MUHAMMAD HALEEM, J. This judgment will dispose of Petitions 29, 81, 84 and 256 of 1971 as common questions of law arise in all these petitions.
2. These petitions more or less relate to the same relief but are different on some factual details. It will, therefore, be convenient to give a short statement of facts of these petitions separately.
Petition No. 29/71.-There are three petitioners who have joined together. Petitioner No. 1 owns building, on Plot No. C/110/A, measuring 600 sq. Yards in North Nazimabad, Karachi. Petitioner No. 2 owns building on commercial Plot No. S/Q/1, sub-block B', measuring 21389 sq. Yards while peti-- tioner No. 3 owns building on Plot No. B/94/C, measuring 400 sq. Yards in the same locality. North Nazimabad was in March 1960 included within the K. M. C. Limits, upon which respondent No. 2 levied and collected water charges at the rate of 6-- % of the assessed value of the property from July 1960 till June 1967. There is no dispute about this recovery from the petitioners. Towards the close of the year 1968, respondent No. 1 issued water bills at the uniform rates of Rs. 16.50 per month to the owners of the buildings in North Nazimabad and realised from water charges for the period, July 1967 to June 1968 and July 1968 to June 1969. The petitioners claim that they paid the water charges under the impression that respondent No. 1, acting as agent of respondent No. 2, was bound to supply water to respondent No. 2, which is a constituent body ins terms of Article 114 of the K. D. A. Order, 1957. Again, towards the end of 1970 respondent No. 1 issued water bills for the period for which respondent No. 2 had realised water charges and also for the period for which respondent No. 1 itself had recovered the charges at the flat rate depending on the area of the plot and nature of construc--tion, that is, whether it was single or double storey. As to commercial plots according to petitioner No. 2, the determination of water charges was not according to any criterion but arbitrary. Petitioner No. 1 received a bill for the payment of Rs. 4,471.08 at the rate of Rs.
54.80 per month for the period, 18th November 1957 to 30th November 1970. Petitioner No. 2 received two bills, one dated 26th June 1968 for the payment of Rs. 52,079.38 for the period, 1st September 1961 to 30th June 1968 and the other dated 29th October 1970 for the payment of Rs.
1,64,867 for the period, 13th June 1961 to 13th October 1970. Petitioner No. 3 received a bill for the payment of Rs. 2,992.80 for the period ending 30th September 1970. The petitioners thereupon represented to respondent No. 1 against the above illegal demands but they were told that the recovery was being made in accord--ance with the office Order No. 8/16/RWC/1560 dated 17th June 1970 of the Chief Engineer who was competent to levy and order for the recovery of the above charges. They were also referred to an office Note No. 8/16/38/5927 dated 12th August 1961 accompanying a proposal of the Chief Engineer but they were further informed that this office note was being acted upon. Not being satisfied with the legality of the demand, the petitioners sent a notice to respondent No. 1 to withdraw the water bills and to desist from disconnecting water supply but they received no reply. Accordingly the petitioners filed the petition, by which they impugn the above office order dated 17th June 1960 and the office note dated 12th August 1961 and claim a relief for a declaration that they be declared as without lawful authority, to compel respondent No. 2 to supply water to the residents of North Nazimabad pursuant to section 52 of the Municipal Administration Ordinance and to restrain respondent No. 1 from recovering water charges. As an alternative to the above relief, a direction is asked to compel respondent No. 1 to refrain from realising water charges in excess of 6--% of the assessed value of the property owned by the petitioners.
3. The case of respondent No. 1 is that North Nazimabad fell in Scheme No. 2 which was framed and executed under the provisions of the Karachi Improvement Trust Act, 1950 to pro--vide housing and other facilities. This scheme was duly approved by the Central Government in the year 1953 vide letter dated 15th June 1953. Subsequently, it was revised and duly approved by the Provincial Government vide order dated 7th August 1964. According to the project estimate and revenue receipt statement, it was a self-financing scheme, which envisaged the supply and distribution of water not only for the purpose of construction but also for domestic use. The scheme was executed in stages and It was intended to be completed by December 1967. The Karachi Improvement Trust at first executed some stages of the scheme but later on when it ass succeeded by respondent No. 1 upon the promulgation of the K. D. A. Order, 1957, the development work was taken in hand by respondent No. 1. It is the case of respondent No. 1 that it had laid the water pipes as provided in the scheme and gave door to door connections to the owners of the buildings who were then the allottees. Peti--tioner No. 1 obtained water connection from respondent No. 1 in November 1957, petitioner No. 2 in February 1960 and petitioner No. 3 in April 1962 and that the consumers were advised to instal water meters and those who had done so were charged at the approved rate of Rs. 1.50 per 1000 gallons accord--ing to the meter reading. Those who failed to instal water meters were charged at the fiat rate as stated earlier. The above rates were duly approved by the competent authority and they were paid without any protest. While admitting that North Nazimabad is included within the K. M. C. Limits it Is denied that the inclusion had the effect of taking over of the distribution of water supply by respondent No. 2 and for that matter of empowering it to levy and recover water charges, It was further asserted that even till today water is being supplied by respondent No. 1 and no arrangement for the supply and distribution of water has been made by respondent No. 2 and, therefore, it has no jurisdiction to levy and recovery water charges from the petitioners. It is also asserted that respondent No. 2 has not framed any bye-laws to enable it to recover water charges from the consumers in this area. In fact, respondent No. 2 failed to accept the responsibility of supplying water to the consumers vide letter dated 11th November 1965 and it was under some mis--conception that respondent No. 2 commenced billing the consumers for water charges, but again in 1967 respondent No. 2 agreed not to recover water charges whereafter this responsibility was undertaken by respondent No. 1. It is emphasised that the water supply and distribution was envisaged in the scheme itself and the recovery of water charges is "a step towards the execution and implementation of the scheme". Respondent No. 1 denied acting as an agent of respondent No. 2 and stated that it had recovered the water charges as it was empowered to do so. Iti s also pleaded that what is termed as a recovery of water charges "with retrospective effect" is not so but It is in facet arrears of water charges for that period.
