1. FAISAL ARAB, J.--- In 1996, ABN Amro Bank, the plaintiff in the present suit started construction of its building which is adjacent to Hotel Marriot. For its water requirements, the plaintiff in October, 1996 applied to KWSB i,e, the defendant for water connection, which is the Authority entrusted with the functions of supplying water to its consumers in Karachi. The plaintiff as per defendant's demand made payment of Rs,12,26,712 in December, 1996 and the defendant sanctioned one inch diameter pipeline. It is plaintiff's case that it never got any water supply since 1996 and during the entire period of construction of its new building, the plaintiff had to purchase water through tankers to the extent of Rs,3,600,000. It is also the case of the plaintiff that even after completion of its building in June, 2001 it continued to purchase water through tankers.
2. On 24-4-2001 the defendant sent a bill for a Rs,61,46,917 which was inclusive of water charges as well as fire and conservancy taxes falling due since 1996. The plaintiff responded to the defendant's bill vide its letter dated 7-5-2001 seeking deletion of water charges from the bill for the reason that no water was supplied to the plaintiff since the very inception. It is also the case of the plaintiff that instead of revising the bill, the defendant on 15-5-2001 sent another bill for Rs,90,62,451 and threatened to initiate recovery proceedings in case payment is not made. In this background, the plaintiff filed the present suit seeking not only a declaration that the demand of the defendant is unjustified but also seeking refund of Rs,12,26,712 which it had paid in 1996 to the defendant at the time of obtaining water connection.
3. The defendant in its written statement claimed that through one inch diameter pipeline normal water supply is being made to the plaintiff and no complaint was ever made by the plaintiff. The defendant therefore, pleaded that the plaintiff has been rightly billed.
4. From the pleas taken by the parties, following issues were framed:--
(1) Whether the suit is maintainable?
(2) Whether the plaintiff has any cause of action to maintain the suit?
(3) Whether the water was being provided in the line by the defendants during the periods for which the bill is claimed. If not, what is its effect?
(4) Whether the plaintiff ever complained to the defendants about the non-availability of the water?
(5) Whether the claim of the defendants is legally valid?
(6) Whether the services provided for sewerage facility are distinct from the provision of water, and whether the plaintiff is liable to be charged only for the services in respect of sewerage, conservancy and fire charges admittedly being provided by the defendants?
5. Issue No,1 An objection has been raised by the defendant that suit is not maintainable as the person who has verified the plaint is not duly authorized by the plaintiff. The plaint has been verified by one Mr. Hanif Jan Muhammad claiming to be duly constituted attorney of the plaintiff. A copy of power of attorney has been placed on record. In the power of attorney it is stated that by virtue a resolution dated 11-10-1991 passed by the Managing Board of the plaintiff's parent company in Netherlands, its International Directorate passed a resolution in its meeting held on 15-8-1996 nominating Mr. Hanif Jan Muhammad as attorney for all branches of plaintiff-Bank in Pakistan. Clause 22 of the said power of attorney inter alia empowers the attorney to commence, prosecute or abandon any suits or other proceedings in any Court whether civil, criminal or revenue. From the contents of the power of attorney, it is evident that International Directorate of the plaintiff-Bank derives its power on the basis of resolution dated 11-10-1991 passed in by the Managing Board of ABN Amro Bank in Netherlands. The said Directorate on the strength of the resolution passed by the Managing Board nominated Mr. Hanif Jan Muhammad as attorney for all branches of plaintiff-Bank in Pakistan vide its resolution dated 15-8-1996. The authority of Managing Board of ABN Amro Bank in Netherlands or of its International Directorate to nominate any person as attorney for Pakistan has not been called in question. The only objection that has been raised is that Mr. Hanif Jan Muhammad is not authorized to file the present suit. From the contents of the power of attorney it is quite apparent that suit has been filed by a person duly authorized in this behalf. The present suit is therefore, maintainable in law. Issue No,1 is answered in the affirmative.
6. The remaining issues are interconnected and are taken up together.
7. The question, which is mainly to be examined in this case, is, whether defendant failed to supply water to the plaintiff thereby disentitled it from claiming water charges from the plaintiff. Before going into the factual aspects of the case, it would be beneficial to examine the provisions of Karachi Water and Sewerage Board Act, 1996, which defines the powers and functions of the defendant Board.
8. Section 7(ii), Karachi Water and Sewerage Board Act, 1996 empowers the Board to levy and recover charges or fee for water supply and sewerage service. The use of words "charges and fee" clearly means that such are levied not as an incident of tax but for the supply and services which the defendant is required to provide to its subscribers. These charges are levied on quid pro quo basis i,e, to be charges for supply and services. Therefore, if there is no supply or service provided, the applicable charges or fee cannot be billed to the subscribers.
9. Section 7(x) of the Act, describes one of the most important functions of the Board i,e, the function of regulating, controlling and inspecting water connections, sewer and service lines and internal fittings. The object of entrusting the defendant with such functions is to ensure that supply and services of the defendant are adequately regulated, supervised and distributed. Proper regulation and distribution enables the defendant to (a) detect theft of water supply, (b) supply water to different areas as per the schedules of supply, (c) effective disposal of sewerage and (d) address genuine complaints with regard to defective or deficient supply and services.
