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Petitioner: SEVENUP BOTTLING COMPANY (PVT.) LTD. VS Respondent: LAHORE DEVELOPMENT
Court Name: Lahore High Court Judge(s): Sayed Zahid Hussain, Chaudhry Ijaz Ahmed Title:SEVENUP BOTTLING COMPANY (PVT.) LTD. vs LAHORE DEVELOPMENT
JUDGMENT
Reported As: 2003 CLC 513 Result: Petitions disposed of Judgment JUDGMENT ' CH. IJAZ AHMAD, J.--- We intend to decide the following writ petitions by one consolidated judgment having similar facts and law:- (1) Writ Petition No,5683 of 1988, (2) Writ Petition No,13457 of 1999, (3) Writ Petition No,5680 of 1988, (4) Writ Petition No,4524 of 1988, (5) Writ Petition No,5783 of 1988, (6) Writ Petition No,4566 of 1994, (7) Writ Petition No,5262 of 1989, (8) Writ Petition No,5655 of 1988, (9) Writ Petition No,5707 of 1988, (10) Writ Petition No,10738 of 2000, (11) Writ Petition No,13548 of 2000, (12) Writ Petition No,1533 of 2000, (13) Writ Petition No,21816 of 2000, (14) Writ Petition No,8782 of 2000, (15) Writ Petition No,1913 of 2000, (16) Writ Petition No,1912 of 200 , (17) Writ Petition No,1597 of 2000, (18) Writ Petition No, 162 of 2000, (19) Writ Petition No,4588 of 2000, (20) Writ P tition No,2159 of 1992, (21) Writ Petition No,14790 of 1999, (2k) Writ Petition No,2164 of 1991, (23) Writ Petition No,4595 of 1998, (24) Writ Petition No,9564 of 1998, (25) Writ Petition No,9245 of 1991, (26) Writ Petition No,8987 of 1991, (27) Writ Petition No,4091 of 1991, (28) Writ Petition No,6121 of 1994, p9) Writ Petition No,11613 of 1996, (30) Writ Petition No,11607 of 1996, (31) Writ Petition No,11608 of 1996, (32) Writ Petition No,11609 of 1996, (33) Writ Petition No,11610 of 1906, (34) Writ Petition No,17753 of 1995, (35) Writ Petition No,14960 of 1999, (36) Writ Petition
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No,14959 of 1999, (37) Writ Petition No,14647 of 1999, (38j Writ Petition No,11612 of 1996, (39) Writ Petition No,11611 of 1996, (40) Writ Petition No,4088 of 1993, (41) Writ Petition No,11091 of 1991, (42) Writ Petition No,1734 of 1989, (43) Writ Petition No,4525 of 1988, (44) Writ Petition No,5831 of 1988, (45) Writ Petition No,311 of 1989, (46) Writ Petition No,359 of 1989, (47) Writ Petition No,314 of 1989, (48) Writ Petition No,382 of 1989, (49) Writ Petition No,315 of 1989, (50) Writ Petition No,4922 of 1989, (51)'' Writ Petition No,4305 of 1989, (52) Writ Petition No,6007 of 1988, (53) Writ Petition No,5646 of 1988, (54) Writ Petition No,312 of 1989, (55) Writ Petition No,1743 of 1989, (56) Writ Petition No,313 of 1989, (57) Writ Petition No,7149 of 1989, (58) Writ Petition No,20024 of 2001 and (59) Writ Petition No,8424 of 2002. ' The petitioners have challenged the vires of Notification dated 25-2-1988 issued by respondents under section 28 of the Lahore Development Authority Act, 1975 (No,XXX of 1975) whereby rates and fees have been levied in respect of water supply and sewerage operations under the heading of Sewerage and Aquifer Charges. 2. Mr. Zahid Hamid Khan, Advocate submits that rates and fees claimed by the respondents on the basis of aforesaid Notification are illegal and without lawful authority and raised following arguments in support of his claim:-- (i) That notification dated 25-2-1988 (attached with the report and parawise comments by the respondents), must be read as a whole, the opening part of the said notification reveal that the respondents have prescribed rates and fee in respect of its water 'supply and sewerage operations w,e,f, Ist January, 1998; item No,2 sewerage consists of following three categories: -- (a) Domestic (connected with water supply) at the rate of 10% of water rate; (b) Industrial/Commercial (connected with water supply), (i) Industrial Rs,2.50 per 1000, (ii) Commercial Re.0.50 per 1000 gallons, (c) Industrial, commercial, Government and semi-Government organization, corporate bodies etc. (Not connected with WASA water supply but directly connected with sewerage), size of tube-well 1- cusec Rs,5,000 per month, 1/2 cusec