Lastly, it is urged that the peti--tioners had entered into separate agreements for getting water connections and that in law it creates contractual liability and, therefore, in 'effect what is being disputed Is the right under the contract to pay for water charges, which is not justiciable in these proceedings.
4. Respondent No. 2 states that the water charges for the year 1962-63 were recovered with the consent of respondent No. 1. However, respondent No. 2 did not recover water charges since 1967 as respondent No. 1 revised its earlier decision. It accepted the fact that respondent No. 1 is supplying the water to the consumers.
5. Petition No. 81/71.--In this petition, petitioner No. 3 was dropped from the proceedings. Petitioner No. l owns a build--ing on Plot No. B-47, measuring 400 sq. Yards in Hussain D'Silva Town, P. Block, North Nazimabad, while petitioner No. 2 owns a building on Plot No. A-34 measuring 200 sq. Yards in the same locality. Both the petitioners had purchased the buildings from Hussain D'Silva Construction Company and it was this company which had applied for the water connection. From July 1962 to June 1967 the petitioners had paid water charges to respondent No. 2 at the rate of 6-- % of the assessed gross rental value of the property, but in April 1968 they received bills from respon--dent No. 1 for payment of water charges at the flat rate of Rs. 16.50 per month. Again towards the close of the year 1969 they received bills for water charges for the period, 1962 to 1967 according to the area of the plot. Finally petitioner No. 1 received bill for payment of water charges at the rate of Rs. 17.40 per month for the period, 8th June 1962 to September 1970. The petitioner No. 2 also received a bill for the payment of water charges at the rate of Rs. 10.40 per month for the period, 1962 to September 1970. The petitioner made representations to respondent No. 1 against the billing for water charges but they were informed that the recovery was being made in pursuance of some office order. They also sent a notice for the withdrawal of the bills but it was without any effect. Respondent No. 1, however, issued notice for the disconnection of the water supply, whereupon the petitioners impugned the recovery of water charges by this petition and claimed that the bills for water charges be declared as without lawful authority and respondent No.1 be directed to refrain from levying and recovering water charges. In the alternative, it is prayed that respondent No. 1 should not be allowed to recover water charges in excess of 6-- % of the assessed gross annual rental value of the property and that further it be restrained from recovering water charges for the period, 1962 to 1967.
6. Respondent No. 1 has taken the same stand as in Petition No. 29/ 71. Additionally, it has pleaded that the recovery of water charges is not a part of the civic duty as contemplated by Article 124 of the K. D. A. Order, 1957. It also claims that the payments made to respondent No. 2 for the period, 1961 to 1967 or to it during the year 1968-69 were duly adjusted and that the rates at which the consumers including the petitioners were billed have been accepted by them. Respondent No. 2 has not filed any counter affidavit in support of its case.
