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Petitioner: MUNIRUDDIN QIDWAI AND 2 Other VS Respondent: KARACHI DEVELOPMENT AUTHORITY AND JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Imdad Ali H. Agha Title:MUNIRUDDIN QIDWAI AND 2 Other vs KARACHI DEVELOPMENT AUTHORITY AND
JUDGMENT
Reported As: PLD 1972 Karachi 521 Result: Petitions accepted Judgment JUDGMENT MUHAMMAD HALEEM, J. This judgment will dispose of Petitions 29, 81, 84 and 256 of 1971 as common questions of law arise in all these petitions. 2. These petitions more or less relate to the same relief but are different on some factual details. It will, therefore, be convenient to give a short statement of facts of these petitions separately. Petition No. 29/71.-There are three petitioners who have joined together. Petitioner No. 1 owns building, on Plot No. C/110/A, measuring 600 sq. Yards in North Nazimabad, Karachi. Petitioner No. 2 owns building on commercial Plot No. S/Q/1, sub-block B', measuring 21389 sq. Yards while peti-- tioner No. 3 owns building on Plot No. B/94/C, measuring 400 sq. Yards in the same locality. North Nazimabad was in March 1960 included within the K. M. C. Limits, upon which respondent No. 2 levied and collected water charges at the rate of 6-- % of the assessed value of the property from July 1960 till June 1967. There is no dispute about this recovery from the petitioners. Towards the close of the year 1968, respondent No. 1 issued water bills at the uniform rates of Rs. 16.50 per month to the owners of the buildings in North Nazimabad and realised from water charges for the period, July 1967 to June 1968 and July 1968 to June 1969. The petitioners claim that they paid the water charges under the impression that respondent No. 1, acting as agent of respondent No. 2, was bound to supply water to respondent No. 2, which is a constituent body ins terms of Article 114 of the K. D. A. Order, 1957. Again, towards the end of 1970 respondent No. 1 issued water bills for the period for which respondent No. 2 had realised water charges and also for the period for which respondent No. 1 itself had recovered the charges at the flat rate depending on the area of the plot and nature of construc--tion, that is, whether it was single or double storey. As to commercial plots
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according to petitioner No. 2, the determination of water charges was not according to any criterion but arbitrary. Petitioner No. 1 received a bill for the payment of Rs. 4,471.08 at the rate of Rs. 54.80 per month for the period, 18th November 1957 to 30th November 1970. Petitioner No. 2 received two bills, one dated 26th June 1968 for the payment of Rs. 52,079.38 for the period, 1st September 1961 to 30th June 1968 and the other dated 29th October 1970 for the payment of Rs. 1,64,867 for the period, 13th June 1961 to 13th October 1970. Petitioner No. 3 received a bill for the payment of Rs. 2,992.80 for the period ending 30th September 1970. The petitioners thereupon represented to respondent No. 1 against the above illegal demands but they were told that the recovery was being made in accord--ance with the office Order No. 8/16/RWC/1560 dated 17th June 1970 of the Chief Engineer who was competent to levy and order for the recovery of the above charges. They were also referred to an office Note No. 8/16/38/5927 dated 12th August 1961 accompanying a proposal of the Chief Engineer but they were further informed that this office note was being acted upon. Not being satisfied with the legality of the demand, the petitioners sent a notice to respondent No. 1 to withdraw the water bills and to desist from disconnecting water supply but they received no reply. Accordingly the petitioners filed the petition, by which they impugn the above office order dated 17th June 1960 and the office note dated 12th August 1961 and claim a relief for a declaration that they be declared as without lawful authority, to compel respondent No. 2 to supply water to the residents of North Nazimabad pursuant to section 52 of the Municipal Administration Ordinance and to restrain respondent No. 1 from recovering water charges. As an alternative to the above relief, a direction is asked to compel respondent No. 1 to refrain from realising water charges in excess of 6--% of the assessed value of the property owned by the petitioners. 