2016 PLP 104 (CLCN)

SHAUKAT ALI MEMON, J.

The petitioner being aggrieved with the demand notice for recovery of water and sewerage charges issued by Respondent No. 1 for the water supply and sewerage, which according to petitioner were never provided as there is no connection for water supply or for sewerage at the premises of the petitioner. The amount so claimed for the period 2005-2006 is Rs. 1,04,925/- to which representative of the petitioner is stated to have visited the office of Respondent No. 1 but was instructed to pay the bill as such after sending a legal notice and finding no other efficacious, adequate and alternate remedy, the instant petition is filed with the prayer to declare the demand of the Respondent as illegal, void, ultra vires.

2. The Respondent No. 1 in their C/A did not deny the ownership of the property by the petitioner but disputed the fact of non-existence of water connection, because as per their record 1/2 Dia water connection exists at the suit property which was constructed in the year 1987.

3. According to Respondent No.1, the charges are paid up to 2004-2005 and in proof, copy of the paid challan is produced. It is further stated that the ground floor consists of shops whereas the upper floor consists of godowns and offices, therefore, for the 171 shops and 80 godowns/offices, the total water tax calculated is Rs: 83940/- at the rate of Rs: 300/- per shop, per annum, and Rs.408/- per godown/office, is legal and lawful. According to the Sindh Government Gazette dated 4/10/2001, the charges are made recoverable even when properties are directly connected or not connected with water source.

4. It appears that a Commissioner was appointed to verify the existence of water connection at the subject premises, or otherwise, who in his report dated 19/10/2009, with reference to Mr. Amanullah XEN Karachi Water and Sewerage Board (KW and SB) present at the time of site inspection, reported that as per XEN no water connection was applied by the petitioner to the Water Board, therefore no water connection was given by Respondent No. 1 nor was found by the Commissioner during the inspection.

5. It further appears that initially the Nazir was given mandate for ascertaining the water connection only, thus he was again ordered on 25/10/2010 to examine the entire premises for sewerage connection as well. The second report dated 13/12/2010 reveals that no sewerage connection was found available in the premises. This was also confirmed by Superintendent Engineer of Respondent No 1, Mr. Abdul Majeed.

6. In the above scenario, it is argued that the Respondent cannot recover for the charges of the services not provided or not availed by the petitioner, thus the demand of the water and sewerage charges is illegal and mala fide and relied upon case law 2004 CLC 578 (Nizar Ali v. Karachi Water and Sewerage Board and others) and two unreported judgments of this Court in C.P. No. D-1342 of 1998 and C.P. No. D-197 of 2000.

7. Conversely, learned counsel for the Respondent No. 1 argued with reference to that Gazette notification, that rates of water and sewerage charges were revised with the approval of the Government from July 2001, and according to that notification, the sewerage tariff is made applicable to all the bulk and retail water consumers irrespective of their location who are discharging their sewerage either through KW and SB Sewerage System or any other system directly or indirectly collectively or individually anywhere. However; nothing is stated in respect of water charges.

8. We have considered the arguments and case law cited and in the light of report of the Nazir.

9. It is the consistent view of this court in cases of M/s. Javedan Cement Limited, Nizar Ali, and Mohammad Ajmal that where water is not supplied or where no connection is available for the premises, KW and SB cannot make demands for the services not availed by the occupants/owners. However, for sewerage and conservancy charges, the opinion is different as this is held to be nature of the tax, which is charged according to the notification under reference providing that charges are recoverable regardless of whether the sewerage is disposed of directly or indirectly. We therefore allow the petition to the extent of demand for recovery of water charges only and declare the demand of Rs.83940/- (X-4) as illegal and decline the petition for sewerage tax. Respondent No. 1 is restrained from recovering the water charges till such time the supply to petitioner's premises is made available and availed. Order accordingly. ZC/S-4/Sindh Order accordingly.