Rs,2,500. Rate to increase or decrease in proportionate to the rate of one cusec. ' According to him if the notification is read as a whole then it is not sustainable in the eyes of law on the well-known doctrine of pith and substance. In support of his contention he relied upon the following judgments: (1) Syed Ghulam Ali Shah v. The State through A.D.M. And Tribunal, Sanghar PLD 1970 SC 253; (2) Pir Rashid ud Daula and 3 others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 401, (3) Brig. (Retd.) F.B. All and another v. The State PLD 1975 SC'506, (4) Central Provinces and Babar Sales of Motor Spirit AIR 1939 FC 1, (5) The Progress of Pakistan Co. Ltd. v. Registrar, Joint Stock Companies, Karachi (2) The Islamic Republic of Pakistan -PLD 1958 Lah. 887, (6) The Pracha Textile Mills Ltd. v. Pakistan and others PLD 1963 Kar, 319, (7) Haji Multan Zareen and 56 others v. Government of N.- W.F.P. And another PLD 1980 Pesh. 137 and (8) Nishat Mills Ltd., Nishatabad, Faisalabad v. The Federation of Pakistan through Secretary, Ministry of Food and Agriculture and 4 others PLD 1994 Lah. 175. (ii) That there is difference among the words charge, rate, fee and tax as they have different meanings. He relied upon following:-- DEFINITIONS co Dictionary Webster's Unabridged Dictionary ofCharge A fee or price charge; a pecuniaryRate Any tax assessed andFee A charge or payment for serviceTax A sum of money demanded by
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English Language Black's Law Dictionary 5th Edition. The Oxford Dictionary Fourth Edition.burden, encumbrance, tax or lien; cost, expense Price of or rate of something; Incumbrance, lien or claim Expense Price demanded for service or goods.paid to a Local Government Charge to public for service (of a public utility). Price for service measured by specific unit or standard Measure of value, tariff charge, cost. Assessm ent levied by Local Authority for local purposes.Charge fixed by law for services of public officers or for use of a privilege under control of Government Sum payable to Public Officer for performing his function Remuneration of lawyer etc. or any professional man.Government for its support or for specific facilities or services levied upon income, properties etc. Burdensome charge, objection etc. Any contribution imposed by Government upon individuals for the use and service of the State Essential characteristics that it is not a voluntary but a forced contribution exacted pursuant to legislative Authority. ' He also relied upon the following judgments in support of his contention qua the meaning of aforesaid words:-- (1) Mian Ejaz Shafi and others v. Federation of Pakistan and others PLD 1997 Kar. 604; (2) Mondi's Refreshment Room and Bar, Karachi v. Islamic Republic of Pakistan and another PLD 1983 Kar. 214 and Ahmad Khan v. (1) The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore, (2) The Member, Board of Revenue, West Pakistan, Lahore and (3) Muhammad Saeed PLD 1968 SC 171. (iii) That respondents have no authority to impose fee without rendering any service. It is contended that in fact the respondents have levied fee in the garb of tax, therefore, impugned notification is ultra vires the Constitution of Islamic Republic of Pakistan, 1973 and liable to be set aside. In support of his contention he relied upon the following judgments: (1) Mian Ejaz Shafi and others v. Federation of Pakistan and others PLD 1997 Kar, 604, (2) Ayaz Textile Mills Ltd. v. Federation of Pakistan through Secretary, Commerce and another PLD 1993 Lah. 194, (3) Sindh Glass Industries Limited v. Chief Controller of Import and Export, Islamabad and 2 others 1990 CLC 638, (4) Rahimullah Khan and 65 others v. Government of N.-W.F.P. Through Secretary, Agricultural Forest and Cooperation Department, Peshawar and 5 others 1990 CLC 550, (5) Trustees of the Port of Karachi v. Gujranwala Steel Industries and another 1990 CLC 197, (6) Mahboob Yar Khan and another v. Municipal Committee, Mian Channu and 2 others PLD 1975 Lah. 748, (7) Abdul Majid and another v. Province of East Pakistan and others PLD 1960 Dacca 502, (8) Mondi's