3. The case of respondent No. 1 is that North Nazimabad fell in Scheme No. 2 which was framed and executed under the provisions of the Karachi Improvement Trust Act, 1950 to pro--vide housing and other facilities. This scheme was duly approved by the Central Government in the year 1953 vide letter dated 15th June 1953. Subsequently, it was revised and duly approved by the Provincial Government vide order dated 7th August 1964. According to the project estimate and revenue receipt statement, it was a self-financing scheme, which envisaged the supply and distribution of water not only for the purpose of construction but also for domestic use. The scheme was executed in stages and It was intended to be completed by December 1967. The Karachi Improvement Trust at first executed some stages of the scheme but later on when it ass succeeded by respondent No. 1 upon the promulgation of the K. D. A. Order, 1957, the development work was taken in hand by respondent No. 1. It is the case of respondent No. 1 that it had laid the water pipes as provided in the scheme and gave door to door connections to the owners of the buildings who were then the allottees. Peti--tioner No. 1 obtained water connection from respondent No. 1 in November 1957, petitioner No. 2 in February 1960 and petitioner No. 3 in April 1962 and that the consumers were advised to instal water meters and those who had done so were charged at the approved rate of Rs. 1.50 per 1000 gallons accord--ing to the meter reading. Those who failed to instal water meters were charged at the fiat rate as stated earlier. The above rates were duly approved by the competent authority and they were paid without any protest. While admitting that North Nazimabad is included within the K. M. C. Limits it Is denied that the inclusion had the effect of taking over of the distribution of water supply by respondent No. 2 and for that matter of empowering it to levy and recover water charges, It was further asserted that even till today water is being supplied by respondent No. 1 and no arrangement for the supply and distribution of water has been made by respondent No. 2 and, therefore, it has no jurisdiction to levy and recovery water charges from the petitioners. It is also asserted that respondent No. 2 has not framed any bye-laws to enable it to recover water charges from the consumers in this area. In fact, respondent No. 2 failed to accept the responsibility of supplying water to the consumers vide letter dated 11th
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November 1965 and it was under some mis--conception that respondent No. 2 commenced billing the consumers for water charges, but again in 1967 respondent No. 2 agreed not to recover water charges whereafter this responsibility was undertaken by respondent No. 1. It is emphasised that the water supply and distribution was envisaged in the scheme itself and the recovery of water charges is "a step towards the execution and implementation of the scheme". Respondent No. 1 denied acting as an agent of respondent No. 2 and stated that it had recovered the water charges as it was empowered to do so. Iti s also pleaded that what is termed as a recovery of water charges "with retrospective effect" is not so but It is in facet arrears of water charges for that period. Lastly, it is urged that the peti--tioners had entered into separate agreements for getting water connections and that in law it creates contractual liability and, therefore, in 'effect what is being disputed Is the right under the contract to pay for water charges, which is not justiciable in these proceedings. 4. Respondent No. 2 states that the water charges for the year 1962-63 were recovered with the consent of respondent No. 1. However, respondent No. 2 did not recover water charges since 1967 as respondent No. 1 revised its earlier decision. It accepted the fact that respondent No. 1 is supplying the water to the consumers. 5. Petition No. 81/71.--In this petition, petitioner No. 3 was dropped from the proceedings. Petitioner No. l owns a build--ing on Plot No. B-47, measuring 400 sq. Yards in Hussain D'Silva Town, P. Block, North Nazimabad, while petitioner No. 2 owns a building on Plot No. A-34 measuring 200 sq. Yards in the same locality. Both the petitioners had purchased the buildings from Hussain D'Silva Construction Company and it was this company which had applied for the water connection. From July 1962 to June 1967 the petitioners had paid water charges to respondent No. 2 at the rate of 6-- % of the assessed gross rental value of the property, but in April 1968 they received bills from respon--dent No. 1 for payment of water charges at the flat rate of Rs. 16.50 per month. Again towards the close of the year 1969 they received bills for water charges for the period, 1962 to 1967 according to the area of the plot. Finally petitioner No. 1 received bill for payment of water charges at the rate of Rs. 17.40 per month for the period, 8th June 1962 to September 1970. The petitioner No. 2 also received a bill for the payment of water charges at the rate of Rs. 10.40 per month for the period, 1962 to September 1970. The petitioner made representations to respondent No. 1 against the billing for water charges but they were informed that the recovery was being made in pursuance of some office order. They also sent a notice for the withdrawal of the bills but it was without any effect. Respondent No. 1, however, issued notice for the disconnection of the water supply, whereupon the petitioners impugned the recovery of water charges by this petition and claimed that the bills for water charges be declared as without lawful authority and respondent No.1 be directed to refrain from levying and recovering water charges. In the alternative, it is prayed that respondent No. 1 should not be allowed to recover water charges in excess of 6-- % of the assessed gross annual rental value of the property and that further it be restrained from recovering water charges for the period, 1962 to 1967. 