' AZIZULLAH M. MEMON, J.---Appellant filed this High Court Appeal against the judgment and decree, dated 7-2-2006, passed by learned Single Judge of this Court, in Suit No,658 of 2001, which was filed by he appellant.
2. Heard learned counsel for the parties.
3. Plaintiff/Appellant had started construction of its office building, adjacent to Marriot Hotel, Abdullah Haroon Road, Karachi, in the year 1996, which got completed in the year 2001. It had applied to the respondent for sanction of water supply connection and also paid amount of Rs,1,226,712 towards such charges/levies, and the respondent had also issued "No Objection Certificate" for such water connection, dated 12-12-1996, but despite having sanctioned such a water connection and having received payment for the same, the respondent failed to supply water to the appellant, 'as a consequence of which appellant purchased the water through the tankers by expending considerably a large amount of money, apart from investing his time and efforts towards the same; instead the respondent sent bill dated 24-4-2001 for Rs,6,146,917 towards water charges and fire and conservancy taxes for the period up to 2001; appellant agitated the same through letter dated 7-5-2001, contending therein that as no water had been supplied to them, they are not liable for payment of the said amount, demanded from them; however appellants showed their willingness to pay for fire and conservancy charges. But the respondent quoted the new and increased amount of Rs,9,062,451 as dues payable by the appellant without giving the breakup as to how the said amount was payable by the appellant.
4. Hence, appellant filed the suit on the original side of this Court with following prayers:--
(i) to hold and declare that the defendant has no legal authority or power to claim water charges/taxes in the sum of Rs,61,46,917 as not a drop of water has been supplied to the plaintiff since 1996 to until now.
(ii) to grant permanent injunction restraining the defendant to resort any coercive measures for the recovery of illegal amount of Rs,61,46,917 towards water charges.
(iii) to pass a judgment and decree for the refund of Rs,12,26,712 illegally collected towards water charges/taxes since 1996 as no water has been provided from the year 1996 until now in spite of such payment.
(iv) to grant such relief/reliefs that may deem fit and proper in the circumstances of the cases."
5. On the pleading of the parties, following issue 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?"
6. Vide judgment dated 7-2-2006 learned Single Judge recorded the following observations:-- "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 complained 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 in 2004 CLC 578 and the case reported as Seven-Up Bottling Co. 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,6,146,917 with interest at the rate of 6% per annum. As regard other charges, the plaintiff shall continue to pay sewage conservancy and fire charges, as usual. 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.
'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 encasement 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 resorted. Supply once restored, the plaintiff shall become liable, the payment towards water charges. Failure to carry out inspection would disentitle the defendant from billing the plaintiff 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."
' Hence this High Court Appeal.
7. Learned counsel for the appellant argued that after sanction of one-inch diameter pipe for supply of water, no pipe line was laid by the defendant/respondent to ensure that water reached the premises of the appellant, and that despite grant of water connection there has been no water supply to the premises of the appellant: learned counsel referred to the deposition of the respondent who is a plumber and who confirmed in his affidavit-in-evidence that he could not find any line for water upon digging the ground, in search of the water connection; further that the appellant cannot be held liable for payment of the sum demanded, merely because it failed to file a complaint of non-supply of water during the relevant period, and that the crucial question, which needed to be determined would be whether water was being supplied to the appellant's premises during the relevant billing period, and that no one should be made to pay for something, which evidence fails to establish he has received.
8. Learned counsel for the appellant further argued that witnesses Nos.2 and 3 of the respondent, who both happened to be plumbers by profession, confirmed in their cross examination that there was no water supply to the office premises of the appellant, and that upon digging in search of water connection no waterline could be found; further that appellants filed vouchers, which were issued to them by owners of water tankers for supply of water to their office since the year 2000- 2001, which fact supports non-receiving of the water supply from the respondents; appellants were getting water by means of payment from their own pocket to the private owners of the water tankers, while on the other hand, the respondent was unable to produce any evidence to support their claim that they had been supplying water to the appellant since the year 1996; further that failure of the respondent to bill the appellant from the year 1996 to 2001 is a support for the appellant's/claim that respondent had not been supplying water to them during the said period.