7. Petition No. 84/71.-The petitioner was late Z. H. Lari, an Advocate of this Court who, after the conclusion of the hearing of the petition, died at Peshawar. The petition impugns the recovery of water charges in respect of a bungalow owned by late Z. H. Lari on plot No. 89/F/B In North Nazimabad, the construction of which was completed in March 1963. Respondent No. 2 recovered water charges from July 1963 till June 1967. Respondent No. 1 billed late Z. H. Lari for water charges for the period, July 1967 to June 1969 at the flat rate of Rs. 16.50 per month. The water charges were paid by him. Finally against another water bill for the period, July 1969 to September 1969, water charges amounting to Rs. 49.50 at the flat rate of Rs. 16.50 were also paid. In June 1970 his widow, who was the original allottee, received a bill for the payment of Rs. 11,690 for the period, 30th September 1958 to 30th April 1970, at the rate of Rs. 87 per month. She made representations to respondent No. 1 that the bungalow did not belong to her and further that the house was completed only in 1963 and that her husband had paid water charges up to September 1969 to respondent No. 2. Subsequently, respondent No. l issued an amended bill for Rs. 6,994.26 for the period, 1st April 1963 to 31st October 1970, which was to be paid in four equal instalments. The rate charg--ed was Rs. 87 per month and the payments made to respondents 1 and 2 were deducted from the bill. Upon non-payment of the bill, respondent No. 1 threatened to disconnect the water supply and in spite of the representation made in this behalf respondent No. 1 did not withdraw the bill which led to the filing of the petition, in which it is prayed that respondent No. 1 be directed to refrain front realising water charges and that respondent No. 2 be directed to arrange the supply of water to the petitioner pursuant to section 52 of the Municipal Administration Ordinance and in the alternative it is also prayed that respondent No. 1 be restrained from realising water charges for the period ending September 1969 arid also not to recover water charges in excess of 6--% of the assessed value of the property "for the period beginning October 1969".
8. The stand of respondent No. 2 is the same as in Petition No. 29/71. Only this much needs mention that the water connec--tion was taken by his widow in September 1960 as an allottee of the property. Respondent No. 2 has not filed any counter---affidavit in this petition as well.
9. Petition No. 256/71.---The subject-matter of this petition relates to buildings of the petitioners in Scheme No. 16 (Federal B. Area). Petitioner No. 1 is the owner of a building on plot No. 408 in Block No. 8 measuring 120 sq. Yards. Petitioner No. 2 is the owner of building on Plot No. 427 in Block No. 8, measuring 120 sq. Yards while petitioner No. 3 is the owner of building on Plot No. 599 in Block No. 9 measuring 120 sq. Yards. These houses were constructed in the years 1966 and 1967. It is the case of the petitioners that the pressure is the water line com--menced decreasing from 1966 and by 1968 it was so low that there was so hardly any supply in the water taps. As a result thereof water was purchased either from water carriers or the water connection was lowered to the ground level to obtain supply of water, in spite of the undertaking given in the brochure that there would be water supply with sufficient pressure so as to eliminate individual pumping. Grievance is, therefore, made of the fact that additional costs were incurred in addition to the water charges for which the petitioners were billed. Petitioner No. 1 obtained water connection sometime in December 1963 while he was billed for water charges from 5th June 1963. Petitioner No. 2 took water connection on 1st September 1965 and installed the water meter but the charges were not according to the actual meter reading but based on fictitious reading. Petitioner No. 3 also took water connection on 11th March 1965 and installed a water meter yet the water charges were claimed at a flat rate. The petitioners have disputed the billing for water charges at a flat rate of Rs. 8.70 per month for a plot measuring 120 sq. Yards as, according to the respondent's budget for 1964-65, the rate envisaged was 0.87 paisa per 1000 gallons. The water charges could only be recovered according to the volume of water supply at the above rate and the petitioners have challenged the recovery of water charges mainly on the ground that Scheme No. 16 was included within the K. M. C. Limits from August 1965 and, there--fore, it was the K. M. C. Which could recover the water charges at the rate of 61 % of the assessed gross annual rental value of the property and the respondent was not empowered to levy and recover water charges as there is no provision in the K. D. A. Order, 1957 to authorise it to do so. Since water supply was threatened to be disconnected the petitioners filed this petition and claimed the relief that the levy of water charges by the respondent be declared as without lawful authority and of no effect.
10. Respondent No. 1 has not filed any counter-affidavit, but the learned counsel for the respondent orally took the same defence at the hearing of this petition. Late Z. H. Lari on behalf of the petitioners in Petition No. 29/71 led the arguments on all the legal aspects involved in these petitions and the counsel for the petitioners in other petitions adopted them. The learned Advocate-General appeared for respondent No. 1 in Petition No. 29/71 while Mr. Shamsul Haq Meson appeared for this respondent in other petitions. Mr. Anwar Ahmad appeared for the Karachi Municipal Corporation which was impleaded as respondent No. 2 in all petitions except Petition No. 256/71.
11. Before adverting to the contentions it will be of advantage to mention the legal foundation upon which these contentions are based. While the Karachi Municipal Act, 1933 was in force, North Nazimabad was included within the Karachi Municipal limits pursuant to a Notification No. 6/14/ 59-LSG dated 9th March 196:x, issued under section 271 (3) of the Act. The Karachi Municipal Act was repealed by the Municipal Administration Ordinance, 1960, and by notification dated 15th April 1950, all the provisions of this Ordinance, except sections 1 and 3 came into force in the federal territory as from 16th April 1960. Again three notifications were issued under the Ordinance, the first date 11th October 1960, under section 7, by which the area described as boundaries of the city of Karachi in Schedule X of the Karachi Municipal Act including North Nazimabad was declared to be a municipality and designated as Karachi Municipal Corpora--tion, the second dated 11th November 1960, under section 8(1), by which the Karachi Municipal Committee was constituted and the third dated 18th July 1951, under section 8(3), by which the Karachi Municipal Committee was designated as Karachi Municipal Corporation. Federal B. Area, which falls in Scheme No. 16, was also included in the K. M. C. Limits in August 1965. There is no dispute about these areas as being within the limits of the Karachi Municipal Corporation.
