ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
C.P.No.D-3082 of 2016
DATE ORDER WITH SIGNATURE OF JUDGE
Present:
Mr. Justice Salahuddin Panhwar &
Mr. Justice Khadim Hussain Tunio.
29.12.2016.
Mr. Abdul Ghaffar Narejo, advocate for petitioner.
Mr. Allah Bachayo Soomro, A.A.G, a/w Abul Hassan Asstt: E. Engineer Kot Ghulam Muhammad Sub Division, Akbar Executive Engineer.
Mr. Ishrat Ali Lohar, advocate for interveners
Khadim Hussain Tunio, J:- Through instant petition, petitioner has prayed as under:-
a) Declaration that khatedars of Water course No.291/3 of Daleri minor legally cannot take water from water course in question i.e WC No.290-A/1 of Jamrao hence the NALI illegally attached into water course in question for irrigation lands of WC No.291/3 of Daleri Minor was/is illegal and is against cost of right of petitioners.
b) Direct the respondents, in particularly the respondent Nos.1 and 2 to immediately remove illegally and unlawfully attached NALI, attached into water course in question Wc No.290-A/1 of Jamrao to irrigate lands, settled on WC No.291/3 of Daleri Minor.
c) Direct the respondents, in particularly the respondent Nos.1 and 2 to ensure legal and stern action against all guilty of putting / attaching illegal and unauthorized NALi, attached into water course in question WC No.290-A/1 of Jamrao to irrigate lands, settled on WC No.291/3 of Daleri Minor.
d) Cost of the petition be awarded to the petitioners.
e) Any other relief, this honourable court deems fit and proper under these circumstances, may be awarded.
2. Official respondents have filed their reply alongwith sketch contending therein that private respondents are having sanctioned source of water supply for their agricultural lands from watercourse No.291/3. They have placed map showing therein the locations of Daleri distry, Daleri minor and Nodani Feeder. They further contend that in 1973 Khatedars issued approval for shifting of watercourse No.291/3 to Nodani feeder by providing extra water from Daleri distry and that order however was recalled subsequently which again was restored in 1980.
3. The interveners / applicants have also reiterated contents, mentioned in their application and supporting affidavit; they added that they have been receiving water from this source since long, however, did not deny that their sanctioned source of irrigation water from WC No.291/3 of Daleri distry.
4. We have heard respective parties, irrigation present officials and interveners too as well have examined available material with help of present irrigation officials.
5. There can be no denial to the fact that since the ‘water’ is meant for drinking as well as for ‘irrigating the lands’ therefore, to have proper and legal share of water both for drinking and irrigation purposes would always fall within meaning of fundamental rights. The former is guaranteed by Article 9 while the latter is guaranteed by Article 18 of the Constitution as ‘agriculture’ is undeniably is a recognized lawful trade/business, therefore, any complaint in this regard should not only be attended by the department itself but should be redressed even by taking help from law enforcing agencies. We are conscious that per law the Irrigation authorities though have been vested with certain power, jurisdiction and authority but same are always subordinate and subject to law and guarantee, provided by mother of all laws i.e. ‘constitution’. In short, the irrigation authorities under normal circumstances cannot deviate from the law, rules and procedure rather each of their act must be within four lines, sketched by the law itself else same shall be ‘void’. Reference, if any, needed can well be made to the case of Government of Sindh v. Muhammad Shafi, ( PLD 2015 SC 380) wherein it is held as:
“If an act was done in violation of law, the same shall have no legal value and sanctity, especially when the conditions/ circumstances which rendered such an act invalid had been expressly and positively specified in law.”