10. Mr. M.A. Usmani, Officer of the plaintiff appeared as plaintiff's witness. In his affidavit in evidence he has stated that after sanction of one inch diameter pipe for supply of water, no pipeline was laid by the defendant. However, in his cross-examination he contradicted his own statement by saying "It is correct to suggest that after the approval, the water connection was given to the plaintiff by the defendant". From this admission it becomes apparent that water connection was provided to the plaintiff in the year 1996 and the plaintiff's plea that no connection was provided is not correct. As to non-supply of water, though the plaintiff has claimed that there was no supply since 1996 but it is quite strange C that no complaint was lodged until 7-5-2001. A consumer, who has been provided water connection, but there is no supply, had to approach the defendant with a complaint, so that defendant could take requisite remedial measures. It is only when a complaint is made that defendant is required to take appropriate remedial steps or to demonstrate to the consumer that there was no cause of complaint at all, and the supply and services are adequate.
11. Therefore, whenever a complaint is lodged, the defendant had to act and take necessary steps to address it. The defendant cannot close its eyes to the complaint on the one hand and continue billing the consumer on the other irrespective of the fact whether there is no supply or service being provided. A public institution entrusted with the function of providing basic amenity such as water has to act with necessary dispatch whenever a consumer lodges a complaint. The defendant has to inspect the water connections, if there is a complaint that there is no water supply and restore the supply. These inspections become all the more necessary as there is no metered supply and the consumers are charged in lump sum for the entire year of supply.
12. In the present case the defendant has demonstrated that after receiving complaint dated 7-5- 2001 it did nothing. On the contrary it reacted by sending another bill for more than nine million rupees i,e, 50% more than the amount billed earlier. Thus, defendant not only failed to perform but it deliberately avoided performing its duty to redress plaintiff's grievance. This laid back attitude is also evident from the statement of defendant's witness Muhammad Aslam, Director Taxes K.W.S. Board who in his cross-examination stated as follows:-- "We do not write any letter to the consumer that the water connection has been made and the water will be supplied to you. We do not write any letter to the consumers as to whether they are receiving the water or not, therefore, we did not write any letter to the plaintiff. Voluntarily states that the plaintiff also did not inform the defendant that they are not receiving the water."
13. Such a conduct is not acceptable. Whenever a new connection is provided, it is in the interest of defendant itself to inform the consumer of the date of commencement of supply. This enables the defendant to start billing the consumer from such date. Secondly, whenever there is a complaint, the defendant must act on it. It is about time that Government departments and agencies get rid of the lethargy and inaction and serve for which they charge from the public. With high rate of unemployment and millions jobless youth qualified enough to efficiently serve, there is no room for inefficient Government employees, whose only object is to occupy secured jobs and seldom do what is required of them. In the present case, the witness of the defendant has himself admitted on oath before this Court of the inaction and lethargy with which defendant is infested. From the date of plaintiff's complaint dated 7-5-2001 and uptill now i,e, for five years, the defendant took no step to demonstrate to the plaintiff that water is being supplied through the line. The defendant should have fixed a date. of joint inspection for such purpose.
14. On the other hand also the plaintiff's case is not free from doubt. If the plaintiff was not getting water supply since 1996 what prevented it from making timely complaint to the defendant. For the first time the plaintiff made complaint of non-supply of water on 7-5-2001. From this inaction, it can never be known whether there was no supply since the very inception i,e, 1996 when the water connection was provided or whether supply for the first time was disrupted in the year 2001. In absence of any complaint at the relevant time plaintiff can seek relief only for the billing period commencing from July, 2001. As after the complaint the defendant did not even bother to call the plaintiff for joint inspection of the water connection in order to demonstrate to the plaintiff that water is being supplied or if there is no supply the same has been duly addressed. The plaintiff is therefore, not entitled to pay water charges from the year commencing from July, 2001. Reliance is placed on the case reported as Nizar Ali v. Karachi Water and Sewerage Board 2004 CLC 578 and the case reported as Seven-up Bottling Co. v. L.D.A. reported in 2003 CLC 513. The ratio of the reported judgments is that authority disentitles itself from recovering water charges without making the supply available to the consumer, as such charges are not a tax but charges for the supply of water. The plaintiff shall however, be liable to clear the bill for water charges from 1996 to 2001. For such period, the defendant shall be entitled to encash the bank guarantee furnished by the plaintiff amounting to Rs,61,46,917 with interest at the rate of 6% per annum. As regard other charges, the plaintiff shall continue to pay sewerage conservancy and fire charges as usual.
15. Substantial financial loss has been caused to the exchequer on account of inaction on the part of the functionaries of the defendant. The concerned officers shall be made personally accountable for such loss.
16. I, therefore, hold that defendant has failed to supply water to the plaintiff from the year 2001 and onwards and therefore, is not entitled to bill the plaintiff for the period commencing from July, 2001 onwards. The defendant shall however, be entitled to recover water charges for the period 1996 to 2001 through encashment of the bank guarantee furnished by the plaintiff with interest at the rate of 6% per annum. I also direct the defendant that after giving notice to the plaintiff well in advance, it shall arrange for joint inspection of the water connection and ensure that water supply is restored. Supply once restored, the plaintiff shall become liable to make payment towards water charges. Failure to carry out inspection would disentitle the defendant from billing the defendant for water charges and any loss so occasioned should be the personal liability of the concerned officials of the defendant. This suit is decreed in the above terms.