6. Respondent No. 1 has taken the same stand as in Petition No. 29/ 71. Additionally, it has pleaded that the recovery of water charges is not a part of the civic duty as contemplated by Article 124 of the K. D. A. Order, 1957. It also claims that the payments made to respondent No. 2 for the period, 1961 to 1967 or to it during the year 1968-69 were duly adjusted and that the rates at which the consumers including the petitioners were billed have been accepted by them. Respondent No. 2 has not filed any counter affidavit in support of its case. 7. Petition No. 84/71.-The petitioner was late Z. H. Lari, an Advocate of this Court who, after the conclusion of the hearing of the petition, died at Peshawar. The petition impugns the recovery of water charges in respect of a bungalow owned by late Z. H. Lari on plot No. 89/F/B In North Nazimabad, the construction of which was completed in March 1963. Respondent No. 2 recovered
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water charges from July 1963 till June 1967. Respondent No. 1 billed late Z. H. Lari for water charges for the period, July 1967 to June 1969 at the flat rate of Rs. 16.50 per month. The water charges were paid by him. Finally against another water bill for the period, July 1969 to September 1969, water charges amounting to Rs. 49.50 at the flat rate of Rs. 16.50 were also paid. In June 1970 his widow, who was the original allottee, received a bill for the payment of Rs. 11,690 for the period, 30th September 1958 to 30th April 1970, at the rate of Rs. 87 per month. She made representations to respondent No. 1 that the bungalow did not belong to her and further that the house was completed only in 1963 and that her husband had paid water charges up to September 1969 to respondent No. 2. Subsequently, respondent No. l issued an amended bill for Rs. 6,994.26 for the period, 1st April 1963 to 31st October 1970, which was to be paid in four equal instalments. The rate charg--ed was Rs. 87 per month and the payments made to respondents 1 and 2 were deducted from the bill. Upon non-payment of the bill, respondent No. 1 threatened to disconnect the water supply and in spite of the representation made in this behalf respondent No. 1 did not withdraw the bill which led to the filing of the petition, in which it is prayed that respondent No. 1 be directed to refrain front realising water charges and that respondent No. 2 be directed to arrange the supply of water to the petitioner pursuant to section 52 of the Municipal Administration Ordinance and in the alternative it is also prayed that respondent No. 1 be restrained from realising water charges for the period ending September 1969 arid also not to recover water charges in excess of 6--% of the assessed value of the property "for the period beginning October 1969". 8. The stand of respondent No. 2 is the same as in Petition No. 29/71. Only this much needs mention that the water connec--tion was taken by his widow in September 1960 as an allottee of the property. Respondent No. 2 has not filed any counter---affidavit in this petition as well. 9. Petition No. 256/71.---The subject-matter of this petition relates to buildings of the petitioners in Scheme No. 16 (Federal B. Area). Petitioner No. 1 is the owner of a building on plot No. 408 in Block No. 8 measuring 120 sq. Yards. Petitioner No. 2 is the owner of building on Plot No. 427 in Block No. 8, measuring 120 sq. Yards while petitioner No. 3 is the owner of building on Plot No. 599 in Block No. 9 measuring 120 sq. Yards. These houses were constructed in the years 1966 and 1967. It is the case of the petitioners that the pressure is the water line com--menced decreasing from 1966 and by 1968 it was so low that there was so hardly any supply in the water taps. As a result thereof water was purchased either from water carriers or the water connection was lowered to the ground level to obtain supply of water, in spite of the undertaking given in the brochure that there would be water supply with sufficient pressure so as to eliminate individual pumping. Grievance is, therefore, made of the fact that additional costs were incurred in addition to the water charges for which the petitioners were billed. Petitioner No. 1 obtained water connection sometime in December 1963 while he was billed for water charges from 5th June 1963. Petitioner No. 2 took water connection on 1st September 1965 and installed the water meter but the charges were not according to the actual meter reading but based on fictitious reading. Petitioner No. 3 also took water connection on 11th March 1965 and installed a water meter yet the water charges were claimed at a flat rate. The petitioners have disputed the billing for water charges at a flat rate of Rs. 8.70 per month