inconsistency between the parent Statute and the rules, the Statute would prevail and all such rules would be ultra vires. For holding the above view, we get support from the judgment, delivered by the august Supreme Court in case titled The Central Board of Revenue, Islamabad v. Sheikh Spinning Mills Limited, Lahore (1999 SCMR 1442).

12. Undoubtedly, the amendment with regard to license fee imposed through Notification dated 31.8.2010 has been issued without any competent legislative instrument and was an illegal exercise of power. The respondents have taken upon themselves the functions of legislation by-passing the procedure prescribed by the Constitution of Islamic Republic of Pakistan, 1973, which was not within the competence of the respondents as a Statute can not be amended by subordinate legislation, thus, the amendment made in rule 7(1)(vii) is declared illegal, void ab initio, without lawful authority and is of no legal effect.

For what has been discussed above, this writ petition is partially allowed. The Notification dated 31.8.2010 to the extent of imposing of license fee on the petitioners is struck down.

SAK/560/P Petition partially accepted.