IN THE HIGH COURT OF SINDH KARACHI
Constitutional Petition No. D – 4747 of 2016
Mr. Justice Nadeem Akhtar
Mr. Justice Arshad Hussain Khan
Petitioner : Rukhsana Yahya, through
Syed Muhammad Yahya Advocate.
Respondents 1 & 2 : Federation of Pakistan and Director General,
Military Lands & Cantonments, through
Mr. Mir Hassan, Standing Counsel.
Respondents 3 to 5 : Cantonment Board Clifton, Additional CEO-
Clifton Cantonment and Sub-Divisional Officer
(SDO), through Mr. Abdullah Munshi Advocate
along with Arfeen Minhas, Additional CEO,
Cantonment Board Clifton.
Date of hearing : 18.10.2016.
O R D E R
NADEEM AKHTAR, J. – The petitioner is the owner and resident of House No.111/1, Street No.28, Khayaban-e-Sahar, Phase VI, Pakistan Defence Officers’ Housing Authority, Karachi. According to the averments made in the petition, the petitioner had applied to respondent No.3 Cantonment Board Clifton (CBC) in the year 1997 for water connection in respect of her above mentioned bungalow. For this purpose, all the requisite formalities, including payment of the amounts required by the respondents, were fulfilled by her. As water was not being supplied through the regular supply line, the respondents started supplying two water bowzers to the petitioner on weekly basis. In the year 2003, additional amounts of Rs.4,845.00 and Rs.11,870.00 were demanded from her on the pretext that water will be supplied to her through the supply line instead of bowzers and water meter will be installed at her house, which amounts were paid by her. In the year 2005, she was directed by the respondents to replace the supply line at her own cost by lowering the same as it was higher than the distribution line. This requirement was also fulfilled by her at her own cost. The grievance of the petitioner is that despite fulfillment of all her obligations and despite her persistent protests and demands, the respondents have failed to discharge their duties and functions as water has not been supplied to her till date through the supply line and supply through bowzers is also irregular and insufficient.
2. It is urged on behalf of the petitioner that the respondents have deprived her from the basic and most essential necessity of life and as such have infringed her fundamental right guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 ; the respondents are wasting precious resources and public money as they have failed to design, develop and implement an efficient water supply system for the residents of Defence Housing Authority (DHA) ; and, employment of bowzers is only a temporary solution which in itself is a waste of public money, nuisance for the residents and hazardous to the environment. In the above background, the petitioner has filed this petition with the following prayer :
“a. Declare the impugned stoppage of water bowzers to the Petitioner by Respondents as illegal and ultra vires of the Constitution and law.
b. Direct the Respondents to immediately restore the supply of two water bowzers (One thousand gallons each) per week to the Petitioner’s residence.
c. Permanently restrain the Respondents from discontinuing the said supply of water bowzers in future on any pretext whatsoever. The Respondents and all those claiming any authority / agency or functioning under them may further be restrained permanently from taking any adverse, coercive, penal or other adverse action against the Petitioner and her property in any manner and on any pretext whatsoever.
d. Direct the Respondents to provide water through the direct line as the same is more cost effective and hassle free as compared to supply through bowzers. This will save considerable public money which is being wasted by the Respondents presently by employment of CBC bowzers and private tankers to supply water.
e. Grant costs of the Petition.
f. Grant any other relief deemed just and appropriate in the circumstances of the case.”