12. Karachi Joint Water Board Ordinance, 1949, was promulgated on list September 1949. Section 20 relates to the supply of water to a constituent body while section 21 to an individual consumer at a point outside the area subject to the jurisdiction of the Corporation under the Municipal Act. They read as under "20. Supply of water.-Board shall supply to each constituent authority at the place or places specified in the schedule and subject to the terms and conditions (including the levy of an enhanced rate) as may be agreed between the Board and the authority, such quantity of water as may be demanded by the authority, or if the combined demand of the constituent authorities together is more than the Board can supply, then such quantity as the Board may determine in respect of each authority.
21. Supply to individual consumers.-The board may supply water to any consumer-
(a) if the water is taken at a point outside the area subject to the jurisdiction of the Corporation under the city of Karachi Municipal Act, 1933, and
(b) if water is available after supply water to the con--stituent authorities, under the agreements referred to in section 20."
Upon the promulgation of the K. D. A. Order, 1957, this Ordinance was repealed Article 120 of the Order and the same responsibility was taken over by the K. D. A. By virtue of Articles 113 and 114 of the Order which are enacted in the same language, read as under "113. Supply of water to constituent bodies.-The Authority shall continue to supply to each constituent body, subject to such terms and conditions (including the levy of an enhanced rate) as may be agreed upon between the Authority and the constituent body. Such quantity of water as may be demanded by the constituent body or, if the combined demands of the constituent bodies together are more than the Authority can supply, then such quantity as the Authority may determine in respect of each constituent body.
114. Supply of water to Individual consumers.-The Authority may supply water to any consumer-
(a) if the water is taken at a point outside the area subject to the jurisdiction of the Corporation under the Municipal Act, and
(b) if water is available after supplying water to the con--stituent bodies, under the agreements referred to in Arti--cle 113."
Before the K. D. A. Order, 1957 was promulgated, the Karachi Improvement Trust Act, 1950 held the field. Scheme No. 2 was initiated under this Act. Upon the repeal of this Act by the K. D. A. Order, the K. D. A. Continued to perform the same functions. Article 11 of the K. D. Order empowered the K. D. A.
To submit an outline programme for the development and improvement of the areas within the federal capital and also to submit for approval specific scheme. Since the argument also turned on the construction of this section, it is necessary to reproduce it in extenso:- "11. Power to sanction, reject or revise scheme.-(1) The Authority shall as soon as possible, prepare, and from time to time submit for the approval of the Central Government an outline programme for the development and improvement of such areas within the Federal Capital, as it may consider necessary for the purpose, listing such areas and the approximate order or their development, and outlining the proposed improvement, including the water supply, sewerage and buildings required for residential, commercial and other purposes incidental thereto.
(2) The Central Government shall, within such time as may be prescribed by rules, either approve or disapprove any programme referred to in clause (1), or approve with such additions or modifications as, in consultation with the Authority, it deems fit to make.
(3) The Authority shall, within such time as may be prescribed by rules, prepare for submission to the Central Government specified schemes set forth in the outline programme, including any other scheme or schemes which the Central Government in writing directs the Authority to prepare, and all such schemes shall contain plans for the proposed development, including approximations of posts proposed, methods of financing, ejectment, and resettlement or rehousing of affected persons Provided that the Authority may without reference to the Central Government execute any scheme the provisional estimated cost of which does not exceed rupees three hundred thousand and specific provision for which exists in the annual estimates of income and expenditure of the Authority.
(4) The Central Government may sanction, with or without modification, or may refuse to sanction, or may return for reconsideration, any scheme submitted to it under clause (3), or may call for such further details or information about the scheme, or may direct such further examination of the scheme as it may consider necessary.
(5) Where the Central Government has sanctioned a scheme for any area it shall be lawful for the Authority to execute and maintain all works and carry out all operations in the said area required for the execution of any such scheme.
(6) As soon as may be after the commencement of this Order, the Central Government may upon such terms and conditions as may be laid down, transfer to the Authority any scheme sanctioned or undertaken by the Central Government or by any local authority or other body and also place at the disposal of the Authority any properties, movable or immovable, connected with or ancillary or appurtenant to any such scheme, and any scheme so trans--ferred shall be deemed to be a scheme sanctioned by the Central Government under this Order.
(7) It shall be lawful for the Authority to execute and maintain all works and carry out all unfinished works and operations required for the execution of any scheme transferred under clause (6).