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Refreshment Room and Bar, Karachi v. Islamic Republic of Pakistan and another PLD 1983 Kar. 214, (9) Ahmad Khan v. (1) The Chief Justice and the Judges of the High Court, West Pakistan through the Registrar, High Court of West Pakistan, Lahore, (2) The Member, Board of Revenue, West Pakistan, Lahore and (3) Muhammad Saeed PLD 1968 SC 171, (10) Sheikh Muhammad Ismail & Co. Ltd., Lahore v. The Chief Cotton Inspector, Multan Division, Multan and others PLD 1966 SC 388 and (11) Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402. (iv) That the word 'land' includes underneath water and in this regard sought fortification from section 3(g) of L.D.A. Act, 1975, section 3(a) Land Acquisition Act, 1894, section 49, Punjab Land Revenue Act, 1967 and rule 2 (3) of Punjab Mining Concession Rules, 1986 and 1990. Thus the respondents have no authority to impose the fee in question in violation of Articles 23, 24, 77 and 127 of the Constitution. In support of his contention he relied upon the following judgments:-- (1) Malik Muhammad Saleem and another v. Commissioner, Rawalpindi Division, Rawalpindi and 3 others PLD 1976 Lah. 1233 and Lt.-Col. Muhammad Amin Khan v. Government of West Pakistan and others PLD 1966 Lah. 111. (v) That respondents have no lawful authority to impose the tax in question under the provisions of the L.D.A. Act. The only competent Authority is the Legislature to impose the tax in question, therefore, impugned notifications are not sustainable in the eyes of law. In support of his contention he relied upon the following judgments:-- (1) M. Afzal & Son and others v. Federal Government of Pakistan and another PLD 1977 Lah. 1327 and (2) Messrs Dewan Textile Mills Limited, Karachi v. Pakistan through Ministry of Finance and 3 others 1984 CLC 1740. (vi) That respondents imposed fee in the garb of tax, which cannot be imposed by incompetent authority without adopting the proper procedure prescribed under the Constitution. In support of his contention he relied upon the following judgments: ' Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 and Government of Pakistan and others v. Muhammad Ashraf and others PLD 1993 SC 176. (vii) That under the provisions of the L.D.A. Act, 1975 the respondents have no authority whatsoever to levy fee/charges on private tubewells of the petitioners. Hence this levy is not sustainable in the eyes of law on the well-known principle of excessive delegation, In support of his contention he relied upon the following judgments: (1) Messrs Sh. Abdur Rahim, Allah Ditta v. Federation of Pakistan and others PLD 1988 SC 670, (2) Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others PLD 1.983 SC 358 and (3) The Province of East Pakistan v. Sirajul Hach Patwari PLD 1966 SC 854. (viii) That writ petitions do not merit dismissal on the principle of laches. In support of his contention he relied upon the following judgments:-- (1) Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119, (2) Province of Punjab through Secretary, Irrigation and Power Development, Lahore v. Deputy Settlement Commissioner, Lahore and others 1991 SCMR 1592 and (3) Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others PLD 1993 Kar. 237. (ix) That respondents have no authority under the law to impose the charges through impugned notifications in violation of section 28(2) of the L.D.A. Act, 1975. (x) That respondents cannot impose charges without permission of the Authority on the tubewells in view of section 29 (2) of the aforesaid Act. (xi) That the documents attached by the respondents with the report and parawise comments clearly reveal that the charges have been imposed by the Chairman of L.D.A. And the matter was