3. On our query, it is stated by Mr. Arfeen Minhas, Additional CEO, CBC, that water tax is charged and collected by CBC on annual basis from all the residents of DHA, including the petitioner. It is not the case of CBC that petitioner is not entitled to the supply of water on regular basis, or she has not fulfilled the requisite formalities, or she has defaulted in payment of water tax, or she has contravened any law, rule, regulation or bye-law. In fact, it is an admitted position that water has not been and is still not being supplied to the petitioner through the regular supply line and water has all along been and is still being supplied to her through bowzers as a stopgap arrangement. Thus, the respondents are duty-bound to supply / provide water to the petitioner, especially when they are charging and collecting water tax from her on annual basis for the whole year. Not only this, it is the statutory duty and function of CBC to ensure adequate and continuous water supply throughout the year not only to the petitioner, but also to all the residents within the territorial jurisdiction of CBC in consideration of water tax paid by them. It may be observed that in case of failure on the part of CBC in discharging the above statutory duty and function, CBC may disentitle itself from charging, claiming or collecting water tax from the residents. Our above views find strong support from Sections 217 and 220 of the Cantonments Act, 1924 (‘Act of 1924’), which read as under :
“217. Maintenance of water-supply. – (1) In every cantonment where a sufficient supply of pure water for domestic use does not already exist, the Board shall provide or arrange for the provision of such a supply.
(2) The Board shall, as far as possible, make adequate provision that such supply shall be continuous throughout the year, and that the water shall be at all times pure and fit for human consumption.”
“220. Supply of water. – (1) The Board may permit the owner, lessee or occupier of any building or land to connect the building or land with a source of public water-supply by means of communication pipes of such size and description as it may prescribe for the purpose of obtaining water for domestic use.
(2) The occupier of every building so connected with the water-supply shall be entitled to have for domestic use, in return for the water tax, if any, such quantity of water as the Board may determine.
(4) …………………” (Emphasis added)
4. In the above context, we may also refer to Section 221 of the Act of 1924, which reads as under :
“221. Power to require water-supply to be taken. – If it appears to the Board that any building or land in the cantonment is without a proper supply of pure water, the Board may, by notice in writing, require the owner, lessee or occupier of the building or land to obtain from a source of public water-supply such quantity of water as is adequate to the requirements of the persons usually occupying or employed upon the building or land, and to provide communication pipes of the prescribed size and description, and to take all necessary steps for the above purposes.”
It is significant to note that though it is an admitted position that the petitioner’s house is without a proper supply of water, yet CBC has not issued any notice to her in terms of Section 221 ibid requiring her to obtain water from a source of public water supply, nor has CBC taken the necessary steps in this behalf as contemplated in the said Section. For this reason also, CBC has no other option but to discharge its statutory duty and functions under the law by supplying, providing and arranging adequate and continuous water supply throughout the year to all the residents within its territorial jurisdiction.
5. In Ms. Shehla Zia V/S WAPDA, PLD 1994 S.C. 693, the Hon’ble Supreme Court was pleased to hold as under :
“Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word ‘life’ is very significant as it covers all facts of human existence. The word ‘life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. ….…… Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbour-hood or at a far-off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the possibility of danger come forward and this has happened so in the present case.” (Emphasis added)
The aforementioned case before the Hon’ble Supreme Court was in respect of construction and installation of a grid station in a residential area due to which local residents of that area were being affected. In the present case, all the residents living within the jurisdiction of CBC, who are hundreds and thousands in number, are being affected because of non-supply, lack of supply and irregular supply of water for domestic and other personal use. Therefore, in our humble opinion, the above authority of the Hon’ble Supreme Court is fully applicable to the present case and we are bound to follow the same in view of the important principles laid down therein regarding safeguard of life, liberty, and dignity of every citizen in accordance with law and the Constitution, entitlement and enjoyment of basic amenities, facilities, healthy environment, etc. by every citizen, and sufferings of people due to inaction and failure on the part of civic, municipal and other relevant agencies. Needless to say that like Article 184, Article 199 of the Constitution can be invoked in such cases.
6. It was contended by the learned counsel for CBC that supply of water by CBC to its residents is dependent upon the supply of water to CBC by Karachi Water and Sewerage Board (KW&SB). We have noticed that no agreement or other document in this behalf between CBC and KW&SB has been placed on record. However, contention of the learned counsel appears to be correct as KW&SB is the principal source / supplier of water for all parts of Karachi. We are conscious of the fact that due to increase in the population and construction, the city faces shortage of water frequently. Be that as it may, CBC, after granting approval for building plans, construction and water connections within its jurisdiction, and charging and collecting water tax from the residents, cannot be absolved from the above mentioned statutory duty and functions for providing necessities of “life” to the residents as held in Ms. Shehla Zia (supra). In view of the above, it is the duty of CBC to arrange water from the principal or other source as per the requirements and needs of the residents / water tax payers.