(8) The Central Government may, upon such terns and conditions as may be laid down place at the disposal of the Authority and properties or funds held by the Central Government or by any local authority or other body, or permit the Authority to levy and retain duties which immediately before the commencement of this Order, was leviable by such Government, authority or body and there--upon the Authority shall hold such properties or funds and levy such duties in accordance with such terms and conditions."
Articles, 4, 15 and 124 of the Order were also pressed into service. They need be reproduced and read as under :- "Management.-(1) The general direction and administration of the Authority and its affairs shall vest in the Governing Body which may exercise all powers and do all acts and things which may be exercised or done by the Authority.
(2) The Governing Body in discharging its functions shall act on sound principles of development, town-planning and housing with special regard to the re-housing of affected persons and shall be guided on questions of policy by such directions as the Central Government may from time to time give.
(3) 1f a question arises as to whether any matter is a matter of policy or not, the decision of the Central Government shall be final.
15. Power of the Authority to make regulations.-(1) The Authority may make regulations not inconsistent with this Order or with the rules made under Article 14, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Order.
(2) In particulars and without prejudice to the generality of the foregoing power such regulations may provide for-
(a) any other matter for which provision is required for the efficient discharge of the business of the Authority."
Reliance was placed on sections 32 to 38 of the Municipal Administration Ordinance, 1960 for levy and recovery of taxes and also on section 52, by which the Municipal Com--mittee is made responsible to provide wholesome water sufficient for public and private purposes.
13. Late Z. H. Lari on behalf of the petitioners in Petition No. 29/71 in the first instance argued that it is the Karachi Municipal Corporation which is the only authority to statutorily impose and recover taxes upon the Inclusion of North Nazimabad within the K. M. C. Limits. I now propose to examine this contention in the light of the relevant provisions on the subject and from what has been contended by the opposing counsel for the parties.
14. Upon the inclusion of North Nazimabad within the K. M. C. Limits by notification dated 9th March 1960, which did not except the operation of any provision of the Karachi Municipal Act, this Act became applicable to this area by virtue of section 273, which reads :- "273. When any local area is included in the City under section 171, this Act and (except as the Provincial Govern--ment may by notification otherwise direct) all rules, orders, directions, and powers made, issued, or conferred there--under and in force throughout the City at the time the local area is so included, shall apply in such area."
Accordingly, section 97(1)(c) of the Karachi Municipal Act authorised the levy of water tax which reads :- "97.-(1) For the purposes of subsection (1) of section 96, the following taxes hereinafter called `property-taxes' shall subject to the limitations hereinafter provided, be levied on buildings and lands fn the City, namely :
(c) a water tax at such percentage of their annual value, or at such rates (depending upon the size of the water connection with the Municipal mains and the purpose for which water is supplied) as, in the opinion of the Corporation, shall suffice to meet the expenses of providing a water supply and drainage for the City."
The rules and by-laws as originally framed and subsequently amended by Notification No. G-5- A/9-42/47 dated 28.6-4 T, which related to the supply of water and the fixation of water rate also became applicable. Consequent upon the repeal of the Karachi Municipal Act, 1933, hereinafter referred to as the Act, by the Municipal Administration Ordinance, 1960 (hereinafter referred to as the Ordinance) all provisions of the Ordinance, except sections 1 and 3, came Into force in the federal territory (Karachi) as from 16th April 1960. The boundaries of the city of Karachi described in Schedule X were declared to be a Municipality by notification dated 11th October 1960 and the Municipal Committee was constituted on 11th November 1960 and designated as Karachi Municipal Corporation on 18th July 1961. Section 4 of the Ordinance, while repealing the Act saved the rules and by-laws and also the tax imposed or assessed. It also provided that the rules and by-laws should be deemed to have been made under this Ordinance if they were not inconsistent with its provisions.
15. In view of the imperative condition as to the incon--sistency, it will be relevant to consider whether the provisions of the Ordinance provided for the levy of water tax. Section 33 of the Ordinance authorises the levy, in the prescribed manner, all or any of the taxes, rates, tolls and fees mentioned in the Third Schedule. Referring to the Third Schedule, there is item No. 16 which relates to the rate "for the provision of water works or the supply of water." There is, therefore, provision in section 33 for the levy of tax for the supply of water. The rules (Schedule VI, Chap. II) framed under the Act became the rules by virtue of the deeming provision as one framed under section 121 of the Ordinance pursuant to item No. 23 of the Fourth Schedule. Similarly, the by-laws framed under the Act are to be deemed one framed under section 122 of the Ordinance pursuant to item No. 19 of the Fifth Schedule. Thus, after the issuance of the first notification dated 9th March 1960 including North Nazimabad within the K. M. C. Limits, the statutory right to levy and recover water tax under the Act was saved under the Ordinance. In this context, Article 124 of the K. D. A. Order, 1957, hereinafter referred to as the Order needs considera--tion. It is an overlapping provision and authorises the K.
