The petitioners own immovable property assessed to house-tax and water-tax, in the limits of Lahore Cantonment Board (hereinafter called the Board), the respondents. The buildings of the petitioners are connected with water supply source being maintained by the respondent. They have been paying water charges as fixed from time to time. It is alleged that the respondent had been supplying metered quantity of water and charging accordingly. Later, that practice was abandoned and the respondent started charging flat rates on the basis of the annual rental value of the respective buildings.
2. The previous rates were fixed in pursuance to a Notification dated 9th September, 1931, which was as follows : Serial Nature of buildings The rate of the No. Tax per annum.
1.Any building or part of building not Three per connected with water mains but centum. situated within a radius of six hundred feet from the nearest stand pipe or other pipe from which water is available for the public.
2.Any buildings or part of building Two per not connected with the water mainscentum. but situated within a radius of not less than six hundred and not more than twelve hundred feet from the nearest stand pipe or other pipe from which water is available for the public.
3. Any building or a part of a building Seven per having water supply connection laid centum on to it.
It appears that the rates were later revised as is clear from the proceedings of an ordinary meeting of the Board held on 5th June, 1967. It is to the following effect : "33. Ref : C B R No. 36 dated. 31-3-66 and No. 4 dated 15-12-66.
To finally decide revision of Water Tax and Water Rate in Lahore Cantt. As the previous resolutions are considered defective by the D. D. M. I. & Cantt. Lahore Region, Lahore, Cantt. As per remarks in the inspection Report. The present position in :----- (a)The Cantt. Board ride their resolution No. 36 dated 31-3-66 has finally decided to enhance the existing minimum amount of water tax, water rate from' Rs. 18 and Rs. 12 to Rs. 30 and Rs. 24.After completion of $11 the formalities and bearing the objections called for under section 61 of the C. A.
1924, the proposal for publication and approval of the enhancement had been submitted to the Govt. Of Pakistan. The publication is still awaited.
Resolution.-After careful consideration of all aspects of the case and to simplify the structure of Water Rate/Tax, the Cantt. Board resolved as under :----
(i) That the water tax of 7 % on the value of the buildings imposed vide Late Govt. Of Punjab, Home Department Gazette Notification No. 27590 dated 9-9-1931 as amended from time to time, be abolished and the notification amended accordingly. And instead the following rates for connected with the Cantonment Board Water Supply are fixed under section 220 read with section 232 of the Cantonments Act, 1924 on the basis of annual value of the buildings w. e. f. 1st July, 1966 :- Annual Value Water Rate.
Re. 1.00 to Rs. 300.00Rs. 3.50 per month.
Rs. 301.00 to Rs. 600.00Rs. 5.00 Rs. 601.00 to Rs. 1200.00Rs. 7.00 Rs. 1,201.00 to Rs. 2,40.100Rs. 10.00 Rs. 2,401,00 and above,Rs. 15.00 (ii)------------------------------------------------------
(v) Further resolved that the following Cantt. Board resolution will be deemed to have been suspended. The proposals submitted to Govt. Of Pakistan Ministry of Defence be dropped, and withdrawn;-----
1. C B R No. 1(5) dated 30-1-65
2. C B R No. 45 dated 26-4-65
3. C B R No. 1(4) dated 13-12-1965
4. C B R No. 36 dated 31-3-1966
5. C B R No. 46 dated 15-12-1966. "
3. These rates were further revised vide Resolution No. 14 of the respondent dated 17th January, 1974, as follows : Resolution.-The following water charges are levied w. e. f. 1-1-74.
(a) Properties having Annual Rental Value:Rates of water charges Rs.Rs.
1 to 3006 p. m.
301 to 6008 601 to 120010 1201 to 240012 --- --- 2401 to 600016 --- --- 6001 to 10,000 and above.20 --- ---
(b) Commercial Rates;
(i) Hammams, Halwais, Soda Water Factories, Bakeries Rs. 24 p. m.
(ii) Lodging houses, stables diaries Dry Cleaners.Rs. 50 p. m.
(iii) Motor Service Stations Rs. 100 --- ---
(iv) (a) Cinemas (Air Conditioned) Rs. 100 --- ---
(b) Cinemas (Without Air Condition) Rs. 50 p. m.
(c) For religious and charitable Institutions. Free Water charges on account of water supply connection required for construction purposes will be recovered at the rate 1 % of the estimated cost of construction.
