1990 PLP 352 (CLC)

SALEEM AKHTAR, J.‑‑We propose to dispose of all these petitions by this judgment in which levy, imposition and recovery of water charges by Karachi Municipal Corporation and Water and Sewerage Board Karachi (K.W.S.B.) has been challenged. We will first state the facts of each case separately. C.P.No.D‑300/82: The petitioner is owner of house on plot No.F.59 Block‑F, North Nazimabad, Karachi measuring over 2000 sq. yards. The petitioner had been paying water tax @ Rs.210.60 per annum. In the year 1981‑82 he received water tax bill at the rate of Rs.1,500 per annum. The petitioner made a representation to the Karachi Municipal Corporation but no relief was granted. The petitioner then filed this petition challenging the authority of K.M.C. to enhance the water charges. The K.M.C. filed its reply stating that by Karachi Water Management Board Ordinance, 1981 Karachi Water Management Board has been constituted which has been exclusively charged with responsibility to ensure supply and distribution of water and also to collect the charges and arrears as well. The petitioner amended the petition and joined Karachi Water and Sewerage Board as a respondent. In its counter‑affidavit K.M.C. has stated that in the year 1982 it was recovering water charges on bahalf of Karachi Water Management Board (K.W.M.B.) and the representation made to it was misconceived as it should have been made to Karachi Water Management Board. It was pleaded that under the direction issued by the Government of Sindh on 30‑3‑1981 the K.M.C. had notified new rates of water charges which were adopted by Karachi Water Management Board. Karachi Water and Sewerage Board also filed its counter affidavit stating that Municipal Commissioner of K.M.C. issued notification under the directions of Government of Sindh whereby water rates were revised in respect of residential, commercial and industrial units. The decision was made on 28‑3‑1981 and K.M.C.s' notification was issued on 30‑3‑1981. Karachi Water Management Board vide resolution No.7,dated 21‑9‑1981 adopted the notification of K.M.C. The notification issued by K.M.C. on direction of Government of Sindh is legal and enforceable in law. It has been pleaded that Karachi Water Management Board is sustaining financial loss and the services rendered do not meet the expenditure defrayed on the supply of water and it is making efforts to balance the expenditure without further enhancing the water rates by seeking subsidy from the Government and other agencies. C.P. No. D‑477 of 1982: The petitioner is a trust and is alleged to be run on charitable basis. The Government of Sindh had granted exemption from taxes payable under the Excise and Taxation Rules. The K.M.C. demanded Rs.62,693.47 as water tax which according to the petitioner is exorbitant and excessive. The petitioner approached K.M.C. by way of appeal which acting as agent of Karachi Water Management Board dismissed it holding that damand is legal and proper. On 13‑3‑1982 K.M.C. demanded water charges from the petitioner threatening to disconnect supply of water in case of default. The petitioner has challenged this demand of the respondents. Respondents Nos.l and 2 have filed their counter affidavit in which the facts stated in Petition No.300/82 were reiterated. Petition No. 515-D/1982: The petitioner is a Cooperative Housing Society. In 1966 the petitioner was provided a 2" dia water line from the K.M.C. main for bulk, supply to the petitioner's underground tanks from where it distributed water for domestic consumption to its residents individually. It has been alleged that rate for this bulk supply was fixed at Rs ?50 per annum which it has been paying. In May, 1976 the petitioner paid Rs.21,000 to K.M.C. being water charges from May, 1972 to 30‑h‑1976 at the agreed rate On 10‑3‑1981 when the elected committee took over the records did not show that any bill was received from K.M.C. By letter dated 4‑5‑1981 K.W.M.B, informed that it has taken over the water supply and henceforth individual allottees will be billed. The petitioner was facing water shortage and it is alleged that on 20‑5‑1982 the Councillor of the area informed that he had succeeded in obtaining permission for 6" dia line. It seems new line was laid but on 24‑5‑1982 water supply was disconnected for unauthorised change in the water line. Due to stoppage of water there was agitation and the petitioner approached the Karachi Water Management Board. At the threat of disconnection the petitioner's representatives executed an agreement dated 25‑5‑1982 whereby petitioner agreed to pay the arrears and current dues within 15 days from the date of agreement at the prescribed rate. On execution of this agreement water supply was restored on 25‑5‑1982 and on the same day the petitioner received a demand of Rs.2,00,000 as estimated water charges for the year 1981‑82.1t further slated that this amount