SAHIBZADA SHARAFUDDIN AND 15 OTHERS vs TOWN COMMITTEE, PINDIGHEB

' This Civil Revision arises from an order, dated 9th January, 1983 of the learned District Judge, Attock, whereby he upholding an order, dated 31st July, 1982 of Civil Judge, Pindigheb, dismissed the petitioners' application for temporary injunction.

2. The respondent-Town Committee, Pindigheb, levied parking fee at the rate of Rs, 2 per bus per trip to the bust and situate within its limits. The petitioners challenged it on the ground that unless the bus-stand was approved by the Regional Transport Authority, no such fee could be levied. They prayed for temporary injunction which was refused by the trial Court holding inter alia that after all it being a money matter, no irreparable loss would be suffered by them as the money paid could be refunded. The learned District Judge also shared the same view.

3. Mr. Ansari for the petitioners, in support of the revision, relied upon section 137 of the Punjab Local Government Ordinance, 1979, which authorized the levy of this tax, rule 253 of the Motor Vehicles Rules, 1969 and Muhammad Amin etc. v. Commissioner, Lahore Division, Lahore etc. (1) in which these statutory provisions were discussed threadbare to reach the conclusion that without approval of the Regional Transport Authority, no Municipal Committee could establish any bus- stand within its limits nor could charge any parking fee for it. It was emphasised that although under section 137 ibid, the Committee was competent to levy parking fee as it was allowable vide item No, 26 of Part III of the Second Schedule, yet this power had to be exercised "subject to the provisions of any other law" which expression was clearly claimed to include rule 253 of the Motor Vehicles Rules, 1969, which put an embargo of the previous approval by the Regional Transport Authority both in regard to the establishment of the bus-stand and the levy itself. The precedent cited above was shown to be laying down this rule.

4. As to granting the relief of temporary injunction in such money matters involving payment of taxes, Mian Muhammad Latif v. Province of West Pakistan etc. (2) was referred to, in which exactly in similar circumstances, the temporary injunction granted by the trial Court was restored.

5. In reply, Qazi Altaf Hussain for the respondents, stressed that the suit for declaration did not lie inasmuch as no right of the petitioners was involved and added that loss, if any, was reparable. He placed reliance upon section 4 of the Punjab Local Government Act, 1979 which to his reading, excluded all other laws including the Motor Vehicles Rules, 1969 and gave unfettered powers to the Committee to levy tax as per sections 137 and 138 (ibid). He relied upon Muhammad Ghias etc. v.

Market Committee, Kamalia etc. (3) and added that this Court lacked jurisdiction to hold a different view under section 115, C.P.C. As the matter was discretionary with the Courts below and could not be interfered with merely because another view was also possible. He referred to Shahzada Muhammad Umer Beg v. Sultan Mamood Khan etc. (4) where injunction was refused.

6. No doubt, section 4 (ibid) makes the Act prevail against all other laws but one cannot lose sight of the phraseology used in section 137 also. It authorises the levy of tax "subject to the provisions of any other law".

(1) PLD 1978 Lah. 1020 (2) PLD 1970 SC 180

(3) PLD 1982 Lah. 710 (4) PLD 1970 SC 139 This is a provision coming in the Statute later in sequence and will be deemed to claim preference.

Muhammad Hassan etc. v. Executive Engineer (Civil) Karachi Development Authority etc. (1) may be referred to. It appears to have neutralized section 4 altogether and makes specifically, at least the levy of tax, "subject to the provisions of any other law". The inclusion of this clause in this particular section will be construed to purposeful because the levy of taxes being an expropriator measure might involve interaction of many other laws already taxing the subjects or making their recovery conditional on affording certain corresponding facilities. Obviously it could not be a straight game and other laws had to be kept in view to avoid something burdensome for the public. This was the philosophy behind the clause and that is why of all other provisions, this section contains it as its integral part. Thus section 4 could not be taken to apply in an abstract form reserving a free-hand for the respondent-Committee in all matters. To comprehend the intention of the Legislature, this provision will have to be read with section 137 because it is a cardinal rule of inter predation that all parts of an enactment are to be read together and effort must be made to harmonise the seemingly inconsistent provisions. According to Maxwell on Interpretation of Statutes page 155. "If the two sections are repugnant, the known rule is that the last must prevail" and Abdul Hadi alias Abdul Hadi Ha.San etc. v. Syed Ali Haider etc. (2) is an authority on the point. Section 137 will be assumed to be an exception to section 4 and the Motor Vehicles Rules, 1969, could not altogether be ignored. This is what the case of Mian Muhammad Latif referred to above, laid down. It involved a corresponding obligation on the Committee for affording facilities and without them, perhaps it could not ask for payment of such c a tax. Admittedly, the bus-stand was not approved by the Regional Transport Authority so far. Rather they opposed it and so did the Highways Department. Prima facie, therefore, the levy had to be made with their blessings, and without the same, it will suffer from a legal infirmity.

7. On this view of the matter, I am constrained to hold differently. In the aforesaid case of Mian Muhammad Larif a similar tax was stayed, mainly because of its viability on legal plane. The same situation obtains here and the authority fully applied. The recovery of the tax besides being apparently illegal, might involve inconvenience including issue of distress warrants etc. Entailing the payees, detention. There may be no recompense in money for any such eventuality and thus even the balance of inconvenience seems to weigh in favour of the revision-petitioners/plaintiffs.

8. Accordingly, the revision petition is allowed, the orders of the Courts below are set aside and the petitioners-plaintiffs' application under Order XXX1X, rules 1 and 2, C.P.C. Is accepted with the result that the recovery shall remain stayed till the final disposal of the suit.

9. In the circumstances of the case, the parties are left to bear their own costs.

(1) 1983 CLC 2681 (2) PLD 1983 SC 342