4. It appears that the petitioners and other residents made representations against this increase.
The matter was taken again by the Board in its meeting held on 21st March, 1974, when vide Resolution No. 24 it confirmed the revision and increase as noted above. Further representations were again considered on 10th- October, 1974, when by its Resolution No. 8, the respondent reduced the rate of water charges from Rs. 5 to Rs. 4 in respect of properties, the annual rental value of which ranges from Re. 1 to Rs. 300 p. a.
5. The learned counsel first of all challenged the constitution of the respondent Board in view of section 13-A of the Cantonment Act, 1924. It was stated that there must be 7 elected members to complete the constitution of the Board and as none has been there since 1971, after the dissolution of the Union Councils, the Board lost its valid existence. The notification No. O S D-V D XXI 71, dated 23rd June, 1971, was relied upon for the dissolution of the Union Councils.
6. It was further contended by the learned counsel for the petitioners that the Cantonment Board has no power under the Cantonment Act, 1924, or bye-laws made thereunder, a power and jurisdiction to revise and increase the existing rates of water charges although the assessment of the buildings can be revised' after every 5 years. Section 232 of the Cantonment Board Act was read to show that no power to revise or review has been given therein. It was stated that the annual rental value of the buildings has not been enhanced since 1970 and therefore, the water rate could not have been enhanced. The learned counsel also relied on sections 60-63 to say that in any case the given procedure has got to be followed before the water tax could be revised. Lack of opportunity to object to any proposal that might have been made was also pressed into service.
7. The learned counsel for the respondent relied on section 15 of the Act and the notification dated 23rd June, 1971, already referred to above, to say that as a Magistrate had been substituted for that of the Chairman on the Board it cured the defect, if any, in the constitution. In the alternative, the learned counsel relied on section 55 of the Cantonment Board Act to say that any vacancy or absence of elected members would not render any resolution of the Board void. As regards the objection regarding lack of power to revise or enhance the water rates, the learned counsel relied on section 21 of the General Clauses Act to say that when an authority has the power to do a particular thing, it has also the power to change or vary the same. He also relied on section 232 of the Cantonment Board Act to say that the Board could itself levy water charges and was not obliged to follow the procedure given in sections 60-63 and refer the matter to the Central Government for its approval.
8. The argument of the learned counsel for the respondent with regard to the first point appears to be quite valid. It is admitted that the elected representatives as mentioned in section 13-A have not participated in the management of the Cantonment Board affairs since 1970. However, section 55 does specifically provide that no resolution of the Board shall be invalid for the reason that the Board was not properly constituted. This protection, therefore, takes care of the present situation and I do not think that the resolution, if otherwise competently made, could be challenged by this objection.
9. As regards the applicability of section 232, I do not think that the approach of the two learned counsel is correct. Section 232 only empower the Board to fix and levy charges to be made for the establishment of tom medications from and connection with mains or pipes for the supply of water or gas. The Board is further empowered to fix and levy the charges for meters and other appliances meant for testing the quantity or quality of the water or gas supplied.
10. It is rather section 220 which takes care of the charges forth water supplied. Section 2200) authorises the Board to permit the owner, lessee or occupier of any building or land to connect the buildings or land`' with a source of public water supply by means of communication pipes of, such size and description as it may prescribe for obtaining water for domestic 'use. Section 220(2) provides that the occupier of every building so connected with water supply shall be entitled to have for domestic use, in return for the water lax, if any, such quantity of water as the Board may determine.
11. It is admitted on both sides that the water supply being obtained by the present petitioners is for their domestic use. Their case is, therefore, covered by section 220 (2) and they are entitled to have the water supply in return for water tax, if any. Subsection (2) therefore, specifically provides that though the occupier of every building so connected with the water supply is entitled to have such quantity of water for domestic use as the Board may determine, it has got to be in return for the water tax, if any. It is admitted before me that water tax had been imposed in the Lahore Cantonment. It is also clear from the first notification of 1931 already referred to above. In the circumstances the water for domestic use has tog be supplied against the water tax.