does not include the arrears which were being worked out and would be intimated within 2 days. On 27‑5‑1982 another demand of Rs.17,50,000 was made purporting to be the arrears up to 1981. According to the petitioner these demands are illegal and without jurisdiction. By letter dated 1‑6‑1982 the petitioner protested challenging the right to levy and recover the said amount. It enclosed cheque for Rs.50,000 which according to the petitioner will cover the arrears and current charges up to 1981‑82 but in case of any short fall it was prepared to pay the same. The petitioner further asked K.W.M.B. that full accounts be taken and adjustment may be made. In the counter‑ affidavit all the allegations have been denied and it has been stated that water rate was fixed by K.DA. at the rate of Rs.1.50 per 1000 gallons chargeable for quantity actually consumed subject to revision from time to time. The water rates notified by the K.M.C. were adopted by Karachi Water Management Board. These rates do not commensurate with the expenditure incurred on the service thereby causing loss to the Board. It has been pleaded that as the petitioner without necessary sanction replaced the 2" dia water connection by 6" dia connection the supply of water was disconnected. The petitioner's representative had executed the agreement of their own free will. It has been denied that it was obtained by threat or coercion. The respondent calculated the arrears on the basis of information supplied by the petitioner which were found as follows:‑‑ "(1) From 1‑7‑1976 to 31‑3‑1981 @ of Rs.42,579.00 Rs.2 per 1000 Gallons calculated on the basis of average consumption of 3,73,500.00 per month. (2) From 1‑4‑1981 to 30‑9‑1982 on the basis of the schedule of water rates. (copy annexed and marked D‑1) Rs.3,10,453.74 Total: Rs.3,53,032.74 Less payment made by petitioner Rs.2,00,000.00 Balance payable: Rs.1,53,032.74. C.P.No.D‑184 of 1983: The petitioner is an exporter of handircraft items and owns a commercial building constructed on plot No.164 situated in front of Star Gate Airport, Shahrah‑e‑Faisal, Karachi. In 1975 when the construction was to commence the petitioner applied for water connection and approval was accorded subject to no objection from Karachi Metropolitan Corporation. The petitioner approached respondent No.l for no objection but he was advised to obtain such certificate from the Railway Authorities so that connection could be provided from across the Railway line. In spite of several requests the water connection could not be supplied. It has been stated that even in the vicinity there is no main water line and no water connection has been given. On 30‑3‑1981 the Sindh Government issued a notification whereby water rate was fixed at 6‑1/2% of the net annual rental value in respect of Commercial and Industrial property not connected with water line. Notice of demand was accordingly served. It has been pleaded that Karachi Water Management Board is entitled to recover water charges only on supply of water and not otherwise. K.M.C. in its parawise comments stated that according to the revised rates bill for Rs.53,480.56 for water charges, conservancy and fire‑tax was issued. On production of receipts of payment for Rs.9,022.33 revised bill for Rs.44,458.23 was issued to the petitioner and its request to pay in instalments was granted but it failed to make payment.. The petitioner is liable to pay water charge as it is consuming water. The demand at the rate of 6‑1/2% NARY is in accordance with notification dated 30‑3‑1981. It has further been stated that irrespective of the fact that petitioner has not been granted water connection it is liable to pay water charges as admittedly it consumes water. Karachi Water and Sewerage Board in its counter‑affidavit stated that as no objection certificate could be obtained from the Railway Department by the petitioner no step could be taken to give water connection. It has been stated that persons residing in Karachi do obtain water to meet thcir needs from some source. The water obtained from whichever source is actually the water brought and supplied by the Board. The consumers who have no direct water connection obtain water indirectly and as such they are liable to pay water charges. So far notification etc. is concerned the averment made in earlier petitions has been reiterated. C.P. No.D‑716 of 1988: The facts in this case are the same as in Petition No.D‑184/83 except that the demand is in respect of the subsequent years. Mr. Shahenshah Hussain the learned counsel for the petitioner has contended that the levy made by notification dated 30‑3‑1981 is not in accordance with law as it did not comply with the provisions of section 62 of the Sindh Local Government Ordinance, 1979. Section 62 reads as follows:‑ "62.