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Residents take DHA to court

KARACHI: Eight petitioners and the Defence Society Residents Association have taken the Defence Housing Authority (DHA) to court for levying refurbishment charges on the housing society’s plot owners.

The petitioners maintain that in May 2009, DHA’s governing body decided to levy refurbishment charges in Phases I to VII at different rates, varying from Rs150 per square yards to Rs1,000 per square yard, payable in two years in four equal instalments. DHA has banned all transfers, mutations and leases until this levy is paid, they state.

On Wednesday, a Sindh High Court division bench, comprising Chief Justice Sarmad Jalal Osmany and Justice Salman Hamid, heard arguments from both sides.

The petitioners’ counsel Dr Muhammad Farogh Naseem said that refurbishment charges are unlawful as DHA can only levy development charges, as it has in Phase VIII. He explained that DHA, apart from being a housing society, is also a developer – it builds roads, poles, drainage in areas as well. So DHA can take money to develop an area. “But their maintenance is not DHA’s job,” the counsel contended. “This is the jurisdiction of the Cantonment Board, Clifton (CBC) and DHA plot owners already pay the CBC a yearly amount for maintenance,” he said.
He also said that DHA levied the charge without giving any public notice or holding any discussion with the stakeholders, including the petitioners or their representatives. “They only notified of the charges through their website. DHA’s rules are not gazetted.”

The petitioners protested at the relevant level but no heed was paid and thus they were left with no choice but to move the court, he argued on the count of the maintainability of the petition.

He also questioned the rate of charge and said that there was no nexus between the nature and the character of the charge. He contended that there is no development work and yardstick for its calculation – the arithmetical area of the property. On this count alone, the levy can be declared illegal, Naseem argued.

Maintaining the jurisdiction argument, the petitioners’ counsel argued that DHA only allotted plots and after the allotment, the plots are out of DHA’s jurisdiction. He said that the delegation of powers to the executive, under articles 9 (2) (v) and 10 of the DHA Act 1980 that permit the levying of taxes and charges, is in violation of articles 175 (3) , 18, 23, 24 and 25 of the Constitution of Pakistan.

The charges are also in violation of the fourth schedule of the Constitution. “After the 18th Amendment, fees or charges cannot be levied on immovable property. Only taxes can be. As DHA is levying a charge, not a tax, it is violating Article 54 of the fourth schedule,” explained Naseem’s associate to The Express Tribune. The petitioners’ counsel appealed to the court to declare articles 9 (2)(v) and 10 of the DHA Act as mala fide and illegal.

Meanwhile, DHA’s counsel Khalid Javed – who was giving the factual arguments of the case – submitted that the Defence Society Residents Association had approached DHA to fix the infrastructure problems in the housing society. DHA had to build the drainage system in the area because the CBC was not doing anything and his client took the project on in good faith, he argued. DHA completed the task fast and effectively, without many funds, he added.

DHA’s lawyer submitted that it needed to levy the refurbishment charges to generate money for maintenance and renovation because it did not have enough money. On this, Naseem demanded that DHA’s bank accounts be submitted to court as it should prove its transparency.

The division bench adjourned the hearing till early next week and Sharifuddin Pirzada, the legal-arguments lawyer for DHA, will continue his arguments and Farogh Naseem will give his rebuttal for the conclusion of the case.

Source: Tribune

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