for a plot measuring 120 sq. Yards as, according to the respondent's budget for 1964-65, the rate envisaged was 0.87 paisa per 1000 gallons. The water charges could only be recovered according to the volume of water supply at the above rate and the petitioners have challenged the recovery of water charges mainly on the ground that Scheme No. 16 was included within the K. M. C. Limits from August 1965 and, there--fore, it was the K. M. C. Which could recover the water charges at the rate of 61 % of the assessed gross annual rental value of the property and the respondent was not empowered to levy and recover water charges as there is no provision in the K. D. A. Order, 1957 to authorise it to do so. Since water supply was threatened to be disconnected the petitioners filed
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this petition and claimed the relief that the levy of water charges by the respondent be declared as without lawful authority and of no effect. 10. Respondent No. 1 has not filed any counter-affidavit, but the learned counsel for the respondent orally took the same defence at the hearing of this petition. Late Z. H. Lari on behalf of the petitioners in Petition No. 29/71 led the arguments on all the legal aspects involved in these petitions and the counsel for the petitioners in other petitions adopted them. The learned Advocate-General appeared for respondent No. 1 in Petition No. 29/71 while Mr. Shamsul Haq Meson appeared for this respondent in other petitions. Mr. Anwar Ahmad appeared for the Karachi Municipal Corporation which was impleaded as respondent No. 2 in all petitions except Petition No. 256/71. 11. Before adverting to the contentions it will be of advantage to mention the legal foundation upon which these contentions are based. While the Karachi Municipal Act, 1933 was in force, North Nazimabad was included within the Karachi Municipal limits pursuant to a Notification No. 6/14/ 59-LSG dated 9th March 196:x, issued under section 271 (3) of the Act. The Karachi Municipal Act was repealed by the Municipal Administration Ordinance, 1960, and by notification dated 15th April 1950, all the provisions of this Ordinance, except sections 1 and 3 came into force in the federal territory as from 16th April 1960. Again three notifications were issued under the Ordinance, the first date 11th October 1960, under section 7, by which the area described as boundaries of the city of Karachi in Schedule X of the Karachi Municipal Act including North Nazimabad was declared to be a municipality and designated as Karachi Municipal Corpora--tion, the second dated 11th November 1960, under section 8(1), by which the Karachi Municipal Committee was constituted and the third dated 18th July 1951, under section 8(3), by which the Karachi Municipal Committee was designated as Karachi Municipal Corporation. Federal B. Area, which falls in Scheme No. 16, was also included in the K. M. C. Limits in August 1965. There is no dispute about these areas as being within the limits of the Karachi Municipal Corporation. 12. Karachi Joint Water Board Ordinance, 1949, was promulgated on list September 1949. Section 20 relates to the supply of water to a constituent body while section 21 to an individual consumer at a point outside the area subject to the jurisdiction of the Corporation under the Municipal Act. They read as under "20. Supply of water.-Board shall supply to each constituent authority at the place or places specified in the schedule and subject to the terms and conditions (including the levy of an enhanced rate) as may be agreed between the Board and the authority, such quantity of water as may be demanded by the authority, or if the combined demand of the constituent authorities together is more than the Board can supply, then such quantity as the Board may determine in respect of each authority. 21. Supply to individual consumers.-The board may supply water to any consumer- (a) if the water is taken at a point outside the area subject to the jurisdiction of the Corporation under the city of Karachi Municipal Act, 1933, and (b) if water is available after supply water to the con--stituent authorities, under the agreements referred to in section 20." Upon the promulgation of the K. D. A. Order, 1957, this Ordinance was repealed Article 120 of the Order and the same responsibility was taken over by the K. D. A. By virtue of Articles 113 and 114 of the Order which are enacted in the same language, read as under "113. Supply of water to constituent bodies.-The Authority shall continue to supply to each constituent body, subject to such terms and conditions (including the levy of an enhanced rate) as may be agreed upon between the Authority and the constituent body. Such quantity of water as may be demanded by the constituent body or, if the combined demands of the constituent bodies
