Sh. Azmat Saeed, J.--This, Civil Appeal is directed against the Order dated 08.02.2012 of the learned Lahore High Court Rawalpindi Bench, whereby a Constitutional Petition i.e, Writ Petition No,447 of 2010, filed by the present Respondent No, 1, challenging Resolution No,35 dated 16.08.2005, passed by the Cantonment Board, Rawalpindi Cantt: with regards to revision of water rates, was allowed.
2. Brief facts necessary for adjudication of this list at hand are that the present Respondent No, 1 is a resident of Rawalpindi Cantonment and is being supplied water by Appellant No, 1 (Cantonment Board), which vide Resolution No,35 dated 16.08.2005 revised the rate for the supply of water to its residents. Aggrieved, the present Respondent No, 1 invoked the constitutional jurisdiction of the learned Lahore High Court, Rawalpindi Bench, vide Writ Petition No, 447 of 2010, which has been allowed vide impugned Order dated 08.02.2012. The present Appellants challenged the said Order by filing Civil Petition for Leave to Appeal No,356 of 2012, wherein leave was granted by this Court vide Order dated 09.01.2013. Hence, this Civil Appeal.
3. We have heard the learned counsels for both the parties and have perused the available record.
4. It was the case of Respondent No, 1, which has found favour with the learned High Court that for all intents and purposes by way of the impugned Resolution No,35 of 2005. Water Tax has been imposed by Appellant No, 1 (Cantonment Board) and such Water Tax could only be imposed or levied with the prior permission of the Federal Government, as provided by Section 60 of the Cantonments Act, 1924 (hereinafter referred to as "the Act of 1924") and that too after due fulfillment of the requisite formalities provided in Sections 60 to 63 of the Act of 1924.
5. It is contended on behalf of Appellants that by way of the Resolution No,35 dated 16.08.2005, no Water Tax has been levied. In fact, the existing water rate has been revised in exercise of the powers conferred upon the Board by Section 220 of the Act of 1924. Such revision did not tantamount to a levy of a Tax in terms of Section 60 of the Act of 1924, therefore, neither any prior permission of the Federal Government was required nor legal requirements set forth in Sections 60 to 63 of the Act of 1924 required to be complied with. It is further contended that the Constitutional Petition was barred by laches and even otherwise not maintainable in the presence a an alternate remedy by way of an Appeal.
6. The above-said contentions have been controverted by the learned counsel for Respondent No, 1, who has defended the impugned. Order dated 08.02.2012 and in this behalf, he has placed reliance upon an unreported Order of this Court dated 08.09.2006, passed in Civil Petition No,770 of 2006, titled "Station Commander Chaklala Cantt., Rawalpindi, etc. Vs. Col. (R) Muhammad Abbas Malik".
7. The learned counsel for the Appellants has based his contentions upon Section 220 of the Act of 1924, which is reproduced hereunder for ease of reference: "220. Supply of Water.--(1) The Board may permit the owner, lessee or occupier of any building or land to connect the building or land with a source of public water-supply by means to communication pipes of such size and description as it may prescribe for the purpose of obtaining water for domestic use.
(2) The occupier of every building so connected with the water-supply shall be entitled to have for domestic use, in return the water tax, If any, such quantity of water as the Board may determine.
(3) All water supplied in excess of the quantity to which such supply is limited under sub-section
(2) and, in a cantonment in which a water tax is not imposed, all water supplied under this section, shall be paid for at such rate as the Board may fix.
(4) ------------- ' Sub-section (1) of Section 220 of the Act of 1924 caters for supply of water by the Board to domestic consumers, as, is being done in the instant case. Sub-section (2) provides that the quantity of water so supplied may be determined by the Board and in lieu thereof a Water Tax may be levied. It is also apparent that there is a possibility that such Water Tax may not be levied. Sub- section (3) of Section 220 of the Act of 1924 caters for two situations; firstly, the water is supplied beyond the amount determined in terms of Sub-section (2) and; secondly with regards to a Cantonment where no Water Tax has been levied at all. In both such eventualities, the water will be supplied at such rates as the Board may fix. It is clear and obvious that the quantity of water in respect whereof Water Tax has not been imposed, the Board in terms of sub-section (3) of Section 220 of the Act of 1924 may receive payments for supply of water at a fixed rate and such rate is distinct from the Water Tax referred to in sub-section (2) of Section 220 of the Act of 1924. The two i.e, Water Tax and rate for supply of water are neither legally synonymous nor interchangeable.
8. At this juncture, it may be pertinent to refer Resolution No,35 dated 16.8.2005 under challenge, the relevant portion therefrom is reproduced hereunder: "Copy of Cantt. Board Resolution No,35 dated 16.08.2005.
To consider Sta. HQs letter No, 500/CCB/2/Q-5 dated 30.07.2005 regarding revision of water rates w.e.f, 1st July, 1005 (Cantt.) as detailed below:"
The Resolution reproduced herein above does not purport to levy any Water Tax, as envisages by sub-section (2) of Section 220 of the Act of 1924 but merely revises the rates of supply of water in terms of Sub-Section (3) of Section 220 of the Act of 1924. On query, both the parties informed the Court that no Water Tax, at all, has been levied or is being collected by the Rawalpindi Cantonment Board from its domestic consumers. Thus, the above-said Resolution dated 16.08.2005 does not impose any tax in terms of Section 60 of the Act of 1924,therefore, neither any prior permission from the Federal Government was required nor was it necessary to comply with the provisions of Sections 60 to 63 of the Act of 1924.
9. The reliance by the learned counsel for Respondent No, 1 upon an unreported Order dated 08.09.2006, passed by this Court in Civil Petition No,770 of 2006 is misconceived. It is only a leave refusing order, which ordinarily does not constitute a definitive declaration of law. Furthermore, the observations made therein are prima facie in nature made in the context of the grant of a temporary injunction, as is apparent therefrom. The relevant portion of the above-said Order dated 08.09.2006, is reproduced here under: "... We are of the opinion that at the interim stage when the revision petition arising out of an application Order XX.XIX Rules 1 & 2, CPC was being disposed of, the High Court had rightly formed an opinion. However, as the matter is still pending therefore, order is not open to any exception."
10. In view of the above, we have no hesitation in holding that the Resolution No,35 dated 16.08.2005 does not suffer from any B illegality as alleged by Respondent No, 1, therefore, the impugned Order dated 08.02.2012 is not sustainable in law.
11. Consequently, this Civil Appeal is accepted and the impugned Order dated 08.02.2012 of the learned Lahore High Court, Rawalpindi Bench, passed in Writ Petition No, 447 of 2010, is set aside with no order as to costs.