1986 PLP 1277 (MLD)

AHMAD ALI U. QURESHI, J.‑‑The petitioner in this petition challenges the demand of water charges made by the respondent on the basis of the Notification No. Admn/SC/87/81. dated 30th 3March, 1981, issued by the Karachi Metropolitan Corporation, hereinafter called the "Notification".

2. The case of the petitioner in brief is, that the petitioner is a commercial concern viz. a hotel, situated within the Karachi Cantonment Board area. The petitioner was granted water supply connected with water line by Karachi Development Authority (K.D.A.) on 6‑5‑1980 at fixed rate of Rs.3 per one thousand gallons. The petitioner continued to pay the bills of water supply at the said rate. On 8th April, 1982, he received a letter from the General Manager, Karachi Water Management Board (K.W.M.B.) by which he was informed, that the water charges have been fixed at the rate of Rs.6 per one thousand gallons from the date of establishment of the Karachi Water Management Board under Sind Ordinance No.X of 1981, which came into force on 21‑5‑1981. He was' issued bill at the rate of Rs.6 per one thousand gallons. On 30th April, 1984, he received another bill from the respondent demanding payment of sum of Rs.7,20,039.38. On his protest, he was informed by the Deputy Director, Taxes Division of the respondent, by letter, dated 7th May, 1984, that he was issued the bill on ‑the basis of net annual rental value w.e.f. 5‑4‑1981, which has already been mentioned above, and after the adjustment of the amount already paid by the petitioner that balance of Rs.8,67,207.88 was outstanding against petitioner. The petitioner filed the representation before the Director, but was informed by the Deputy Director vide his letter, dated 13th May, 1984, that petitioner had to pay outstanding bill within three days from the receipt of this notice, otherwise, petitioner's water connection would be shut off. The petitioner filed an application before the Board, but no decision was taken on this representation instead the petitioner was issued notice by respondent, dated 21‑2‑1985, directing the petitioner to clear the outstanding dues amounting to Rs.11,87,266.38 within three days, otherwise water connection would be shut off. The petitioner therefore, filed this petition. The respondents in their petitioner, counter affidavit have admitted, that K.D.A. recovered the water charges from the petitioner at the rate of Rs.3. per thousand gallons, but the respondents having adopted the rates, as prescribed in Notification.

3. To appreciate the submissions of the learned counsel for the parties, it is necessary to trace the history of water supply and water rates in Karachi.

4. Before the promulgation of ordinance No.X of 1981 by which Karachi Water Management Board was established, Karachi Metropolitan Corporation (K.M.C.) used to supply water to the consumers within its jurisdiction and used to charge water rates fixed by it. The consumers outside the jurisdiction of the Karachi Metropolitan Corporation were ‑supplied water by K.D.A. at the rate fixed by K. D. A.

5. By the Notification, dated 30th March, 1981, K.M.C. revised its water rates with respect to five categories of the consumers mentioned in the Notification. Under category No.1, water rates were fixed for residential properties having ground‑floor only at various rates shown in column No.2 as against various areas of the properties shown in column No.1 of the said Notification. Category No.2 relates to rate for each additional floor which was fixed at 50% of the ground floor. Category No.3 relates to any property not connected with water line. Category No.4 deals with the flats. Various rates were fixed in column N0.2 as against areas of flats shown in column No.1. The water charges of all these four categories were fixed. at fiat rates on the monthly basis. Category No.5, which is relevant for the purpose of this petition, is reproduced as under:‑ CATEGORY NO‑5 (i) Not cpnnreted. wiin water line,. 6A% of the net annual rental value. (ii) Connected with water line. 9% of the net annual rental value.

6. Karachi Water Management Hoard at its meeting held on 21st September 1981, passed certain Resolutions. Items No.9‑A of the agenda of the meeting dealt with "the adoption of water rates already prescribed vide Notification No. Admn.ISC/87/81, dated 30th March, 1981". The Board passed Resolution No.7, which is also relevant for the purpose of this petition, and is reproduced as under:‑ RESOUTION No.7. "Resolved that the water rates notified by Municipal Commissioner, K.M.C. vide Notification No. Admn/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 Karachi Division and remain operative till any further decision by the Board. 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 held 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:‑ RESOLUTION N0.2. "Resolved that the following rates are prescribed 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 meters 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

9. Mr. Mansoorul Arfin, learned counsel for the petitioner, argued, that petitioner's case would fall in the categories which were not specified in the above‑mentioned Notification. He, however, conceded, that after adoption of the, said Notification by Resolution No.7, the consumers, though they were supplied water connection by K.D.A., would now be liable to pay rate in accordance with the Notification provided, the property fell in any category specified in the said Notification. He also conceded, that the petitioner was the commercial consumer connected with water line and was in Karachi Division. Apparently, therefore, the rates mentioned in the category No.5 (ii) of the Notification, would prima facie be applicable to petitioner.

