1997SCMR503 (PLP)

AJMAL MIAN, J.‑‑‑By this common judgment, we intend to dispose of the above six appeals as they involve interpretation of the common Notification and common Resolutions passed by the Karachi Water and Sewerage Board, hereinafter referred to as the Board. Civil Appeal No.69‑K of 1986 (which has been filed with the leave of this Court), is directed against the judgment dated 8‑12‑1985 passed in C.P. No. J46 of 1986, filed by the appellant, which owns and runs a hotel, challenging certain demands of water tax, hereinafter referred to as the water rates, dismissing the same; whereas, the remaining five appeals have also been filed with the leave of this Court by the Board against the common judgment dated 10‑11‑1985 passed in C.P.s. Nos.D‑228 of 1983, D‑465 of 1983, D‑539 of 1983, D‑632 of 1983, and D‑695 of 1983, respectively, filed by respondent No.l, impugning certain demands of water rates in each of the above appeals, allowing the same partly in the following terms:‑ "We, therefore, partly allow the writ petitions and declare that the Karachi Water and Sewerage Board cannot claim from the petitioners Water Charges at the enhanced rate retrospectively and the SITE is also not entitled to charge retrospectively prior to decision dated 27‑3‑1982. The petitions cannot be allowed except to the extent mentioned above and are therefore otherwise dismissed and the decision of Karachi Water Management Board dated 27‑3‑1982, is upheld. Looking to the special circumstances of the case we do not propose to make any order as to costs in any one of these petitions."

2. The brief facts are that the Karachi Metropolitan Corporation, in exercise of the powers contained in subsection (2) of section 62 of the Sindh Local Government Ordinance, 1979, hereinafter referred to as the Ordinance, issued Notification dated 30‑3‑1981, hereinafter referred to as the Notification, notifying the water rates in terms of Schedule to it, which read as follows:‑‑

Property. Residential

1. Ground Floor Water rate per mensum (i) Up to 60 sq. yds. (ii) 61 to 120 sq. yds. (iii) 121 to 200 sq. yds. (iv) 201 to 300 sq. yds. (v) 301 to 400 sq. yds. (vi) 401 to 600 sq. yds. (vii) 4601 to 1000 sq. yds. (viii) 1001 to 1500 sq. yds. (ix) 1501 to 2000 sq. yds. (x) 2001 sq. yds. and above.

2. Each Additional Floor

3. Any property not connected with water line.

4. Flats (covered area). (i) Up to 500 Sq. ft. (ii) 501 to 800 sq. ft. (iii) 801 to 1000 sq.ft. (iv) 1001 to 1200 sq.ft. (v) 1201 to 1500 Sq.ft. (vi) 1500 to 1800 sq.ft. (vii) More than 1800 sq.ft. (viii) up to 500 sq.ft. not connected with water line Rs.4.00

5. Commercial and Industrial. (i) Not connected with water line. (ii) Connected with water line. Rs. 6.00 Rs. 8.25 Rs. 12.00 Rs.18.00 Rs.25.00 Rs.35.00 Rs.50.00 Rs.100.00 Rs.125.00 Rs.150.00 50 % of the ground floor. Rs.8.25 Rs.12.00 Rs.15.00 Rs.20.00 Rs.30.00 Rs.50.00 Rs.60.00 6 % of the Net annual rental value. 9 % of the Net annual rental value."

3. It seems that the Governor of Sindh Promulgated Karachi Water Management Board Ordinance, 1981, hereinafter referred to as Ordinance No.X of 1981, gazetted on 21‑5‑1981, inter alia providing for the constitution of the Karachi Water Management Board for carrying out the purpose of Ordinance No.X of 1981, namely, supply of water in Karachi Division. Section 9 thereof defines the powers and functions of the Karachi Water Management Board, which included the responsibility for the Supply and Distribution of water in Karachi Division from the filter plants and to levy, enhance, reduce or revise water charges in the prescribed manner; provided that any such action shall be taken keeping in view the supply of water on ' No Loss No Profit' basis.

