PESHAWAR: The Peshawar High Court has declared the imposition of conservancy fee by Peshawar Cantonment Board since 2011 as illegal and directed the board to refund the amount to the petitioners including owners of different plazas.

A PHC bench comprising Justice Yahya Afridi and Justice Irshad Qaiser allowed three writ petitions in respect of imposition of conservancy fee through a resolution passed by the board on May 18, 2011.

The bench ruled that since there was no provision with regard to the imposition of conservancy fee, therefore, the imposition of conservancy fee by the Cantonment Board, Peshawar through resolution No.2 on May 18, 2011, was held to be without lawful authority and void for having being levied in violation of statutory provision contained in Cantonment Board Act, 1924.

The bench had reserved its judgment few days ago after completion of arguments by both the parties and pronounced it on Thursday.

Directs Peshawar Cantonment Board to return the amount to petitioners

The petitions were filed by owners of different properties in Cantonment area including Zarif Khan, Mohammad Nisar and Riazullah.

The bench ruled that the provisions of section 116-C read with chapter 10 of the Cantonment Act 1924 very clearly gave it to understand that “sanitation” and “cleansing” were one of the duties of the Cantonment Board.

Advocate Farmanullah Khattak appeared for the petitioners and contended that the conservancy fee did not find any backing or support for its being charged in any of the provision of the Cantonment Act, 1924. He argued that the Cantonment Board had no authority to levy conservancy fee on different units including residential units through the controversial resolution of 2011.

The counsel for the Cantonment Board contended that there were provisions in the Cantonment Act empowering the board to impose any fee including conservancy. He added that section 98 and 131 of the Act empowered the board in that regard.

The bench ruled that from perusal of the contents of section 98 of the Act it revealed that this provision was related to an altogether different situation, where board had to make special provisions for cleansing of any factory, hotel, club or group of buildings or land for any purpose and under one management.

“In that case the quantum of fee/ rate has to be determined by a written agreement with the person liable for payment of conservancy charge in respect of such building.”

The bench ruled that since there was nothing on record that through this resolution the fee had been imposed on different units including residential and commercial units with consent and written agreement of the owners, therefore section 98 of the Act was not applicable to the case of petitioners.

The bench observed that the respondents including the Cantonment Board could not point out any law on the basis of which impugned resolution was passed and conservancy fee was imposed. “It is settled law that no authority could impose any fee unless empowered by law.”

Two of the petitioners had also challenged increase in water charges by the Cantonment Board. However, the bench turned down that plea, observing that the facility of supply of water by the Cantonment Board to the domestic consumer was governed by section 220 of the Act and since controversial question of imposition of water charges were involved and the alternate remedy by way of appeal was available to the petitioners, therefore, the prayer of the petitioner could not be entertained by this court in exercise of writ petition.

Published in Dawn, July 31st, 2015

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