(1) Government may direct any council:‑‑. (a) to levy any tax, rate, toll or fee which the council is competent to levy under this Ordinance; ' (b) to increase or reduce any rate, tax, toll or fee to such extent as may be specified; (c) to suspend or abolish the levy of any tax, rate, toll or fee; (2) If the direction is issued under subsection (1), the Chief Executive of the council shall, notwithstanding anything contained in this Ordinance, give effect to it by issuing a notification in terms of the direction not later than the date, if any, specified by Government in this behalf." According to the learned counsel the Government may direct the council to increase or reduce any rate to the extent as may be specified and effect shall be given to it by issuing a notification in terms of the direction. The learned counsel has laid great emphasis on the fact that in this notification while issuing/directive the extent of increase has not been specified. It merely directs to carry out the rationalization of the rates of retail water supply. It is contended that as the extent of increase has not been specified for non‑compliance with mandatory provision of law the notification is illegal. Mr. Muslim Naqvi the learned counsel for K.M.C. has contended that though rate was not mentioned in the Government's notification itself it was separately approved by the Government of Sindh before the notification dated 30‑3‑1981 was issued by K.M.C. The notification which is subject‑matter of the petition was issued by K.M.C. on 30‑3 1981 which reads as follows: EXTRAORDINARY Registered No.S‑463 THE SIND GOVERNMENT GAZETTE PUBLISHED BY AUTHORITY KARACHI, MONDAY, MARCH 30,1981 PART I‑A KARACHI METROPOLITAN CORPORATION NOTIFICATION Karachi, the 30th March, 1981 No. ADM/SC‑87/81‑‑In persuance of the provisions contained in sub section (2) of section 62 of the Sindh Local Government Ordinance, 1979, I, Sajjad Hussain, Municipal Commissioner, Karachi Metropolitan Corporation hereby give effect on and from 1st April, 1981 to the direction of the Government contained in Government of Sindh, Housing, Town Planning, Local Government and Rural Development Department Notification No. SOI (KDA) 3‑5‑/70, dated the 28th March, 1981 and notify the water rates approved by Government and mentioned in column 2 of the Schedule for various categories of property mentioned against each in column 1 thereof:‑ SCHEDULE Property Water rate per mensum Residential

1. Ground Floor: (i) Up to 60 sq. yds. Rs.6.00 (ii) 61 to 120 sq. yds: Rs.8.25 (iii) 121 to 200 sq.yds Rs.12.00 (iv) 201 to 300 sq.yds. Rs.18.00 (v) 301 to 400 sq. yds Rs.25.00 (vi) 401 to 600 sq. yds. Rs.35.00 (vii) 601 to 1000 sq. yds. Rs.50.00 (viii) 1001 to 1500 sq. yds. Rs.100.00 (ix) 1501 to 2000 sq. yds. Rs.125.00 (x) 2001 yds and above Rs.150.00

2. Each Additional Floor. 50% of the ground floor

3. Any propery not connected with water line Rs.4.00

4. Flats (covered area): (i) Up to 500 sq. ft. Rs.3.25 (ii) 501 to 800 sq. ft. Rs.12.00 (iii) 801 to 10(1() sq. ft. Rs.15.00 (iv) 1001 to 1200 sq. ft. Rs.20.00 (v) 1201 to 1500 sq.ft. Rs.30.00 (vi) 1500 to Rs.50.00 (vii) More than Rs.G0.00 Rs.4.00 (i) Not connected with water line 6‑1/2 % of the net annual rental value. (ii) Connected with water line. 9% of the net annual rental value. MUNICIPAL COMMISSIONER, K.M.C. In order to appreciate the contention of the learned counsel for the petitioner it is necessary to refer notification dated 28‑3‑1981 issued by the Government of Sind in persuance of which the aforesaid notification was issued by K.M.C. GOVERNMENT OF SIND HOUSING TOWN PLANNING, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT NOTIFICATION Karachi, dated 28th March, 1981. No. SOI (KDA)/3‑5/70 Whereas on 10th February, 1981 the Government of Pakistan have approved Hub Water Supply Scheme at a cost of Rs.58.37 crores subject to the condition that the funds for the Scheme will be released only after the retail water rates are revised and rationalised by the Karachi Metropolitan Corporation; And whereas due to serious water shortage in Karachi it is realized by the Government of Sindh that the funds for the aforesaid Scheme are released without further loss of time, so that water supply position in Karachi is improved; AND WHEREAS the changed economic conditions also demand that the present structure of retail water rates is reviewed and rationalized; AND WHEREAS the necessary action towards the rationalization of the ''water rates is taken in such a way, that the revised rates are enforced from a date not later than 1st April, 1981. NOW, THEREFORE, in exercise of the powers conferred on it uncic r section 62 (1) (b) of the Sindh Local elin,titce, 1979 the Government of Sindd hereby direct the Municipal Commissioncr, Karachi Metropolitan Corporation to carry out the ratii)n,tlization of the: rates of retail water supply without previous publication of the revised rates, so that the new rates to be effective from Ist April, 1981 are notified not later than 30th March, 