9. Learned counsel for the respondent in reply cited Karachi Municipal Corporation v. Messrs Karimi & Co. (PLD 1967 Karachi 537), wherein relevant observations, recorded by a learned D.B. Of this Court, appear at page 546, which read as under:-- "The object of the Act is to make law relating to the municipal government of the city of Karachi. For that purpose the city of Karachi is an indivisible whole. If a certain tax is levied and collected from a certain area but is not expended on it, we are unable to hold that such a tax is not levied for the purposes of the Act which is the municipal government of the city of Karachi. It is, of course, right and just that no responsible body is expected to levy tax without performing its duties. It is also right to expect that the distribution of benefits must be equitable in all the areas as far as possible.
But if this is not done, can it be subjected to an injunction of the Court. It seems to us that that question is a political one and the remedy where such as situation arises would be by representation and agitation and by such other means as may be found necessary. The people of a particular area may feel aggrieved that they are not receiving their due share or for that matter any share of the benefits of municipal government and on that ground that should not be made to pay any particular tax. But when such a situation arises and it has arisen in the past the remedy has not been by action in a law Court. Other methods had been adopted with varying measures of success. As far the Courts are concerned, the question which they have to answer is whether under the particular law the Taxing authority has the power to levy the tax? If the answer to this question is found in the affirmative it is difficult to see how the Court can give a declaration against the imposition of the tax. As far as the City of Karachi Municipal Act is concerned we have pointed out that the levy of tax would still be for the purposes of Act within the meaning of section 96 even though the purposes may not be fulfilled in a particular area. The only way in which the Corporation could lose its power to levy the tax in a particular area within the city of Karachi would be either by excluding that area from the city or when the power to levy a particular tax is taken away from it by some legislative measure."
10. Learned counsel for the respondent further cited S.Z. Mehdi v. Government of Sindh and 3 others (1990 CLC 352 (Karachi) 352) wherein following observations were recorded by a learned D.B. Of this Court:-- "There is no dispute that the water is being supplied in that locality or in that area. Therefore, applying the principles laid down in the aforesaid judgments failure or inability of Karachi Water and Sewerage Board and K.M.C. Not to supply water to the petitioners does not mean that the water rate cannot be charged from them particularly as water is being supplied in the locality or in that area."
11. So also learned counsel cited Messrs Karimi & Company v. The Karachi Municipal Corporation (1974 SCMR 440) wherein the Honourable Supreme Court of Pakistan was pleased to record the following observations at page 444:-- "The view I have taken is fully supported by our decision in Civil Appeal No,K-25 of 1947. (Messrs Hussain D'Silva Enterprises v. The Karachi Municipal Corporation) decided on the 20th of May, 1969.
In this case the validity of conservancy tax levied under section 99(1) of the city of Karachi Municipal Act, 1933, was challenged on the ground that no arrangements for the removal of sewerage, offensive matter and rubbish from the premises of the appellant was undertaken by the municipal agency. It was held that inasmuch as such arrangements had been made for the area concerned the levy of conservancy tax on the appellant's premises was legal. ---As a general rule, the validity of the imposition of a municipal tax can be challenged either on the ground that the requisite power has not been conferred on the municipality concerned by the statute or the charter which governs its functions and powers; or that the imposition is not for the purposes of the Municipality. The challenge cannot, however, be based on the ground that the municipality has failed to carry out its duties and obligations in a certain locality or for the benefit of certain individuals, as municipal taxation is intended for carrying on the administration of the municipality as a whole."
12. Thus, the settled principle of law is to the effect that as a general rule the validity of the imposition of a municipal tax can be challenged either on the ground that the requisite power has not been conferred on the Municipality concerned by the statute or the charter, which governs its functions and powers; or that the imposition is not for the purposes of the Municipality. The challenge cannot be based on the ground that the Municipality has failed to carry out its duties and obligations in a certain locality or for the benefit of certain individuals, as municipal taxation is intended for carrying on the administration of the Municipality as a whole. Further that the failure, neglect, or inability of the Municipality to perform its functions does not relieve the citizen to pay municipal taxes, whose imposition has been authorized by law, as the liability to pay arises on account of the presence of the citizen or the property taxes, in the area of the Municipality concerned, and not as a quid pro quo for concerned services rendered.
13. Under the circumstances, learned Single Judge rightly passed the judgment, impugned herein, relevant observations whereof are quoted hereinabove. The High Court appeal is not found carrying any merits therein and the same is hereby dismissed in limine along with listed application. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.