2004 PLP 578 (CLC)

SABIHUDDIN AHMED, J.

The petitioner is the owner, of the market in Marriott Road, Karachi and appears to be aggrieved by the demand of water charges on the part of the respondent No.1. He received a bill requiring him to pay Rs.2,67,099 on 20-11-1999, which included an amount of Rs.1,55,232 by way of water charges. He contends that while he is ready and willing to pay conservancy rates and other charges, he could not be held liable to pay any amount by way of water supply fee on the ground that admittedly no water is being supplied by the respondent No.1 at his premises and, therefore, no fee could he claimed.

2. Mr. Nooruddin Sarki learned counsel for the petitioner contended that the fact that no water connection had been made available by the respondent at the petitioner's premises is inter alia acknowledged by a letter from the Executive Engineer City Division of the respondent No.1 dated 9-6-1994 addressed to the Deputy Director Taxes in the following terms:-- "With reference to your above letter site has been inspected by the field staff of this Division and found that there no water connection exists at Plot No.MR/2/41, /42." Indeed the said allegation is not rebutted by the respondents even in their counter-affidavit.

3. Mr. Sarki argued that section (ii) of the Karachi Water and Sewerage Board. Act enables the respondent No 1 to "levy, collect or recover rates, charges of fees for water supply ...."

4. He further argued that there was an essential difference between a tax and a fee and the respondent No. 1 is empowered to levy any general purpose tax. The fee by its very nature can only be levied for service actually rendered and not otherwise, therefore, the petitioner is not liable to pay any fee for supply of water as long as no supply is being made.

5. In support of his contention Mr. Sarki relied upon a number of precedents from superior Courts including the pronouncements of the Honourable. Supreme Court in Muhammad Ismail v. Chief Cotton Inspector PLD 1966 SC 388 and Government of N.-W.F.P. v. Rahimullah 1992 SCMR 750, where their Lordships have emphasized the distinction between a tax and a fee to the effect that whereas a tax is a compulsory exaction of money by public authorities and is not payable for a particular purpose, whereas a fee can only be levied by way of recompense for a particular service that may be provided.

6. On the other hand Mr. Abdul Karim Khan learned counsel for respondents attempted to dispute the contention that no water was being supplied by the respondents. However, he was not able to pursue this point further upon being pointed out that such fact had been acknowledged by the officers of the respondents itself and had not even been disputed in the counter-affidavit.

7. Learned counsel then placed before us copies of water rate schedule Notification dated 27-6-1998 issued by the Government of Sindh whereby the water rates .had been notified with the sanction of the Government under section 8(4) of the Act in respect of different categories of un-metered buildings. Learned counsel specially referred to the category of commercial unmetered (where meter to determine the quantum of supply have not been installed) buildings in the commercial category and the water rates indicated against them which may be reproduced as follows:-- S. No. Category Water rates

1. I-Not connected with water line 49% of NARV

2. II-connected directly or indirectly with water line. 69% of NARV

8. He also pointed out that conservancy charges were leviable to the extent of 50% of the water charges and, therefore, according to learned counsel the schedule explicitly showed that even in buildings not connected with water line water charges had to be paid in terms of the aforesaid schedule.

9. We have carefully considered the respective contentions of learned counsel from both sides. Though prima facie the terms of the schedule do appear to support Mr. Karim Khan's contention, we cannot overlook the principle that the schedule must conform to the requirement of the parents statute. Indeed if water charges were collectable by the respondents irrespective of the question whether any services were rendered, such a levy could only be treated as a tax for general revenue purposes. We have not been able to find any provision in Karachi Water and Sewerage Board Act, 1996 enabling the respondents to levy any tax. In fact both sections 7 and 8 indicate that it is only competent to collect a charge for supply of water. No doubt the rates prescribed in such cases may not invariably conform to the quantum of services rendered but it has to be shown that some service was being rendered. We may also add that at one time the respondent was a part of the Karachi Metropolitan Corporation, which had .the authority to levy local taxes but we are extremely doubtful whether the Legislature ever intended to confer the power to levy taxes upon autonomous corporations like the one the respondent has become pursuant to the 1996 Act. In the circumstances, we are of the view that the water rate relating to commercial premises not connected with water line is only intended to serve a national purpose for determining the quantum of water charges payable but does not authorize the respondent to collect charges from a person who is not provided with any services contemplated in the 1996, Act. The petition is accordingly allowed and the respondents are restrained from collecting water charges till such time as supply to the petitioner's premises is made. S.A.K./N-5/K Petition allowed.