1981. Sd/Mumtaz Ahmad Khan For Secretary to the Government of Sindh Municipal Commissioner KMC, Karachi. The Notification dated 30‑3‑1981 clearly states that the water rates as approved by the Government of Sindh are notified. This shows that before the new structure of water rates was fixed it had the approval of the Provincial Government. Section 62 empowers the Provincial Government to direct any Council to impose an tax .rate, toll, or fee permissible under law, reduce or increase it. It has not been mentioned in clear terms that such notification 1A containing directive issued by the Government should also contain the rate of increase or decrease. Such specification would have been material if public objections were to be invited before the enforcement of amended rates because in that event before the final notification was issued the amended rates ought to have been made public. The procedure provided for inviting objections has been waived by the Provincial Government. Therefore, if the amended rates had the approval of the Government prior to its notifications by K.M.C. it will amount to proper compliance with section

62. According to the impugned notification the rates notified were approved by the Government. Mr. Shahenshah Hussain then contended that the notification dated 28‑3‑1981 is not a direction but is merely an advice to the K.M.C. which is contrary to law. The learned counsel has referred to Sindh Council Imposition of Tax Rules, 1979 and has relied on section 2 (f) and Rule 3 but these provisions are not relevant because they relate to taxation proposal which a Council has to submit for any change in the tax structure. In the present case there was no taxation proposal. The notification of the Government directed to rationalise the water rates in the facts and circumstances enumerated in it. The water rates were to be revised to generate a fund of Rs.58.37 crore for the Water Supply Scheme. This and other economic conditions were to be taken into consideration while fixing the revised rates. These were sufficiently specific directions in clear terms. In any event the revised tax structure was approved by the Government before it was notified. The learned counsel then contended that the water rate has to be related with the supply of water and it should be levied on "no profit no loss basis" but the notified rates are excessive and unreasonable. Prior to the year 1981 K.M.C. was the authority to supply water and to levy and collect water charges. This arrangement continued till Karachi Water Management Board was constituted under Ordinance X of 1981. Under section 9 Karachi Water Management Board was made responsible for supply of water, to levy, reduce or increase the water tax and also to collect the same including the arrears. Section 9 (5) provided that water rates were to be fixed on no profit no loss basis. By Ordiance II of 1983, Sindh Local Government Ordinance, 1979 was amended and chapter 16 was added to it whereby under section 121 Karachi Water and Sewerage Board was constituted within K.M.C. of which the Mayor is the Chairman with four other members. Under section 131 the Board is responsible for bulk production of portable water and its distribution. Under section 124 (ii) the Board is to collect or recover rates, charges, fees for water supply including arrears. After repeal of Ordinance X of 1981 all notifications issued under the repealed Ordinance were to continue and were saved. Thus, the notification dated 30‑3‑1981 which was B adopted by the Karachi Water Management Board was protected and continued in force. Mr. Muslim Naqvi and Mr. Yusha Rizvi have pointed out that in their counter‑affidavits the K.M.C. and Karachi Water and Sewerage Board have clearly stated that even the revised charges are insufficient to meet the expenses incurred on the service. There is no denial of these facts by the petitioners, therefore in these proceedings on the basis of the record before us no finding can be given that the rates prescribed in the impugned notification are not on no profit no loss basis or that K.M.C. and Karachi Water and Sewerage Board are reaping profit from such levy. The learned counsel contended that as no water is being supplied to the petitioners in Petitions Nos.18/43 and 716/88 the respondents cannot levy any water tax. In this regard reference has been made to Karachi Municipal Corporation v. Karami and Company P L D 1967 Karachi