6. Reverting to merits of the case, the map, placed by irrigation authorities, is not disputed by any of the parties. As per map Nodani Feeder has direct source from Jamrao which is independent and passes through Kot Ghulam Muhammad city. Sketch further shows that Daleri distry is also having source from Jamrao canal but both (Noondani Feeder and Daleri minor) are independent in nature, character and status. The present irrigation officials admitted that both have their own independent ‘command areas’ and discharges. The sanctioned source of interveners is from watercourse No.291/3 but they had been receiving their water since years from the share of petitioners having active knowledge that the source/design, as sanctioned from Daleri distry to Nodani minor, is not working. It can safely be added without any reluctance that shifting of command area from one source to another though is permissible but shifting of command area at new source can or should never be allowed unless discharge of the source is increased as per newly brought area. This however was never done therefore, prima facie interveners had been receiving the water share of the petitioners which legally cannot, as it shall undeniably prejudice the rights of khatedars of such water course. Position in the instant matter was a little grave because a shifting of a water course from a distry to a feeder legally does not justify snatching water-share of an independent water course by linking a ‘Nali etc’ therein. Since, the irrigation authorities have not taken the plea of ignorance hence continuity of sucking water share of others (petitioners) was always illegal, void and even against vested rights of petitioners and other khatedars of WC No.290/A1. The peculiar situation has compelled us to say that a negligence of an authority towards its obligations & duties not only results in letting one to have undue favour at cost of the rights of entitled person but same also results in letting a sense of discrimination creep into the minds of people directly or indirectly involved with such act or omission of such authority. This not only hurts the purpose and object of such authority but also takes away the sense of guarantee of equal treatment which otherwise has to be jealously guarded by all the authorities, being directly subordinate and accountable to Constitution. Reference to case of Pir Imran Sajid & ors v. M.D/GM & Ors 2015 SCMR 1257 may be made wherein it is held that:
“11. It hardly needs to be emphasized that the whole edifice of government of the society has it genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights. Provision of Article 4 embodies the concept of equality before law and equal protection of law and save citizens from arbitrary / discriminatory law and actions by the governmental authorities. Article 5(2) commands that every body is bound to obey the command of the constitution’. Every public functionary is supposed to function in goods faith, honestly and within the precincts of its power so that person concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution.”
However, when the present irrigation officials, confronted with the above position, they had no explanation or reference to law or procedure for receipt of water share of petitioners by interveners (khatedars of an independent WC No.293/1), however, the interveners attempted while referring to considerable long. To this it would suffice to say that since, it has now become a well known principle of administration of justice that an illegality or multiplicity thereof can’t turn it into ‘legality’. Similarly, ‘continuity of an illegality for years together, even, is not an excuse to avoid the law to correct it which otherwise is the aim, object and purpose of ‘law’. Thus, the position, being so, brings the irrigation authorities under mandatory obligation to bring disordered affairs into an ‘order’ strictly as per commandment of law and procedure of Irrigation which is solely aimed to ensure proper and equitable supply of water to each khatedars regardless of his being big or small khatedars or even to tail-enders.
7. At this point, it is material to add that an action of law should not be delayed even on plea of hearing of an opportunity if prima facie it appears that same is with intent to defeat or delay the process of law or can amount to continuity of an illegality. However, since we can’t ignore the fact that per present irrigation officials there was shifting of watercourse No.291/3 to Nodani feeder by providing extra water from Daleri distry which however is not possible, due to bed level of lands, falling within the command of Noodani feeder hence khatedars of watercourse No.291/3, including interveners, will not be in a position to get water if the water course of petitioners is brought in order. The present irrigation officials and interveners even acknowledge that their original source is on Daleri minor and they will be able to receive their shares in accordance with law, if their sanctioned source (water course) is revived which is presently in abandoned condition. Irrigation officers present in court undertake that they would provide their share from their original source from watercourse No.291/3. In case if there would be any difficulty due to design of Daleri minor and difference between water level and that of land they will also allow lift machine but in accordance with law if interveners make such application. Thus, the term, bring things in order, shall always include assuring water not only to petitioners but also to interveners from their respective independent sources.
8. Accordingly, Executive Engineer and S.D.O are directed that they shall ensure complete discharge water on Nodani feeder and will also ensure that no attempt of breach or hindrance in water supply affairs goes unchecked. Needless to add that since any hindrance or breach always causes prejudice to certain vested rights therefore, the irrigation authorities shall ensure removal thereof without loss of any time as and when it comes to their notice and knowledge.
9. At this juncture counsel for interveners contends that since there is shortage of water, as such for one week they may be allowed to receive water from share of petitioners which the petitioners’ counsel agreed subject to permanent closing of watercourse No.291/3 from Nodani feeder and if interveners /private respondents will not claim/agitate continuity thereof before any authority. The said condition was agreed by counsel for interveners and since this settlement is confined to shares of petitioners and is interim-in nature for a week hence is allowed. This private understanding and settlement however shall not be of any excuse for irrigation authorities to completely bring of Water course no.291/3 and 290/A1 into order as per law. If there is any encroachment or resistance, the irrigation authority shall take help from the police for which SSP Mirpurkhas is directed to provide complete assistance for removal of encroachment on Noodani feeder as well water course no 291/3, at Dalerri minor.
Accordingly instant petition is dispose-off along with listed applications.
JUDGE
JUDGE