10. Mr. Mansoorul Arfin further contended, that even these rates were applicable the second para. of the Resolution No.7 clearly provided, that the' said rates would remain operative till any further decision by the Board. He submitted, that Board has taken further decision in its Resolution No. 2, which fixes the water rate for the industrial and commercial consumers including agriculturists/ farmers fixing at flat rate of Rs‑6 for per thousand gallons. He conceded that in this Resolution No.2, the rates already specified in the Notification have not been specifically repealed but submitted, that latter Notification or Resolution would impliedly repeal the prior one. He further submitted, that there is inconsistency in the Notification and Resolution No.2 ‑as both deal with the industrial and commercial consumers, and in the absence of any clarification in Resolution No.2, said inconsistency should be resolved in favour of the petitioner.

11. Mr. Maqbool Ahmed, learned counsel for the respondent, argued, that there was no inconsistency between the Notification of 1981 and the resolution No. 2, and that both these deal with the different categories of the industrial and commercial consumers, and therefore, the question of implied repeal of the rates mentioned in the prior Notification, does not arise. He submitted, that the category No.5 of the Notification fixes water rates for those industrial and commercial consumers, whose annual net rental value was assessed and water rate could be charged accordingly. He submitted, that Karachi is a fast growing city with commercial and industrial concerns being established over night in different parts of the city. Some of these are not even surveyed. Besides the annual rental value is fixed by a different authority, viz. Excise and Taxation Department, over which the respondents has no control. He further submitted that there are number of properties, whose net annual rental value has not been assessed. As such the respondent felt difficulty in fixing and assessing water charges for such consumers‑To resolve this difficulty, the Resolution No.2 was passed in which it is specifically mentioned, that these rates would be applicable to only such categories, which are not specified in the Notification. We further argued, that respondent was not aware an was not informed, that the net annual rental value of petitioner's property had been assessed, therefore, the bill was issued to the petitioner a the rate of Rs.6 as mentioned in Category No 2 of the Resolution No.2 When respondent became aware, that the net annual rental value of the petitioner has been assessed, they issued the bill in accordance with the rates, shown in the Category No.5 of‑the Notification.

12. There appears to be some force in the argument of the learned counsel for the respondent. It may be noted that Resolution No.7 is divided in three parts. In part No.1 the rates mentioned in the Notification have been adopted. In part No.2 these rates have been made applicable to the entire Karachi Division. In part No.3 it is laid down, that the Board shall prescribe the water rates for categories of property and areas not clearly specified in the said Notification. In pursuance of this part of Resolution No.7, a committee was appointed, headed by Mr. Abdul Khalique Allah Wala, under item No.9 which bears the heading "fixation of the water rates for categories not clearly specified in Notification No. Admn/SC/87/81, dated 30‑8‑1.981". Thin committee apparently known as Allah Wala Committee, submitted its repor' which was discussed in the meeting of the K.W.M.B. held on 27‑3‑1982, which has been produced by the respondent. The minutes of the meeting clearly show, that report of Allah Wala Committee, was discussed and some rates as mentioned in Resolution No.2 were prescribed for categories not specified in the said Notification. Resolution No.2, which has also been reproduced above, clearly lays down that the rates prescribed therein, are for the categories not specified in the said Notification. This Resolution No.2 impliedly as well as explicitly excludes these categories of property whose rates were clearly specified in the Notification.