537. In this case referring to the provisions of sections 99 and 100 City of Karachi Municipal Act by which K.M.C. was required to render conservancy service and supply water, it was contended that as these services were not provided K.M.C. was not entitled to levy these charges. Repelling these arguments A.S. Farooqui, J. observed as follows at page 546: "The object of the Act is to make law relating to the Municipal Government of the city of Karachi. For that purpose the city of Karachi is an inidvisible whole. If a certain tax is levied and collected from a certain area but is not expended on it, we are unable to hold that such a tax is not levied for the purposes of the Act which is the municipal government of the city of Karachi. It is, of course, right and just that no responsible body is expected to levy tax without performing its duties. It is also right to expect that the distribution of benefits must be equitable in all the areas as far as possible. But if this is not done, can it be subjected to an injunction of the Court. It seems to us that the question is a political one and the remedy where such a situation arises would be by representation and agitation and by such other means as may be found necessary. The people of a particular area may feel aggrieved that they are not receiving their due share or for that matter any share of the benefits of municipal government and on that ground they should not be made to pay any particular tax But when such a situation arises and it has arisen in the past the remedy has not been by action in a law Court. Other methods had been adopted with varying measures of success. As far as the Courts are concerned, the question which they have to answer is whether under the particular law the Taxing authority has the power to levy the tax? If the answer to this question is found in the affirmative it is difficult to see how the Court can give a declaration against the imposition of the tax. As far as the City of Karachi Municipal Act is concerned we have pointed out that the levy of tax would still be for the purposes of the Act within the meaning of section 96 even though the purposes may not be fulfilled in a particular area. The only way in which the Corporation could lose its power to levy the tax in a particular area within the city of Karachi would be either by excluding that area from the city or when the power to levy a particular tax is taken away from it by some legislative measure." This judgment was upheld in appeal by the Supreme Court in M/s. Karami and Company v. K.M.C. 1974 SCMR 440 where it was observed by Anwarul Haq, J. (as he then was) as follows:‑‑ "As a general rule, the validity of the imposition of a municipal tax can be challenged either on the ground that the requisite power has not been conferred on the municipality concerned by the statute or the charter which governs its functions and powers; or that the imposition is not for the purpose of the municipality. The challenge cannot, however, be based on the ground that the municipality has failed to carry out its duties and obligations in a certain locality or for the benefit of certain individuals, as municipal taxation is intended for carrying on the administration of the municipality as a whole. The failure, neglect, or inability of the municipality to perform its functions in a certain locality comprised within the municipal area, does not relieve the citizen of his liability to pay municipal taxes, whose imposition has been authorised by law, as the liability to pay arises on account of the presence of the citizen, or the property taxes, in the area of the municipality concerned, and not 4s a quit pro quo for concrete services rendered. The well‑established c0rXei:t underlying the functioning of local government institutions is that such general taxes are for the collective good of the municipal community as a whole, and are not to be regarded as being in the nature of payment for particular utilities or services provided by the municipal administration. There are, however, exceptions to this rule such as are to be found in sect wn. 99 and 100 of the City of Karachi Municipal Act, 1933 (hereaftc! referred to as the Act) which contemplate that conservancy and water taxes are to be levied only if certain services and seipplies are provided to the buildings and localities concerned. It appears, therefore, that the Legislature has itself taken care to specify those charges and tax., the payment of which would depend on the performance of certain duties and services. This condition cannot be extended to other taxes not so specified." There is no dispute that the water is being supplied in that locality or in that area. Therefore, applying the principles laid down in the aforesaid judgments failure or inability of Karachi Water and Sewerage Board and K.M.C. not to C supply water to the petitioners does not mean that the water rate cannot be charged from them particularly as water is being supplied in the locality or in that area. The learned counsel contended that the fixation of rates is arbitrary. So far commercial and industrial buildings are concerned a separate rate has been 41,provided in the notification dated 30‑3‑1981. Commercial and industrial buildings not connected with water line are required to pay water rate at 6‑1/2% of net annual rental value whereas such buildings connected