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Civil Petition for Special Leave to Appeal No. K‑94 of 1969, decided on 13th January 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, dated the 19th May 1969, in Second Appeal No. 394 of 1967).
-----S. 100‑Service of notice‑A question of fact‑Cannot be raised for first time do ,second appeal.
S. 99(1), cl. (a)‑Levy of conservancy tax‑‑‑Not dependent upon arrangement for collection and removal of refuse from every individual premises‑Arrangements for such collection and removal made in area concerned‑Validity of conservancy tax levied in respect of anyone of premises in such area cannot be questioned‑Municipality held, quite competent to charge conservancy tax in circumstances.
Abdur Rauf Khan, Advocate Supreme Court instructed by S. M. Hanif, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing : 13th January 1970.
‑The only point for consideration in this petition for special leave to appeal is whether the respondent‑Municipal Corporation was competent to recover conservancy tax from the petitioner in respect of property of the petitioners situated in the K. P. T. area. In this connection, the petitioner filed Suit No. 185 of 1959 in the Court of II Civil Judge First Class, Karachi, which was dismissed on the 18th September 1965. This decision was also upheld by the District Judge, Karachi, in Civil Appeal No. 691 of 1965, by judgment dated the 6th May 1967. The matter was then taken in the High Court in Second Appeal No. 394 of 1967. A learned Single Judge of the High Court, by judgment dated the 19th May 1969, allowed the appeal in respect of water tax and dismissed the appeal in respect of conservancy tax. The petitioners seek permission to file an appeal against this order.
The finding of the High Court is that the respondent has produced evidence to show that they are rendering conservancy services to the petitioners and other occupants of K. P. T. area. Mr. Abdur Rauf, learned counsel for the petitioners, has contended that the respondent‑Corporation, before charging thee conservancy tax, has not issued notice under section 99(1) the Karachi Municipal, Act. This objection was, for the first time, raised in the High Court in Second Appeal and was disallowed on the ground that it was a question of fact which should have been raised in the trial Court. In our opinion, the learned Single Judge of the High Court was perfectly justified in not allowing this objection to be raised for the first time at the stage of the Second Appeal. The learned Single Judge was right in presuming that conservancy tax must have been charged after notice to the occupants of the K. P. T. area. If this objection had been raised at the proper time, the respondent Corporation could have easily produced satisfactory evidence to prove that such notices were issued. The petitioners, therefore, are themselves to blame for not taking objection at the appropriate time.
On merits, the decision of the High Court is in keeping with the view taken by this Court in Civil Appeal No. K‑25 of 1967, decided on the 20th May 1969. It was held in that case that "clause (a) of section 99(1) does not require that arrangements for collection and removal of refuse from every individual premises should be made in order to enable levy of conservancy tax. When arrangements for collection and removal of refuse from Clifton area are already there, the validity of the conservancy tax levied in respect of the appellant's premises cannot be questioned on the ground that no arrangement has been made for collection and removal of refuse from the very premises of the appellant".
In the present case, there is sufficient evidence that the respondent‑Corporation is rendering services in connection with the removal and disposal of rubbish. In view of this, the learned Single Judge was perfectly justified in holding that the petitioners have failed to substantiate their claim that the respondent was not rendering any services whatsoever in connection with the removal and disposal of rubbish. The respondent ‑Corporation, therefore, was quite competent to charge conservancy tax from the petitioners. There is no force in the petition which is dismissed.
Leave refused.
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