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never placed before the Authority. Therefore, action of the respondents is hit by section 4 and section 3 (b), (g), (k) of L.D.A. Act, 1975. (xii) He summed up his arguments that charge/fee has been imposed by the respondents to meet the demands of loaning agencies as is evident from the summary submitted by the respondents to the competent Authority, which cannot be made basis for such a levy. 5. Mian Nisar Ahmad, Advocate the learned counsel for the petitioner in Writ Petition No,5707 of 1998 submits that petitioner had installed two tubewells before the enforcement of Lahore Development Authority Act, 1975 and there is no contribution of the L.D.A. Authorities qua the installation of the aforesaid tubewells of the petitioner. He summed up his arguments that right to water is common to all. In support of his contention he relied upon "Hadis Nabvi" mentioned in "Mishqat-ul-Masabih". 6. Syed Mansoor Ali Shah, learned counsel for the petitioner in Writ Petition No,13457 of 1998 who has only challenged vires of the impugned notification to the extent of aquifer charges submits: (1) that Lahore Development Authority Act, 1975 was framed by the competent Authority with specific purpose and object as is evident from the Preamble of the Act read with sections 3(b), 3(g), 3(k), 6(2)(iii), 10(3), 13, 19, 25, 27(2), 28 and 29 which clearly reveal that Legislature had framed the law for,water supply. The aforesaid provisions of law must be read as an organic whole keeping in view the word "water supply". The respondents have no authority whatsoever under the law to impose the said charges on the petitioner as the said aquifer charges has no connection whatsoever with the water supply. He highlighted the meaning of word "Aquifer" as defined in Dictionary.Com which is to the following effect:-- "underground bed or layer yielding ground water for wells and springs etc." ' He also relied upon the meaning of word "Public water supply" as defined in Words and Phrases, Permanent Edition, Volumes 35-A and 44-A which are to the following effect:-- "Public water supply, as used in the title to act March 4, 1884, P.L.32, is not limited to water supply owned and controlled by a Municipal Corporation, but should be construed as meaning a supply of water, for public and domestic use, furnished or to be furnished from waterworks." (Volume 35-A) "The term 'water supply' and `water rights' generally do not have the same connotation, the latter term meaning generally the right to divert water by artificial means from a natural stream or spring." (Volume 44-A). ' He also relied upon the meaning of the word "land" as defined in American Jurisprudence, Second Edition, Volume 63A which is as follows:-- "The word 'land' included not only the soil, but everything attached to it, whether attached by the course of nature, as trees, herbage, and water, or by the hand of man, as buildings, fixtures and fences and includes many things besides the soil itself, as waters, grass, stones, buildings, fences, trees and the like and in fact all things which have become a part of the soil. ' The ancient maxim `cujus est solum, ejus usque ad coelum et ad infernos' means that land, in its legal signification, extends from the surface downward to the centre of the earth and upward indefinitely to the skies, so that whatever is in a direct line between the surface of any land and the centre of the earth belongs to the owner of the surface. From this it is said to follow that whether what is subterranean is solid rock, mines, or porous soil, or salt springs, or part land and part water, the person who owns the surface may dig therein and apply all that is there found to his own purposes." ' He also relied upon the definition of word "land" as defined in Words and Phrases, Permanent Edition, Volume 24 which is as under:-- "'land' includes not only the face of the earth but everything under it. ' Owner of land in fee has right to surface and to everything beneath and above it. "'land', in its full legal signification, comprehends not only the soil, but any building on it, and includes not only the face of the earth, but everything under it or over it.