with water line have to pay at the rate of 9 % of net annual rental value. In Petition No.184 of 1983 and Petition No.716/83 according to the respondents the demand has been made the same rate. Therefore, the petitioners cannot say that the demand made is not in terms of the notification. No ground has been shown to hold that the charges levied are unreasonable, excessive or arbitrary. The rates fixed by the notification were duly approved by the Government and due consideration has been given to the expenses incurred for rendering such services as stated in the counter affidavit. Mr. I.H. Zaidi in Petition No.515 of 1982 while adopting the arguments of Mr. Shahenshah Hussain has contended that bulk supply of water was made by the petitioner at Rs.1.50 per one thousand gallons, but demand has been made at higher rate and in terms of agreement which was obtained under coercion.In the counter‑affidavit it has been admitted that the charges were fixed at the rate of 1.50 per one thousand gallons. However, the bill was sent @ Rs.2 per one thousand gallons. The petitioner admits execution of agreement dated 25‑5‑1982 but in petition it has been alleged that it was obtained on threat of disconnection of water supply. It is to be noted that the 6" diameter water line was laid without any sanction and consequently water supply was stopped and therefore it does not seem to be correct to allege that the petitioner was made to execute the agreement on "threat of disconnection". The water supply had already been stopped and in order to get it restored the petitioner entered into the agreement which does not specify the rate of water charges. Although in the impugned letters the K.W.M.B. has demanded Rs.2,00,000 for the year 1981‑82 and Rs.17,50,000 as arrears up to 1980‑81, in the counter‑affidavit it have been amended as reproduced above. The arrears from 1‑7‑1976 to 31‑3‑1981 has been calculated @ Rs.2 per 1000 gallons and the charges from 1‑4‑1981 to 30‑9‑1982 have been calculated according to the rate notified by K.M.C. on 30‑3‑1981 as adopted by K.W.M.B. on 21‑9‑1981. The validity of notifying the direction of the Government by K.M.C. on 30‑3‑1981 cannot be challenged as discussed above. So far the adoption of the notification dated 30‑3‑1981 by K.W.M.B. is concerned the same was permissible by Ord. X/81, K.W.M.B. was empowered by section 9 (v) of the Ordinance (X of 1981) to levy, enhance, reduce or revise water charges in the prescribed manner subject to the condition that water supply was to be made on no profit no loss basis. K W M B was also entitled to collect water charges B including arrears. The word "prescribed" has been defined by section 2 (g) as prescribed by rules or regulations made under the Ordinance. None of the parties have pointed to the rules and regualtions framed under the Ordinance. Mr. Zaidi therefore contended that in the absence of rules and regulations K.W.M.B. could not levy, or enchance the water charges. The power to levy, enhance, reduce or 4 revise is conferred by the Ordinance on no profit no loss basis. In the absence of rules regulating the levy, enhancement or reduction, the K.W.M.B. could exercise this power subject to the restriction imposed by the Ordinance. No other fatters or conditions being prescribed, K.W.M.B. could levy or enhance within the limits prescribed by the Ordinance. Non‑framing of Rules can not take away the power conferred by the Ordinance unless it is a condition precedent for exercise of such power. There being no such condition K.W.M.B. while adopting the water charges notified by K.M.C. have acted lawfully and within the ambit of the Ordinance. The question arises at what rate K.W.M.B. should have charged. The rate notified on 31‑3‑1981 did not prescribe any rate for bulk water supply. This question came up for consideration in W.P. 149/1985, Taj Mahal Hotel v. Karachi Water and Sewarage Board and others and it was observed as follows:‑ 6."Karachi Water Management Board at its meeting held on 21st September, 1981, passed certain resolutions. Item No.9‑A of the agenda of the meeting dealt with "the adoption of water rates already prescribed vide Notification No. Adm/Sc/87/81, dated 30th March, 1983". The Board passed resolution No.7, which is also relevant for the purpose of this petition, and is reproduced as under: RESOLUTION N0.7 "Resolved that the water rates notified by Municipal Commissioner, K.M.C. vide Notification No. Adm/Sc/87/81, dated 30‑3‑1981, are adopted by the K.W.M.B. and made applicable with effect from 21st May, 1981, i.e. the date on which K.W.M:B. Ordinance was promulgated creating the Water Management Board. Resolved further, that these rates shall be applicable through out Karachi Division and remair resolved further, that the Board shall prescribe water rates separately for category of properties and areas etc. not clearly specified in the said Notification."

