HYDERABAD, Dec 8 A division bench of the Sindh High Court, Hyderabad circuit, comprising Justice Amir Hani Muslim and Justice Ahmed Ali Shaikh, has stayed recovery of toll tax on Hyderabad-Mirpurkhas road from rickshaw, taxi, passenger vans/buses, motorcycles, tractors or trucks carrying passengers till next date of hearing. The court has fixed the matter for December 17 at 8.30 am with directives to parties to exchange their counter affidavits/rejoinder if any.

The order was passed on a constitutional petition filed by Zubair Yusuf Kaimkhani, joint secretary Coaster Owners Transport Association Hyderabad. Ayatullah Khawaja advocate represented him. He challenged recovery of toll tax on Hyderabad-Mirpurkhas road and said that no tender was passed in respect of recovery of tax and there is no such road constructed by respondent rather it is an illegal collection of money being extorted by the project manager.

The bench observed that it would hear and dispose of the matter at katcha peshi as it was of the view that toll tax could only be charged if government provides service which in the present case was being said that it is not a toll tax but a user's fee. The court said that unless the government provides services, it couldn't charge tax/toll from public. “This is our tentative view but in the case in hand it is claimed that under an ordinance of Sindh Public Private Partnership Ordinance 2009, the government has the authority to impose tax under the garb of user's fee”, the court said.

It observed that any statute which is in conflict with the constitution has to be discarded. This issue whether the provincial government could charge such fee as user's fee or as toll tax without providing the service has to be argued by government. This court has to be satisfied that such fee or toll tax could be charged without providing service to public is not violative of fundamental rights guaranteed to citizens.Mr Jhamatmal Jethanand advocate, who represented the contractor, said that he may be joined as respondent and no notice is required to be issued to him. The court appreciated project director, who conceded that rates given in schedule of toll/user's fee was not rational and is on higher pedestal. “We will not travel into this issue for time being. However, we restrain contractor from charging toll or user's fee from rickshaw, taxi, passenger vans/buses, motorcycles, tractors or trucks carrying passengers.

The court had earlier directed project manager to account for collection of toll tax on a daily basis to additional registrar of the court. The petitioner's counsel stated that a notice was published on October 21 by the project manager Project Implementation Unit Hyderabad-Mirpurkhas dual carriage way project, calling for tax collection from every vehicle which plies on the said road.

He described it as illegal and unauthorised as objections were not called from general public and tax was imposed all of a sudden. He stated that not a single brick or any kind of construction of the road is undertaken by respondent but they are keen to collect tax. He said that Hyderabad-Karachi Super Highway is 165 km and Rs20 is paid by each car while Hyderabad-Mirpurkhas road is merely 65 km where Rs80 are being collected from coaster, mini bus which pay Rs30 on Super Highway.

He said that toll tax according to prescribed rules could be collected if it is in the interest of general public. He said that in the notice dated October 16, 2009 it was mentioned that construction work would be started very soon hence it proved that without providing facilities respondents have imposed such tax. He added that some unscrupulous persons were appointed by the project manager who were humiliating respectable persons, including children and women. He said that he had approached DPO and DCO Hyderabad for redressal of his grievances but in vain. He prayed the court to declare the said notice illegal and restrain respondents from collecting tax.