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"'land' which is the soil of the earth, includes everything erected on its surface, or which is beneath it. ' Possessor of surface of soil will be deemed to be in possession of whatever lies underneath surface, since 'land' includes, not only ground or soil, but everything attached to it above or below. "'land' has an indefinite extent upward and downward from the surface of the earth and thereby includes whatever may be erected upon it and whatever may lie in a direct line between the surface and the centre of the earth. ' If a man grants all his lands he grants thereby all his mines of metal and other fossils, his words, his waters, and his houses, as well as his fields and meadows. "'land' according to Lord Coke, includes not only the ground or soil, but everything which is attached to the earth, whether by the course of nature, as trees, herbage, and water, or by the hand of man, as houses and other buildings; and, has an indefinite extent, upwards " as well as downwards, so as to include everything terrestrial, under or over it." ' He also relied upon the meaning of water and water rights as defined in Words and Phrases, Permanent Edition, Volume 34A which is as follows:-- "A water right is 'property' . The right to the use of water is `property' and it is part and parcel of the land." ' He relied upon a maxim from Trainer's Latin Maxims which is as follows:-- "A coelo use ad centrum---- From the heavens to the centre (of the earth). This phrase is used to denote the extent of the right of a proprietor of land, who, on his feudal investiture in the land, becomes entitled to everything pertinent or belonging to it, whether above or below ground, such as houses, trees, minerals." (II) That impugned notification is not in accordance with law laid down by the superior Courts. In support of his contention he relied upon the following judgments:- (1) Biafco Industries v. Federation of Pakistan 2000 CLC 170, (2) Messrs Nishat Mills v. Federation of Pakistan 1997 MLD 3194, (3) Shahtaj Sugar Mills v. Province of Punjab 1998 CLC 1912, (4) Nishat Tek Limited v. Federation of Pakistan PLD 1994 Lah. 347, (5) Saif Textile Mills v. Pakistan through Secretary PLD 1998 Pesh. 15, (6) Muhammad Ismail v. Chief Cotton Inspector PLD 1966 SC 388 and (7) Sohail Jute Mills v. Federation of Pakistan PLD 1991 SC 329. (III) That the impugned charge is a tax and the respondents have no authority whatsoever to impose tax through the impugned notification as it is violative of Article 77 read with Article 127 of the Constitution and the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:- (1) Pakistan Industrial Development Corporation v. Pakistan through Secretary 1992 SCMR 891, (2) Province of Punjab v. NICCC 2000 SCMR 567, (3) Assistant Collector Customs v. Gadoon Textile Mills 1994 SCMR 712, (4) Gadoon Textile Mills v. Assistant Collector and others PLD 1992 Pesh. 191, (5) Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506 and (6) Muhammad Nurullah v. Municipal Corporation, Karachi PLD 1960 SC 24. (IV) That section 29 of L.D.A. Act is also hit by Articles 23 and 24 of the Constitution. (V) That respondents, have no authority to levy the charge through the impugned notification even under section 29 of the Act as section 29 - is not a charging section. In case the petitioner instals his tubewell in violation of section 29 then the respondent has no authority to impose the charge through the impugned notification but could only proceed in accordance with law under the Act. (VI) That respondents have not issued any notification qua the area with regard to the premises of the petitioner, therefore, the respondents have no authority whatsoever to issue impugned notification and impose impugned charge. (VII) That the water underneath the land of the petitioner is a property of the petitioner in view of aforesaid definitions as well as Article 260 of the Constitution. Therefore, the petitioners have lawful