7. Under item No.9‑B, a committee was constituted headed and chaired by Mr. Abdul Khalique Allah Wala, and it was resolved, that this committee should examine and recommend water rates for all categories not clearly specified in the said Notification.

8. Another meeting of the K.W.M.B. was hled on 27th March, 1982, and resolution No.2 was passed. This resolution was passed after discussion on the subject and Board approved the recommendation of "Allahwala Committee" with some modifications and prescribed the rates for categories not specified in the said Notification. The relevant portion of the resolution No.2 is reproduced as under:‑‑ "Resolved that the following rates are prescibred as noted against each of the categories not specified in Notification No. Admn/Sc/87/81, dated 30‑3‑1981: (1) For all categories of properties/consumers not specifically covered under Notification No. Admn/Sc/87/81, dated 30‑3‑1981 and where meter connections have been provided (except the categories mentioned hereunder). Rs.4.50 per 1000 gls. (2) Industrial and commercial consumers including Agriculturists/farmers. Rs.6.00 per 1000 gls. 3 to 8 Therefore on 27‑3‑1982 K.W.M.B. decided that all cases not covered by notification dated 31‑3‑1981 where meter connections have been provided except industrial, commercial and agricultural consumers water rate will be charged at 4.50 per 1000 gallons. As this rate cannot be applied with retrospective effect the agreed rate at which charges were made should be applied. In the counter affidavit filed on behalf of K.W.M.B. it has been stated that water rate was fixed at Rs.1.50 per 1000 gallons. Although K.W.M.B. by the impugned letters demanded Rs.2,00,000 for the year 1981‑82 and up to 31‑3‑1981 Rs.17,50,000 in the counter‑affidavit it has been revised to Rs.3,10,453.74 as charges from 1‑4‑1981 to 30‑9‑1982 and Rs.42,579 as arrears up to 31‑3‑1981. The arrears have been calculated at the rate of Rs.2 per one thousand gallons and for the year 1981‑82 in accordance with the K.M.C. notification dated 31‑3‑1981 as adopted by K.W.M.B. This exercise manifestly seems to be incorrect. The agreed rate was Rs.1.50 per one thousand gallons which was increased to Rs.4.50 per one thousand gallons on 27‑3‑1982. As notification or resolution has been produced to establish that the rate of Rs.1.50 was revised before 27‑3‑1982, for the period 1‑4‑1981 to 27‑3‑1982, the rates prescribed by the resolution of K.W.M.B. dated 21‑9‑1981 adopting K.M.C. notification dated 31‑3‑1981 cannot be applied. The arrears up to 26‑3‑1982 should be calculated at the rate of Rs.1.50 per one thousand gallons and from 27‑3‑1982 the charges will be @ Rs.4.50 per one thousand gallons. Mr. Zaidi contended that K.W.M.B. has not properly accounted for the F money paid by the petitioner from time to time, and the same may be ascertained. In writ petition such exercise cannot be undertaken nor disputed questions of fact can be investigated and decided. K.W.M.B. in its counter affidavit revised the total dues giving full details and stating that the calculation is based on the information received from the petitioner. No rejoinder has been filed to controvert it. We would refrain from giving any finding on this aspect of the case and have restricted ourselves to the limited question of the rate of water charges at ‑which demand should have been made. In view of the revised demand made by K.W.M.B. in the counter‑affidavit the impugned damands for Rs.2,00,000 and 17,50,000 cannot be pressed against the petitioner. In view of the above discussion (1) Petitions Nos.300/82, 477/82, 184/83 and 716/88 are dismissed. (2) Petition No. 515/82 is allowed and we declare that the demand of Rs.2,00,000 and Rs.17,50,000 by the impugned letters from the petitioner is without lawful authority and of no legal effect. The Karachi Water and Sewerage Board will however be entitled to make demand at the rate discussed and specified above. AA./S‑5(16/K Order accordingly,