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together are more than the Authority can supply, then such quantity as the Authority may determine in respect of each constituent body. 114. Supply of water to Individual consumers.-The Authority may supply water to any consumer- (a) if the water is taken at a point outside the area subject to the jurisdiction of the Corporation under the Municipal Act, and (b) if water is available after supplying water to the con--stituent bodies, under the agreements referred to in Arti--cle 113." Before the K. D. A. Order, 1957 was promulgated, the Karachi Improvement Trust Act, 1950 held the field. Scheme No. 2 was initiated under this Act. Upon the repeal of this Act by the K. D. A. Order, the K. D. A. Continued to perform the same functions. Article 11 of the K. D. Order empowered the K. D. A. To submit an outline programme for the development and improvement of the areas within the federal capital and also to submit for approval specific scheme. Since the argument also turned on the construction of this section, it is necessary to reproduce it in extenso:- "11. Power to sanction, reject or revise scheme.-(1) The Authority shall as soon as possible, prepare, and from time to time submit for the approval of the Central Government an outline programme for the development and improvement of such areas within the Federal Capital, as it may consider necessary for the purpose, listing such areas and the approximate order or their development, and outlining the proposed improvement, including the water supply, sewerage and buildings required for residential, commercial and other purposes incidental thereto. (2) The Central Government shall, within such time as may be prescribed by rules, either approve or disapprove any programme referred to in clause (1), or approve with such additions or modifications as, in consultation with the Authority, it deems fit to make. (3) The Authority shall, within such time as may be prescribed by rules, prepare for submission to the Central Government specified schemes set forth in the outline programme, including any other scheme or schemes which the Central Government in writing directs the Authority to prepare, and all such schemes shall contain plans for the proposed development, including approximations of posts proposed, methods of financing, ejectment, and resettlement or rehousing of affected persons Provided that the Authority may without reference to the Central Government execute any scheme the provisional estimated cost of which does not exceed rupees three hundred thousand and specific provision for which exists in the annual estimates of income and expenditure of the Authority. (4) The Central Government may sanction, with or without modification, or may refuse to sanction, or may return for reconsideration, any scheme submitted to it under clause (3), or may call for such further details or information about the scheme, or may direct such further examination of the scheme as it may consider necessary. (5) Where the Central Government has sanctioned a scheme for any area it shall be lawful for the Authority to execute and maintain all works and carry out all operations in the said area required for the execution of any such scheme. (6) As soon as may be after the commencement of this Order, the Central Government may upon such terms and conditions as may be laid down, transfer to the Authority any scheme sanctioned or undertaken by the Central Government or by any local authority or other body and also place at the disposal of the Authority any properties, movable or immovable, connected with or ancillary or appurtenant to any such scheme, and any scheme so trans--ferred shall be deemed to be a scheme sanctioned by the Central Government under this Order. (7) It shall be lawful for the Authority to execute and maintain all works and carry out all unfinished works and operations required for the execution of any scheme transferred under clause (6).
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(8) The Central Government may, upon such terns and conditions as may be laid down place at the disposal of the Authority and properties or funds held by the Central Government or by any local authority or other body, or permit the Authority to levy and retain duties which immediately before the commencement of this Order, was leviable by such Government, authority or body and there--upon the Authority shall hold such properties or funds and levy such duties in accordance with such terms and conditions." Articles, 4, 15 and 124 of the Order were also pressed into service. They need be reproduced and read as under :- "Management.-(1) The general direction and administration of the Authority and its affairs shall vest in the Governing Body which may exercise all powers and do all acts and things which may be exercised or done by the Authority. (2) The Governing Body in discharging its functions shall act on sound principles of development, town-planning and housing with special regard to the re-housing of affected persons and shall be guided on questions of policy by such directions as the Central Government may from time to time give. (3) 1f a question arises…
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