12. The learned counsel for the respondent had also placed reliance on section 220(3) in support of his plea that the Board can itself fix water charges. It provides that a water supply in excess of quantity to which such supply is limited under subsection (2) and in a Cantonment in which the water tax is not imposed, the water charges shall be paid for at such rates as the Board may fix. It is conceded before me that the petitioners in the present case are not asking for any supply of water in excess to the quantity to which they are entitled under subsection (2). It is also admitted by the parties that the water tax has been imposed in the Lahore Cantonment. Subsection (3), therefore, does not apply.
13. The learned counsel for the respondent submitted that the petitioners may not get water and thus may not pay the charges which were nominally revised to meet the rising cost of water supply. I am afraid the first part of the contention of the respondent rather goes against the purpose of the Act. It is the duty of every Cantonment Board to maintain good hygienic conditions as the same is necessary for the defence forces of the country. It is for this reason that section 221 empowers the Board to require of the owners, lessees or occupiers of buildings or lands which are not already connected with a proper supply of pure water to get water connection. The other contention of the respondent is not only valid but reasonable and genuine but the 13oard has to act in accordance with law to achieve its purpose.
14. Section 222 also does not apply to the case as it provides for supply of water under agreement.
It, however, does not apply to water being used for domestic purposes. Section 232, as discussed above, is also not relevant as it empowers the Board to fix rates and charges for the establishment of communication from and connection with main or pipes or for supply of meters or other appliances. I am, therefore, quite clear that section 220(2) only applies to the case in hand and the respondent could only charge water tax for the supply of water meant for domestic use.
15. 'Water Tax' is not defined in the Act itself. Section 220(2) read with section 220(3), however, makes it quite clear that water rates can be fixed by the respondent only if no water tax is imposed in any Cantonment Section 222 makes this position further clear to entitle the parties to settle their terms and conditions for supply of water, other than for domestic use, by agreement. Thus water tax is a tax as provided in section 60. It lays down that the Board may, with the previous sanction of the Central Government, impose in any Cantonment any tax which under any enactment for the time being in force, may be imposed in any Municipality wherein such Cantonment is situated.
Section 61 provides that after the passing of a resolution for imposition of tax, the Board shall, in the manner prescribed in section 255, publish a notice specifying the proposal to persons or classes of persons to be made liable and the description of the property or other taxable thing or circumstance in respect of which they are to made liable and the rate at which the tax is to be levied. These proposals are then to be published for objections. After hearing objections the final proposal has to be placed before the Central Government, through the Officer Commanding-in- Chief, the command, for its approval with or without modifications as it thinks fit.
16. It appears from the proceedings of the respondent dated 5th June, 1967, that the respondent had vide resolution No. 36 dated 31st March, 1966, decided to enhance the existing minimum amount of water tax from Rs. 12 to Rs. 24 and from Rs. 16 to Rs.
30. After completing all the formalities and hearing objections the final proposals had been submitted to the Government of Pakistan for approval. That approval was, however, still awaited when the respondent itself revised the previous N rates by enhancing them. It was done under the supposed powers vesting in the respondent under section 220 read with section 232 of the Act. No such power vested in the respondent as discussed above, under the above noted provisions of law. Likewise the revision by the respondent of the water rates vide the impugned resolution No. 14 dated 17th January, 1974, read with No. 24 of 21st March, 1974, is not valid so far as it concerns water supply for the domestic use only.
17. The next question is, should the petitioners be allowed the relief claimed. It is to be noted that the petitioners are only five in number against lacs of people living in the limits of the Lahore Cantonment Board. No other person challenged the levy and, therefore, had no objection against it.
The levy itself is neither exorbitant nor even unreasonable as is clear from the resolution No. 14 (Annex. 'A'). Even the petitioners did not raise the specific objection considered by me above. The water supply has' been used by the petitioners throughout.
18. It is also not necessary that the Court must allow relief to every petitioner if it comes to the conclusion that the impugned order was illegal or even void. Reference be made to the judgment of the Supreme Court in the case of Ghulam Mohyuddin (PLD1964SC829). The Courts have also refused relief in number of other type of cases. For example it has not granted relief if it is based on pure technicality or if the defect is likely to be cured rendering the order of the High Court an exercise in futility.
19. No serious loss has come to the petitioners in this case. The petition is based on a mere technicality as water supply has been consumed and paid for. I have, therefore, come to the conclusion that no relief is necessary in this case, either in the interest of Justice or even for general public benefit.
For the reasons given above, this petition is disallowed with no order as to costs. The respondent must however. Take necessary steps to get the position set right in accordance with law.