' SHUJAAT ALI KHAN, J.---Through this single order I intend to dispose of instant petition (W.P.
No,10234- of 2009) as well as petitions titled Muhammad Javed Iqbal v. Faisalabad Development Authority and others (W.P. No,10924 of 2009), Muhammad Sher Afghan v. Faisalabad Development Authority and others (W.P. No,10925 of 2009), Muhammad Saeed Anjum v. Faisalabad Development Authority and others (W.P. No,10926 of 2009), Fiaz Ahmad Khan v. Faisalabad Development Authority and others (W. P. No,10927 of 2009) and Abdul Ghaffar v. Faisalabad Development Authority and others (W.P. No,10928 of 2009) having commonality of law and facts viz. In all these petitions the petitioners have assailed levy of Aquifer Charges by FDA-WASA.
2. Shorn of unnecessary details, the facts as spelt out in these petitions are that the petitioners are running ice factories and are getting water through turbines. The FDA-WASA authorities have levied Aquifer Charges in their monthly bills; hence these petitions.
3. Learned counsel for the petitioners, while lamenting that since he has not perused report and parawise comments he is not in a position to properly argue this case, submits that the matter regarding levy of Aquifer Charges in monthly water bills has already been decided by this Court in the case reported as Seven-Up Bottling Co. (Pvt.) Ltd. v. Lahore Development Authority Lahore through M.D. WASA and its Deputy Director Revenue (South), WASA LDA and another (2003 CLC 513) which was further affirmed by the august Supreme Court of Pakistan in the case reported as Lahore Development Authority and others v. Seven-Up Bottling Co. (Pvt.) Ltd. And others (2003 SCM R 1742); that without determining as to whether premises of the petitioners fall within the controlled area of FDA-WASA, the said levy cannot be imposed against them; that prior to imposition of such levy no notices were issued to the petitioners, thus, they were condemned unheard; that the petitioners are running their business from their own sources and respondents cannot be allowed to levy unnecessary taxes without prior legislation and that the impugned demand by the respondents is unreasonable.
4. Conversely, learned counsel for the respondents submits that the question involved in this petition has already been decided by this Court in case reported as Crescent Sugar Mills Ltd.
Through Factory Manager v. Faisalabad Development Authority through Director General and another (2004 YLR 1275), thus, these petitions merit dismissal; that the cases relied upon by learned counsel for the .Petitioners are not applicable to the facts and circumstances of instant case inasmuch as they relate to LDA Act, 1975, whereas Aquifer Charges have been levied against the petitioners while invoking provisions of the Punjab Development of Cities Act, 1976; that section 28(3) of the said Act empowers authorities to levy such Charges; that the impugned levy has been charged after its publication in the official gazette; that the petitioners are not entitled to discretionary relief as they have omitted to mention about civil suits filed by them and subsequent dismissal of their appeals against refusal of injunctive order; that similarly placed persons are paying Aquifer Charges without any objection, thus, same cannot be declared illegal just on account of challenge by few persons; that since the neighbourers of the petitioner are paying Aquifer Charges, the question as to whether the said locality falls within controlled area of FDA- WASA or not is immaterial; that the petitioners could have assailed order regarding dismissal of their appeals filed against refusal of injunctive order but instead of doing so they have filed the instant petition.
5. Learned counsel for the petitioners, while exercising his right of rebuttal, submits that there is nothing on record to show that prior to levy of Aquifer Charges the public-at-large in general and the persons concerned in particular were taken on board; that the petitioners have no concern with others who are paying impugned charges without any objection rather they have vested right to make move for safeguarding of their fundamental rights and that the judgment referred to by learned counsel for the respondents having been passed by a learned Single Judge of this Court cannot be preferred over the judgment of a learned Division Bench of this Court as well as that of Hon'ble apex Court of the country.
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition and those forming part of report and para wise comments submitted by the respondents.
7. Firstly taking up plea of learned counsel for the petitioners that he could not peruse the report and para wise comments, I am of the view that report and para wise comments in these petitions were filed way back in the 2009 whereafter these petitions were fixed on number of occasions but learned counsel for the petitioners did not bother to go through the report and para wise comments. Since these petitions are pretty old, these cannot be kept pending awaiting perusal of report and parawise comments by learned counsel for the petitioners. Even otherwise it is responsibility of learned counsel for the petitioners to go through the response filed by the respondents to enable him to argue the case.
8. Now adverting to merits of the case, I have observed that crux of, the arguments advanced by learned counsel for the petitioners is that the levy of Aquifer Charges does not have any legal backing. To resolve the controversy, a perusal of section 28 of the Punjab Development of Cities Act, 1976, is of paramount consideration which for facility of reference is reproduced herein below:- - "28. Fees on tubewells.
(1) The Authority shall have the exclusive right to use ground water resources within the area.
(2) No person shall, without the permission of the Authority install a tubewell, for commercial purposes, at such places within the area, as may be notified in the official Gazette by the Authority.
(3) The Authority may levy rates on the persons or bodies who have installed or may install tubewells, for commercial purposes, within its jurisdiction. "
A perusal of afore-quoted provision of law clearly shows that FDA-WASA authorities have been empowered to levy Aquifer Charges against the persons who are using Turbines and Tube-well to get water for industrial and other purposes. Further, by virtue of Notifications dated 26-6-2002 and 12-12-2006 the levy of said charge was validated whereas admittedly the impugned bills were issued to the petitioners in the year 2009. Thus this stance of learned counsel for the petitioner has no worth at all.
9. Now coming to plea of the petitioners that since the levy of Aquifer Charge by LDA has already been declared unlawful by this Court which was further upheld by apex Court of the country, is concerned, suffice it to observe that LDA Act, 1975 and Punjab Development of Cities Act, 1976, being independent legislations cannot be intermingled with each other. Further, a perusal of judgment of this Court as well as that of the apex Court of the country renders it crystal clear that the said levy was declared unlawful for the reason that there existed no provision for levy of Aquifer Charges whereas according to afore-quoted section 28(3) of Punjab Development of Cities Act, 1976, FDA- WASA authorities have been empowered to levy Aquifer Charges, thus, the said judgments stands distinguished from this case.
10. Learned counsel for the petitioners has put much emphasis on the fact that before determination as to whether the petitioners' premises fall within the controlled area or not, the respondents cannot demand Aquifer Charges. In this regard, I am of the opinion that according to the documents, annexed by the respondents with their report and para wise comments, the petitioners have not only been paying Aquifer Charges after the year 2002 but also filed applications for correction of said charges. In this backdrop, the assertion of the petitioners is not worth consideration.
11. There is no cavil with the proposition that the government functionaries could not be allowed to claim anything without prior legislation but when it is established on record that any levy or surcharge was supported by a valid piece of legislation the authorities cannot be restrained to demand the same merely on the ground that the aggrieved persons were not taken on board prior to such legislation. Publication of any legislation B in the official gazette is considered to be sufficient for the notice of public at large.
12. Even otherwise, while filing these petitions the petitioners have not uttered even a word about filing of declaratory suits by them before the Civil Court and dismissal of the applications for temporary relief as well as the subsequent appeals against those orders. In this backdrop, I have no hesitation in my mind to hold that one who seeks equity must come to the Court with clean hands. Reliance in this C regard is placed on the case reported as Sayed Abbas Taqi Mehdi v. Mst.
Sayeda Sabahat Batool and others (2010 SCM R 1840).
13. For what has been discussed above, I see no force in these petitions which are accordingly dismissed with no order as to costs.