13. Mr.Mansoorul Arfin stressed upon the part 3 of Resolution No.7. He contended, the K.M C. applied only to areas outside its jurisdiction would come this Resolution. This argument does not appear to have any weight. Part No.2 of Resolution No.7 specifically makes the rates of the Notification applicable to entire Karachi Division, and it is not denied, that the property of the petitioner is situated in Karachi Division. Word "areas" used here would have reference to areas of various residential properties shown in the Notification. For example, in Category No.1, item No.(X), flat rate is fixed for area above 2,000 sq. yds. Thus, there is no specification if there would be any different rates for areas above 3,000 sq. yds. or 4,000 sq. yds. or 5,000 sq. yds, and so forth. Similarly, item No. (VII) of Category 'No. 4 fixes flat rate for area of more than 10,000 sq. ft. This also does not specify as to what would be rate of flats with covered area of 2,000 sq. ft. or 2,500 sq. ft. and so forth Therefore, in part 3 of the Resolution No.7, the Board was given powers to prescribe the rate of such areas, which have not been clearly specified in this Notification.

14. It may also be noted, that minutes of the Board were published on 8‑4‑1982. The letter of the General Manager, Karachi Water Management Board, is also, dated 8th April, 1982, informing the petitioner about the flat rate of Rs.6 per thousand gallons. This letter clearly shows, that these rates were provisional rates. This also support the contention of the learned counsel for the respondent, that respondents were not aware, that property had been assessed for not annual rental value, and therefore, the bill at the rate of Rs.6 per thousand gallons, was provisionally sent to the petitioner. The contention of Mr‑ Mansoorul Arfin, that the rates have been made applicable under part 2 Of the Resolution No.7 provisionally till further decision by the Board also appears to be correct, but as discussed above, the rates mentioned in Resolution No.2, are not for the purpose of modifying the rates mentioned in the Notification, but this Resolution prescribes rates for such categories of properties, which are not clearly specified in the Notification and pertains to properties mentioned in part 3 of the Resolution No. 7.

15. It may be pointed, that K . W. M. B . Ordinance No. X of 1981 has been repealed by Sind Ordinance No.II .of 1983, whereby Sind Local Government Ordinance, 1979, has been amended and Chapter XVI has been added. Under this amending Ordinance, K.W.M. B. has been replaced by establishment of a Board under Karachi Metropolitan Corporation called Karachi Water and Sewerage Board (K.W.S.B.), who is the respondent in this petition, and who has issued the water rate bill, which is challenged in this petition. It is conceded by the learned counsel for the respondent, that K.W.M.B:, while adopting the rates mentioned in the Notification by their Resolution No.7, could not make these rates applicable retrospectively, as no such powers under the law, vested in the Board. He, however, submitted, that the petitioners are liable to pay at new rate only from the date of the Resolution adopting water rates of Notification. The learned counsel for the petitioner has relied upon P L D 1965 S C 412, wherein their Lordships have held, that "the departmental instruction has no legal force in interpreting the statutes but furnish interpretation which department itself has accepted". He argued that the letter of the General Manager, dated 8th April, 1982, was in form of departmental instructions which interpreted Resolution No.

2. In fact, this letter is not sort of departmental instructions, but the letter is addressed to the consumer rind it also clearly shows, that the rates mentioned therein were provisional. This letter also does not interpret in any manner the Resolution No.

2. As explained by the learned counsel for the respondent, the rates mentioned in Resolution No.2 were applied provisionally in the case of the petitioner, as respondent was unaware whether property of the petitioner has been assessed for annual rental value or not.

16. The learned counsel for the petitioner has also relied upon the observations of their Lordships in the case of Abul Aala Moudoodi and others v. Government of West Pakistan and others P L D 1964 S C

673. At page 727, their Lordships have observed that "The doctrine of implied repeal is not generally favoured and an earlier enactment will not be held to have been repealed by subsequent legislation unless the two are so inconsistent that they cannot stand together." He has also relied upon P L D 1965 Dacca 348, wherein it is held that "Court is not competent to aid Legislature's defective phrasing nor add, amend by construction, make up deficiencies to meet justice of individual case".

17. We have already held, that there is no inconsistency or ambiguity in between Resolution No.7 passed in the meeting held on 21‑9‑1981, and Resolution No.2 passed in the subsequent meeting held on 27‑3‑1982. D The latter resolution specifically excludes the properties mentioned in Notification, which was adopted under the Resolution No.7. There is no need for this Court to add, amend or make up any deficiency in the Resolution No.2.

18. We, therefore, declare that the demand of the respondent for the period prior to 21‑9‑1981 made on the basis of Notification No. Admn/SC/87/81, dated 30‑3‑1981 is without lawful authority and of no legal effect. Petition is partly allowed. M. Y. H. Petition partly allowed.