4. It appears that the Karachi Water Management Board on 29‑10‑1981, after discussing Item No.9 of the Agenda, passed Resolution No.7, hereinafter referred to as Resolution No.7. It may be advantageous to reproduce the above Item No.9 and Resolution No.7, which read as follows:‑‑ "ITEM N0.9: 'A' Adoption of water rates already prescribed vide Notification No.Adm/Sec/87/81, dated 30th March, 1981. After discussion on the subject, it was resolved that:‑‑ Resolution No.

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 KWMB and made applicable with effect from 21st May, 1981, i.e. the date on which KWMB 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 notifications. "

5. It also appears that after the passing of the above Resolution, a Committee was constituted under the Chairmanship of Mr. Abdul Khaliq Allahwala, which has been described as the Allahwala Committee in the documents, to examine the question of levy of the water rates pursuant to Resolution No.7. Upon submission of the report by Allahwala Committee, the Karachi Water Management Board passed Resolution No.2, hereinafter referred to as Resolution No.2, in the meeting held on 27‑3‑1982. The relevant extract of the Minutes of the above meeting reads as follows:‑‑ "

4. Fixation of water rates in respect of categories not specified in the Notification No.Admn/Sc/87/81, dated 30‑3‑1981. After discussion on the subject, the Board approved the recommendations of the "Allahwala Committee" with some modifications and prescribed the following rates for categories nor specified Notification No.Admn/Sc/87/81, dated 30‑3‑1981:‑‑ Resolution No.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 30‑1‑1981.

For all categories of properties/consumers not specifically covered under Notification No..Admn/Sc/87/81, dated 30‑3‑1981 and where metered connections have been provided (except the categories mentioned Bereunder). Rs. 4.50 per 1000 gls.

2. Industrial and commercial consumers including agriculturalists/Farmers Rs.6.00 Per 1000 gls

3. Residential‑cum‑commercial properties/units/flats not connected directly or indirectly with water mains. Rs. 6.00 4.Residential‑cum‑commercial properties/units/flats connected directly or indirectly with water mains. Additional 50% of the rates prescribed for the category. Additional 50% of the rates prescribed for the category 3 above OR‑9% of MARV whichever is higher.

5. Water used for construction Double the normal rates on the basis purposes of the property of plot area of proposed building as (for a period of 2 years per approved Plan‑OR‑Rs. 4.50 per from the date of 1000 gls. in case meter connection is connection). obtained by consumer (at consumer option).

6. In case of Government Same rate as is applicable to private Buildings buildings of corresponding category. 7.Parks and Playgrounds. Rs. 3.00 per 1000 gln. on the basis of meter reading or assessed consumption.

8. In case of use of water for Same rate as mentioned against construction of additional section 5 above floors in the existing buildings.

1. In case of defective meters, billing will be made on average consumption assessed on the basis of at least 3 months previous consumption.

2. In case of defective meters of Parks and Playgrounds, consumption will be estimated on the basis of size in water mains of the locality. Other points mentioned in the recommendations of the "Allawala Committee" were referred to the 'Tariff Committee' for further study and recommendations."

6. It may be observed that by Sindh Ordinance No.II of 1983 promulgated on 25‑1‑1983, Chapter XVI was added to the Ordinance, whereby Ordinance No.X of 1981 as well as Chapter VII of the Karachi Development Authority Order, 1957, were repealed and a Board in the name of Karachi Water and Sewerage Board was constituted, which is respondent in the above first appeal. The above Chapter contains provisions similar to the provisions provided for in the repealed Ordinance No. X of 1981 including section 124, empowering the Board to collect or recover rates, charges or fees for water supply and sewerage service, including arrears thereof.

7. It seems that the appellant in Civil Appeal No.69‑K of 1986 was receiving water from the K.D.A.line. According to the appellant on 6‑5‑1980, a meter was installed for charging the water rates by the K.D.A. After the passing of Resolution No.2, the Karachi Water Management Board demanded water rates on the basis of the Notification i.e. on the basis of net annual rental, instead of on the ‑basis of Resolution No.2, namely, meter reading. The above demand was contested by the appellant in the above appeal. Eventually, the said appellant filed aforesaid Constitution Petition No. 149 of 1985, which was dismissed as stated hereinabove. Thereupon, the appellant filed a petition for leave to appeal, which was granted on the ground that there were conflicting judgments of the High Court on the question, whether Karachi Water Management Board was entitled to levy water rates on the basis of meter reading or on the basis of net annual rental value.