7. It may be observed that before granting permission in an unplanned and indiscriminate manner to the owners of the properties to raise construction and occupy the same, CBC ought to have considered the impact of population of residents on the limited source and supply of water by keeping in mind the elementary and universal principle of ‘demand and supply’. Indeed the Constitution of our country guarantees fundamental rights to every citizen and also equal treatment vis-à-vis such rights. However, this does not mean that on the pretext of granting such rights to new applicants / consumers, the citizens who are already enjoying such guaranteed fundamental rights should be deprived or their rights should be curtailed or restricted. In our humble opinion, fundamental rights relating to “life” and human existence / survival and enjoyment of amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally, cannot be disturbed at the expense of purported grant of such rights to others. It is, therefore, expected that in future CBC shall ensure that permissions and approvals for fresh construction and new water connections are granted without disturbing, restricting or curtailing the rights of all those residents who are already enjoying such rights.
8. It may further be observed that the public functionaries and all such departments and organizations which are legally bound to perform their functions and duties for the safety, wellbeing and betterment of general public, must perform their functions and duties with prudence, vigilance and full responsibility. It is well-settled that justice should not only be done, but it should be seen to have been done. We are of the view that similarly duties should not only be discharged, but they should be seen to have been discharged. Proper policies, schemes and plans should be made by them with the assistance of relevant and qualified professionals keeping in view all eventualities in advance rather than waking up at the last minute or after violating fundamental rights of citizens. Sensible, considerate and effective policy making would mean consideration of welfare and safety of human beings and environment first, and then planning and execution of such policy accordingly. The question involved in the present case relates directly to fundamental rights relating to “life” and human existence and enjoyment of amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. We are, therefore, constrained to treat this matter as public interest litigation.
9. Respondents 3, 4 and 5 have not opposed this petition. They have filed today an application under Section 151 CPC praying that an order be passed in the instant petition in terms of the statement made therein. Office is directed to assign CMA number to the said application and to place the same at the proper place in the Court file. The statement made in the said application reads as under :
“That due to acute shortage and scarcity in supply of water occurring from time to time, Cantonment Board Clifton as municipal authority has to arrange for additional water bowsers for the residents of Defence Housing Authority (DHA) to whom water is not being supplied on regular basis in the water supply line, which as per present policy is to apply online where after coupons are issued for five (5) water bowsers per month per property due to shortfall in supply, which are allocated automatically by computer software. In the circumstances, the aforesaid Respondents Nos. 3, 4 and 5 have no objection to continue the practice of supplying five (5) water bowsers per month to the Petitioner as well as other residents of DHA to whom water is not being supplied on regular basis in the water supply line as per present policy and procedure subject to availability of water and regular payment of dues by the Petitioner and residents.
NOTE: 1000 GALLONS BOWSER. ”
10. It is stated on behalf of CBC that the above statement will be displayed by CBC on its website. Learned advocates for the petitioner and respondents 3, 4 and 5 as well as Mr. Arfeen Minhas, Additional CEO, Cantonment Board Clifton, agree that the petition and the listed application be disposed of with no order as to costs in terms of the above-quoted statement. Accordingly, by consent the application filed today is allowed, and resultantly the petition and the listed application stand disposed of in terms of the above-quoted statement and our above observations with further directions as under :
A. CBC shall file compliance report on monthly basis with the MIT of this Court at least for the next six (06) months.
B. CBC shall not be entitled to charge, claim or collect water tax from those residents to whom water is not supplied or provided through supply line or bowsers.
C. CBC shall display the above-quoted statement and these directions on its website and all notice boards with immediate effect, which shall not be removed without permission of this Court.
D. MIT of this Court is directed to serve this order immediately to the Administrator DHA and the President Defence Residents’ Association for their information.
J U D G E
J U D G E