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authority to hold and dispose of his property so long as the petitioners continue as owners of the land and cannot be deprived of the benefits. Therefore, action of the respondents is not in accordance with law. In support of his contention he relied upon the following judgments:-- (VIII) (1) Muhammad Ismail v. The State PLD 1969 SC 241, (2) Dehli Transport CorporatiON v. D.T.C. Mazdoor Congress AIR 1991 SC 101 and (3) K. Anjaiah and others v K. Chandraiah and others (1998) 3 SCC 218. (IX) (VIII) He summed up his arguments that action of the respondents is also hit by Article 25 of the Constitution as per law laid down by the superior Courts. He relied upon the following judgments:-- (X) ' Government of Balochistan v. Azizullah Memon PLD 1993 SC 341, (2) C.B.R. v. Sheikh Spinning Mills 1999 SCMR 1442 and (3) Ellahi Cotton Mills v. Federation of Pakistan PLD 1997 SC 582. (XI) ' Mr. Mahmood A. Sheikh, Advocate for petitioner in Writ Petition No,4588 of 2000 submits that respondents imposed the charge to meet the expenses of the loaning agencies, therefore, impugned notification is not sustainable in the eyes of law. In support of his contention he relied upon 1992 AC 48 (It is pertinent to mention here that there is no judgment at this page). It is stated that the petitioner had closed the premises in 1993, therefore, impugned bills sent by the respondents to the petitioner on the basis of impugned notification are not sustainable in the eyes of law as the respondents had sent the bills in question to the petitioner without finding the ground realities at the spot. (XII) 7. ' Mr. Faisal Zaman, learned counsel for the petitioner in Writ Petition No,382 of 1989 and Writ Petition No,8424 of 2002 has highlighted the changes in section 28 and section 29 of the L.D.A. Act which originally were as follows:-- (XIII) "28. Rates and rees.- (1) With the previous consent of the Government adequate funds may be raised by the Authority from time to time, to meet the cost of its schemes by imposing rates, fees and other charges. (XIV) (2) The rates, fees and other-charges shall be such as to provide sufficient Revenues-- (XV) to cover the operating expenses including taxes, if any, an interest to provide adequate maintenance and depreciation; (XVI) to meet repayments on long term indebtedness to the extent that such repayments exceed the provision of depreciation; (XVII) to finance the normal year to year extension of any of such schemes and to provide a reasonable portion of the cost of future major expansion of such schemes. (XVIII) 29. Fees on tubewells,--- (1) The Authority shall have the exclusive right to use ground water resources within the area. (2) The Authority may levy rates on private persons or private bodies who have installed or may instal tubewells within its jurisdiction. 8. The aforesaid sections were amended by the competent Authority to the following effect by Lahore Development Authority Act, 1'976 (Act VI of 1976):- Amendment to section 28 of Act No,XXX of 1975, -- In the Principal Act, in section 28, in subsection (2), after the words 'other charges' and before the word 'shall' the words 'for water supply, sewerage and drainage schemes' shall be inserted. Amendment to section 29 of Act No,XXX of 1975,-- In the Principal. Act, in section 29, subsection (2) shall be substituted as follows:- (2) No person shall, without the permission of the Authority, instal a tubewell at such places within the area, as may be notified from time to time in the official Gazette by the Authority." 9. The impugned notifications qua the levy with regard to fee/charge by the respondents were issued by the respondents under the amended provisions of the L.D.A. Act, 1975. Unamended provisions of sections 28 and 29 empowered respondents to levy impugned charges but after the
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amendment, Legislature in its wisdom, had withdrawn the said power. Hence, the impugned notifications are not sustainable in the eyes of law. 10. On the basis of aforesaid provisions of law he submits that petitioner in Writ Petition No,382 of 1989 had only challenged the vires of the Aquifer charges. The respondents have no lawful authority to levy the said charge on the petitioner under section 28 of the Act as the respondents neither provide any water supply nor prepared any scheme for the benefit of the petitioners. He further submits that respondents admitted in written statement, in reply to paragraph No,3 on merits and in reply to Ground No,2 that impugned notification had been issued by the respondents under section 28 of the Act and not under section 29 (2), therefore, the same is not sustainable in the eyes of law. He further submits that petitioner had installed his tubewell in his factory in the year 1952 before the enforcement of the L.D.A. Act,…
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