8. The respondent No.l in the remaining five appeals, received bills for the water rates on the basis of meter readings in terms of Resolution No.2 and not on the basis of net annual rental. They contested the above demand on the ground that they were liable to pay. water rates on the basis of net annual rental. They also contested the above demand on the ground that Resolution No.2 could not be enforced retrospectively. Eventually, they filed the above Constitution petitions, which were allowed partly in the above terms. Thereupon, the Board filed five petitions for leave to appeal, which were granted to consider, whether the question of retropectivity in the matter of collection of water rates in question was involved in the above five appeals.

9. We may observe that from the impugned judgment in Civil Appeal No.69‑K of 1986 and the common judgment, which is the subject‑matter of the remaining five appeals, it is evident that the Board has taken inconsistent pleas, inasmuch as in Civil Appeal No.261‑K of 1986, the case before the High Court as well as before the Board was, that the appellant was liable to pay on the basis of net annual rental under sub‑para. (ii) of para. 5 of the Notification relating to commercial and industrial properties; whereas, in the remaining Civil Appeals, before the High Court as well as before us, the plea was that the Board was entitled to charge water rates on the basis of meter reading in terms of para. 2 of Resolution No.2.

10. The above inconsistent pleas found with the learned Judges of two different Division Benches of the High Court of Sindh, which decided separately Constitution Petition No. 149 of 1986 and the remaining five Constitution petitions. We called upon Mr. Abrar Hassan, learned counsel appearing for the Board, to explain as to how it is open to the Board to take two inconsistent pleas in respect of two sets of cases. His submission was that the appellant in Civil Appeal No.69‑K of 1986 is running a hotel; whereas, appellants in the remaining appeals are running textile factories etc. The above distinction has no relevance in the context of the contents of the Notification and Resolution No.2.

11. We have already reproduced the Schedule of the Notification where under para. 5, commercial and industrial properties are covered. However, there is a sub‑division between the properties, which are not connected with water line, and the properties which are connected with water line, as to the rate of water rates. It may further be observed that under para. 2 of Resolution No.2, the rate for water rates is provided for industrial and commercial consumers including agriculturists/farmers. In other words, para. 2 of the Resolution No.2 covers industrial and commercial properties. It is, therefore, evident that no distinction can be made out merely on the ground that the appellants in Civil Appeal No.69‑K of 1986 is running a hotel whereas, respondents in the remaining five appeals are running textile factories etc. Both the purposes are covered by the terms "industrial" and "commercial" used in the Notification as well as in Resolution No.2.

12. We may now revert to the controversies involved in the above appeals. In Civil Appeal No. 69‑K of 1986 the question in issue is, as to whether the appellant is liable to pay water rates in terms of para. 5 of the Notification on the basis of net annual rental or under Para. 2 of Resolution No.2 on the basis of meter reading whereas in the remaining five appeals, the questioned issue is, whether t e water rates specified in Resolution No.2 (which was passed on 27‑3‑1992) are to be recovered retrospectively or prospectively from the date of the Resolution. 13 Adverting to the above first controversy, it may be observed that Mr. Abrar Hassan has vehemently urged that Resolution No.7 adopted water rates with effect from 21‑5‑1981 as were provided in the Notification which were applicable throughout Karachi Division and which were to remain in force till any further decision by the Board. His further submission was that under Resolution No.7, it was also resolved that the Board shall prescribe water rates separately for categories of properties and areas etc. not clearly specified in the Notification, According to him, Allahwala Committee was constituted to provide water rates for the categories of properties and areas etc. not clearly specified in the Notification and, hence, Resolution No.2 covers only those properties which were not covered by the Notification. His further submission was that even under para. 4 of Resolution No.2, the Board has the option to levy rates either on the basis of meter reading or on the basis of net annual rental.

14. We enquired from Mr. Abrar Hassan, learned counsel for the Board, to point any of the industrial and commercial properties, which were not covered by Para. 5.of the Notification in order to demonstrate the plausibility of his above submission. He was unable to point out specifically any category of industrial and commercial consumers which was not covered by para.