D. A. And the Chairman to exercise powers and functions under the Act in any area where the improvement scheme is in force, provided the Provincial Government so declares by a notification.
The powers also include the power to levy taxes and the discharge of such functions of the Karachi Municipal Corporation as are prescribed under the Act. It is an admitted position that no such notification was issued and accordingly neither the K. D. A. Nor its Chairman could exercise the powers to levy and recover water tax. Accordingly there is no curb in the statutory power to levy and recover water tax under the Ordinance in the absence of any direction by the Provincial Government under section 36 of the Ordinance and this was the position when the Act became applicable to this area upon its inclusion within the K. M. C. Limits.
16. As observed earlier, the Karachi Joint Water Board Ordinance, 1949, was repealed by Article 120 of the Order. Articles 113 and 114 of the Order are enacted to authorise the K. D. A. To perform the same functions as the Karachi Joint Water Board under that Ordinance. Article 113 relates to the supply of water to a constituent body which, in the instant case, is the Karachi Municipal Corporation. Article 114 relates to the supply of water to individual consumers provided the water is taken at a point outside the area subject to the jurisdiction of the Karachi Municipal Corporation, and is left over after supplying to the constituent bodies. There is no other section which provides for the supply of water to consumers for domestic use in North Nazimabad (Scheme No. 2). What appears from these two Articles is that the responsibility of the K. D. A. Is only to the extent of a bulk supply to the constituent bodies which thereupon have the responsibility to give water for domestic use. Article 114 only makes an exception to it and that is also with a purpose, for in an area where a constituent body has no means to supply water for domestic use, the consumers should not be left without water. Only Article 124 could have been pressed into service, but as observed earlier it has rat application.
17. In the alternative, it was next contended by late Z. H. Lari that in the absence of any regulation framed under Article 15 of the K. D. A. Order, the K, D. A. Could not levy and recover water charges.
Article 15 can have no application, for it authorises for the making of regulation to provide for all matters, for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Order. In effect, Article 15 of the Order incorporates the principle of the maxim "Quando lex aliquied alicui concedit concediture et id sine quo res ipsa esse non potest". And empowers the Authority to provide for minor details left out in the Order for carrying into effect something which is expressed in the Order and is required to be done as a matter of duty, which is not the case here as there is no provision in the Order to authorise the levy of water charges for the supply of water for domestic use. Accordingly no regulation could be framed to empower the levy and recovery of water charges at any particular rate as that was a legislative function.
18. The learned Advocate-General who appeared for the K. D. A. Pressed into service clause 2(ii) of the Scheme sanctioned by the Government under Article 11 of the Order, which reads as under : "2. The entire land included in the Scheme shall vest in and be managed by the Authority. Subject to the provision of said Order the Authority shall for the purpose of the Scheme, be entitled to perform the functions, namely-
(ii) the arrangement of drainage, water supply and lighting of the areas;" and argued that this provision in the Scheme empowers the K. D. A. To supply water for domestic use and to levy charges for it as the Scheme is a self-financing scheme. In this connection, he invited my attention to the project digest (Annexures A and B) relating to Scheme No. 2 to show that it was a self-financing scheme and that "the cost is proposed to be met from the over-all allocation for land development scheme provided in plan period". It is, however, significant to note that in para. 13 under the caption "cost of water", there is only reference to the cost of water charges for "construction purposes" but nothing is mentioned about supply for domestic use. In part-C of this document against the item "water supply and distribution" the estimated amount is given. This is so also in the revised project estimate of Scheme No. II. Again in the statement showing the recovery from sewerage and water supply in Scheme No. 11, the amount charged against the plots for house connection is mentioned and also the estimated quantity of water likely to be consumed, but there is no mention of domestic supply other than for "construction purposes".
How can it therefore be argued that by the use of the words "water supply" In the Scheme the power to levy and recover water charges flows by necessary intendment. Even a reference to Article 11 of the Order would not lead to the conclusion as is put across by the learne3 Advocate- General. Clause (1) of Article 11 merely authorises the preparation of the Scheme which is to contain a provision for water supply as it is a necessary element of a development scheme but it nowhere expresses for the supply of water for domestic use and the recovery of water charges. Moreover, clause 2 of the order sanctioning the Scheme itself provides that the sanction is subject to the provisions of the Order. Accordingly, the scope cannot be extended to anything which is not provided in the Order itself. There is, therefore, nothing to exclude the application of the taxing provisions of the Ordinance either expressly or by necessary implication. Lastly, the Scheme even though it was self-financing yet its scope was limited to re-imbursement only by way of charges against water connection for "construction `purposes". Mr. Shamsul Haq Memon, the learned counsel for the K. D. A. In the other petition; while conceding that there is no provision in the Order either for the supply of water for domestic use or for the recovery of water charges, argued that this power must be Inferred from the language of Article 11, and in order to fill the vacuum the necessary words should be read into it. In this connection, he referred to a passage from Craies on Statute Law, Sixth Edition, at page 111, which reads :- "If a statute is passed for the purpose of enabling some: thing to be done. But omits to mention In terms some detail which is of great Importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statute by implication empowers that detail to be carried out."