5. However, he has referred to the contents of Resolution No.2 particularly para. 1 thereof, which provides water rates at Rs.4.50/per thousand gallons for all categories of properties consumers not specifically covered under the Notification and where meter connections have been provided except the categories mentioned after above para.

1. It may be pointed out that above para. 1 of Resolution No.2 itself carves out an exception by providing that "except the categories mentioned hereunder Above Para. 1 of Resolution No.2 is followed by Para. 2, which provides water rates at Rs.6.00 per thousand gallons for industrial and commercial consumers including agriculturists/farmers. Above para. 2 clearly covers the case of the appellant in Civil Appeal No.261‑K of 1986, unless we hold that Para 5 of the Notification continues to apply. Since Resolution No.2 is subsequent to the Notification and as its Para. 2 more aptly covers the case of the appellant in Civil Appeal No.261‑K of 1986, inasmuch as it provides levy of water rates on the basis of meter reading and in their case, a meter has been provided, levy of water rates on the basis of net annual rental cannot be pressed into service it terms of para

5. The above construction is consistent with the plea taken up by the Board in the above remaining five appeal. Reliance of Mr. Abrar Hassan on para. 4 of Resolution No.2 is misconceived as the above para. relates to residential‑cum‑ commercial properties and does not pertain to industrial and commercial properties.

15. As regards the above second controversy, namely, whether the water rates specified in Resolution No.2 (which was passed on 27‑3‑1982), are to be recovered retrospectively or prospectively from the date of the Resolution, it may be stated that it is well‑settled proposition of law that a Notification or an administrative order cannot operate retrospectively to the disadvantage of the persons affected by it and, therefore, the conclusion of the High Court seems to be in consonance with the above settled proposition of law. However, Mr. Abrar Hassan has submitted that under sub‑clause (ii) of section 124 of the newly added Chapter in the Ordinance, the Board has been empowered not only to collect or recover future water rates but also to recover arrears thereof and, hence, under Resolution No.2, the arrears could have been recovered at the rates mentioned therein for the period prior to the date of Resolution. It appears that he, while making the above submission, has overlooked the fact that the arrears of water rates were to be recovered at the rates which were obtaining prior to the date of passing of the Resolution. The above sub‑clause (ii) of section 124 does not, in any way, empower the Board to recover the arrears of water rates at the rates which were not applicable at the relevant time or in respect of which proceedings under the relevant rules were not initiated.

16. Then, he submitted that under clause (ix) of section 147 of the above newly‑added Chapter XVI, the above levy of water rates retrospectively, has been validated. The above clause (ix) reads as follows:‑‑

"(ix) everything done, orders issued, powers delegated, approval accorded, persons appointed, water charges and surcharge levied, actions taken by the Karachi Development Authority in relation to bulk water supply, and the Karachi Water Management Board, powers and jurisdiction conferred, rules and regulations made, and in general all other acts done deeds executed under any of the provisions of the repealed enactments or under the directions or decision of Government or Resolutions of the Karachi Water Management Board shall, if not inconsistent with the provisions of this Ordinance, continue to be in force and be deemed to have been done, issued, delegated, accorded, appointed, levied, taken, conferred or made under this Ordinance;"

17. The above contention is devoid of any force, firstly, the perusal of above‑quoted Resolution No.2 does not indicate that it was intended to be enforced retrospectively, and secondly, the above clause (ix) of section 147 saved rules and regulations made and in general all other acts done, deeds executed under any of the provisions of the repealed enactments or under directions or decisions of the Government or Resolutions of the Karachi Water Management Board, if not inconsistent with the provisions of the Ordinance. Any levy of water rates retrospectively under a Resolution of the Board will be inconsistent with the provisions of the Ordinance, as the Ordinance does not anywhere empower the Board to increase the rate of water rates retrospectively through a notification or an administrative order.

18. The upshot of the above discussion is that Civil Appeal No.69‑K of 1986 is allowed and the judgment of the High Court is set aside. It is declared that the Board is entitled to recover water rates in terms of Resolution No.2 from the date of the Resolution and prior to the date of Resolution, at the rates then obtaining; whereas, the remaining five appeals are dismissed. However, there will be no order as to costs in all the above appeals. A.A./T‑111/S Order accordingly.