The principle in this passage is not at all helpful to what is contended above. As observed earlier this principle could only be invoked for the purpose of enabling something to be done, which is not expressed in Article 11 of the Order and, therefore, if according to the learned counsel, there is vacuum then it is for the Legislature to provide for it and not for the Court to read words which are not in It as this would amount to legislation which is not the function of the Court. This contention is, therefore, misconceived.
19. The learned Advocate-General relied on section 22 of the Karachi Improvement Trust Act, 1950, which related to the execution of contracts by the Board and on the strength of Article 149 of the Order emphasised that the petitioners had entered into agreements for receiving water for domestic use and therefore it was a binding contract which empowered the K. D. A. To recover water charges for domestic use. Reference to this provision is irrelevant as the Karachi Improve-- ment Trust Act does not contain any provision vis-a-vis the supply of water to consumers.
Moreover, no agreements were produced in Court and the argument rested on the plane that the petitioners had received water supply for domestic use and had paid for it, which the petitioners claimed to have paid under some misconception. Be that as it may, on the assumption of concluded' contracts it was urged that the petitioners have a contractual obligation to pay for the water charges. Sections 65 and 70 of the Contract Act were also pressed into service. This contention is also without substance, for the K. D. A. Being a statutory body was functioning within the ambit of the K. D. A. Order and it could not discharge a function which was not provided in the Order when that function was covered by another Ordinance which held the field. Water charges are in the nature of a rate or tax which are burdens or charges imposed by the Legislature on persons to raise money for public purpose and the recovery thereof is in the nature of an imposition of a tax, which cannot be done otherwise than by an express provision in the Order itself.
Accordingly, the K. D. A. Upon the plea of contractual obligation resting either on concluded contract or by resort to sections 65 and 70 of the Contract Act cannot relegate to itself the function to recover compensation in the shape of water charges, which is nothing else but trespass on the field of the Ordinance which lawfully authorises the Karachi Municipal Corporation to recover water charges. Additionally, such a contractual obligation arising from the agreement so pleaded will be in violation of section 23 of the Contract Act as its purpose is to defeat the taxing provisions in the Ordinance, which now hold the field and the parties could not, therefore, agree to waive the statute.
20. Mr. Shamsul Haq Memon contended that Article 114 of the Order is not exhaustive and even if the supply of water to consumers for domestic use within the K. M. C. Limits is not mentioned, it does not prevent the K. D. A. From undertaking this service. The short reply to this contention is that what is left expressed was in all probability not intended at all. It rests on the maxim "expressio unis est exclusio alterius". If the Legislature had intended to enlarge the function of the K. D. A. Vis-a-vis supply of water to consumers for domestic use within the limits of the constituent body, it could have provided for it. Not having done so, this function cannot be inferred upon what has been urged above.
21. Mr. Shamsul Haq Memon next urged that section 52 of the Ordinance does not exclude the supply of water by any other agency. This contention is again misconceived, for once an area is included in the K. M. C. Limits no other agency can trespass in that field unless its operation is excluded either expressly or by necessary implication. Again Mr. Memon contended that without a notification under section 34 of the Ordinance the Karachi Municipal Corporation is not empowered to levy tax. He relied on Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corporation (PLD1967SC241) where the terminal tax was not an item in the Schedule in respect of which tax could be levied under section 33 of the Ordinance and it was held that the Ordinance did not contemplate the imposition of terminal tax and therefore if it was to be imposed then the K. M. C. Will have to frame rules in that behalf under section 41 and to notify the same under section 34 of the Ordinance. This is not the position here as the imposition of water tax is saved and therefore this contention is also untenable. Mr. Memon next argued that some of the functions which are performed by the Municipal Corporation under the Ordinance are also performed by the K. D. A. And therefore the power to supply water for domestic use and to recover charges thereof should be inferred otherwise it will not be possible for the K. D. A. To discharge its functions as sanctioned in the Scheme pursuant to Article 11 of the Order. He referred to Articles 67 to 77 of the Order which correspond to those provided in Chapters VI and VII of the Ordinance. He also referred to Articles 12, 13 and 91 of the Order which correspond to those provided in Chapter V of the Ordinance and finally he referred to Article 11, which corresponds to section 107 of the Order. I do not see how this result flows from this contention. As the preamble shows the K. D. A. Order is enacted for improve--ment of certain areas with a view to provide housing schemes etc. And is restricted in its application to the Federal Capital which is now the City of Karachi while the Municipal Administration Ordinance is confined to Municipal Administration in Pakistan. It may be that there are some overlapping provisions but the Order being a special Act it is confined to the execution of those functions in the City of Karachi while the provisions of the Municipal Administration Ordinance extend to areas other than the City of Karachi in regard to those matters. It is also significant to note that though there are overlapping provisions yet by section 149 of the Order, sections 186 to 192, 198 to 201, 203 and 204 to 211 in Chapter XII of the Act were repealed with a view to give effect to the overlapping provisions of the Order. This Order was enacted at a time when the Karachi Municipal Act held the field and upon the promulgation of the Municipal Administration Ordinance the overlapping provisions in the Order being those of a special enactment prevail and continue to reply to the City of Karachi. Additionally, I may also mention that the Provincial Government has power to vest the land in respect of which a scheme is sanctioned in the Authority under Article 11. Similarly Article 55 of the Order vests any area within the K. M. C. Limits which 9s included in the Scheme, in the Authority which is the K. D. A. There is, therefore, a clear distinction in the application of the two Acts in their respective fields and in spite of the fact that there are overlapping provisions in the Order, the power to levy and recover water charges as is provided in the Ordinance cannot be read by implication in the Order by this process of reasoning.
22. Federal B. Area (Scheme No. 16) as observed earlier was included in the K. M. C. Limits in August 1965. The learned Advocate-General relied on Resolution No. 27 which relates to the fixation , of water charges for providing water connection to the allottees to impress that the water connection by necessary implication meant the supply of water for domestic use and the recovery of charges for it. I have already repelled this contention for the reasons given earlier and nothing need be said further.
23. Lastly, the learned Advocate-General contended that the petitions are not maintainable as what is impugned is a contractual obligation. This contention is again misconceived, for the petitioners have not based their claim on any contractual obligation but have disputed the legal authority of the K. D. A. To recover water charges under the K. D. A. Order which is a justiciable issue under Article 98 of the Constitu--tion.
24. Late Z. H. Lari had argued that the rates could not be prescribed otherwise than by a regulation under Article 15 which required publication under $Article 16 of the Order. Mr. Shamsul Haq Memon met this contention by placing reliance on Article 4 of the Order to impress that the governing body in the discharge of its functions could delegate the authority to the Chief Engineer to fix rates for water charges. Article 4 is limited in its scope and authorises the governing body to exercise all powers which may be exercised by the authority; that is K. D. A. There is nothing in the K. D. A. Order which empowers the Authority to levy charges for water supply and accordingly the governing body was not competent to delegate power which was not vested in the authority. Even otherwise, this contention is of no consequence, for it could only assume importance if there was any power to levy charges for water supply.
25. While concluding Mr. Shamsul Haq Memon argued that the Karachi Municipal Corporation was not discharging its obligation to supply water for domestic use and it was, therefore, that the K. D. A.
Per force has to do it and in the fitness of things if it supplies water then it must also have a right to recover the charges for it. Whatever may be the dispute between the K. D. A. And the Karachi Municipal Corporation, the latter body is under a statutory obligation by virtue of section 52 of the Ordinance to supply water for domestic use and this statutory responsibility has to be discharged.
The K. D. A. Cannot upon this plea assume to itself the responsibility either for the supply of water for domestic use or to charge for it. In the circumstances, the supply of water to consumers can only be on behalf of the constituent body, that is K. M. C. The learned counsel for the K. M. C. Took the same stand as the petitioners and contended that it is the K. M. C. -which is empowered to recover water tax but gave no valid reason why it was not supplying water to the consumers for domestic use.
26. The above discussion leads me to conclude that it is only the Karachi Municipal Corporation which is empowered under the Ordinance to supply water for domestic use and to recover tax from the petitioners after the inclusion of the areas within the K. M. C. Limits. The contention of late Z.
H. Lari, therefore, prevails. Further, section 52 of the Ordinance imposes a statutory duty on the Karachi Municipal Corporation to supply wholesome water to the consumers within the K. M. C.
Limits which function it has not discharged. In conclusion the petitions are disposed of as under :
27. Petition No. 29/71.-The impugned office note is declared as without lawful authority and of no effect and that it does not confer authority on the K. D. A. To recover water charges. Further respondent No. 2 is directed to supply water to the petitioners pursuant to section 52 of the Ordinance.
28. Petition No. 81/71.-The impugned demand notes are declared as without lawful authority and that no realisation of water charges can be made pursuant to these notes.
29. Petition No. 84/71.-The impugned bill is declared as without lawful authority and of no legal effect and that further respondent No. 1 has no authority to realise water charges from the petitioners. Respondent No. 2 is directed to arrange for the supply of water to the petitioners pursuant to section 52 of the Ordinance.
30. Petition No. 256/71.-The levy of water charges is declared as without lawful authority and of no effect. The above petitions are thus allowed with costs.
IMDADALLY H. AGHA, J.-I agree.