ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-4201/2013

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Date Order with signature of Judge

1.For orders on Nazir’s report dated 10.11.2014.

2.For Katcha Peshi.

3.For hearing of CMA No.31728/2014.

4.For hearing of CMA No.18361/2014.

5.For hearing of CMA No.30920/2013.

6.For hearing of CMA No.27017/2013.

Present:-

1) Mr. Justice Syed Hasan Azhar Rizvi

2) Mr. Justice Shah Nawaz Tariq

Date of hearing: 21.04.2015:

Mr. Mehmood Ahmed Khan, Advocate for the Petitioner.

Mr. Asadullah Lashari, State Counsel alongwith SI Azhar

Iqbal, SHO Police Station Mithadar, Karachi.

Mr. Asadullah Memon, Advocate for Respondents No.2 & 7.

Mr. Khawaja Shamsul Islam, Advocate for Respondent No.3.

Syed Sultan Ahmed, Advocate for the Respondent/KMC.

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SYED HASAN AZHAR RIZVI, J:- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan has been filed by the petitioner with the following prayers:-

“(1) To declare that petition in absence of acquiring any water from the lines of Respondent No.2 is not liable to be exposed to any demolition action in this pretext as the same is illegal and in violation of fundamental rights of the petitioner as such not having force of law.

(2) To direct the Respondents through its officials to act strictly in accordance with law and to ensure that the actions as required by law are carried out only whereby the fundamental rights of the petitioner legally being present are not liable to be disturbed in any manner except due course of law.

(3) Permanent injunction restraining the Respondents from acting in violation of the fundamental rights of the petitioner.

(4) Cost of this petition.”

2. We have heard the learned counsel for the petitioner, learned counsel for the respondents No.2&7, learned counsel for respondent No.3, learned State Counsel and perused the available material available on record.

3. Mr. M. A. Khan, learned counsel for the petitioner has contended that the petitioner is member of Karachi Water Tankers Owners Welfare Association and is owners of the Rest Houses No.1 and 2, Moulvi Tamizuddin Khan Road, Karachi, wherein he operates a hydrant for non-drinking salty natural water/sub-soil groundwater supplied to industries for day to day use. He has also contended that there is no water connection or line of respondent No.2 and as such the petitioner established his business of supply of water for industrial and commercial use only by way of huge amounts of investments wherein expensive machinery is installed and much expanse has been put in by way of boring of deep wells also. He has drawn our attention to the letter dated 24.10.2012 and stated that Commissioner Karachi in consultation with the Karachi Water Tankers Owners Welfare Association framed a guideline for supply of ground water to industries and operation to be regulated through proper policy by way of permit/license and until the same is forthcoming the operation of the Tankers supplying ground water shall be allowed in the city. He submitted that the petitioner filed application to the respondent for issuance of license but till date no license has been issued.

4. Learned counsel for the petitioner urged that respondent No.2 has started demolition action against water hydrants on the pretext that they are stealing water from the line of the respondent No.2, which otherwise not possible without collusion and collaboration with its own officials. He also urged that petitioner in conducting its business in accordance with law as such entitled to be dealt accordingly and whereas he has not obtaining any water from the line/source of respondent No.2 therefore the respondent No.2 has no jurisdiction to take action against the petitioner. He also urged that despite restraining order dated 14.10.2013 passed in the instant petition, respondents have demolished the petitioner’s hydrant illegally on 27.11.2013 thereby committed contempt of Court. He, therefore, prayed for allowing the instant petition as petitioner is liable to be given protection as guaranteed by the constitution for his business and as such in absence of any wrong act present on his part is not liable to face any un-available and illegal action on the part of official respondents.

5. On the other hand, Mr. Khawaja Shamsul Islam, learned counsel for the respondent No.3/alleged contemnor has argued that the as per Section (7) of Chapter-V of Karachi Water & Sewerage Board Act, 1996, it is domain of the water board to produce and supply potable water and also it is under the domain of the KW&SB to regulate the water connections and water works including wells and recharge facilities for collecting purifying, pumping, storing and distributing water to all types of consumers. He also argued that there are so many reports of authenticated government laboratories that the sub-soil water is injurious to life as well as injurious to human being. As such, KW&SB has not issued such permission, water connection or not allowed to tankers to supply the sub-soil water. He further argued that the bungalow has not been leased out to the petitioner for operation of hydrant of non-drinking salty natural water and no one has been granted permission to operate, lift or regulate the sub-soil water and to supply the same to consumers, therefore, the petitioner though member of the Water Tanker Owners Welfare Association has no authority to play the lives of the citizens of Karachi. He contended that petitioner’s hydrant was demolished before filing of instant petition, however, when the respondent officials visited the subject hydrant found that the petitioner has an illegal hidden connection out of the water line of the KW&SB and he by mixing the water has sold out to the same for drinking purposes though he has written on his tankers ‘this water is not for drinking purpose’. He further contended that the petitioner is not the owner and he has no locus standi to file the instant petition, as he has failed to produce ownership of the subject property. As such, no case under Article 199 of the Constitution of Pakistan, 1973 is made out.

With regard to contempt as alleged by the petitioner is concerned, learned counsel submitted that the hydrant which was run by the petitioner was illegal, unauthorized as no any permission / license has been obtained by the petitioner for installing the same from the KW&SB. He also submitted that despite having prior knowledge of the orders passed by this Hon’ble Court for action against illegal hydrants, the petitioner has obtained the order dated 14.10.2013 by concealment of facts from this Court. He submitted that no contempt was committed on the part of the alleged contemnors as they have taken action for dismantled/removed/ demolished and disconnect the illegal and unauthorized hydrants in compliance of the orders passed by this Hon’ble Court in C.P. No.D-457/2013 and 4482/2012. He stated that not only this Court but the Hon’ble Supreme Court of Pakistan in HRC No.28963/2014 directed the respondents to take action against illegal and unauthorized hydrants. He submitted that the alleged Contemnors have neither disobeyed the order of this Court nor violated the order dated 14.10.2013 and the petitioner has moved the contempt application in order to blackmail the officials of KW&SB and to achieve his goal by illegal means and methods. He, therefore, prayed for dismissal of instant petition alongwith contempt application being not maintainable with compensatory cost.

6. Syed Sultan Ahmed, learned counsel for the alleged contemnor No.4 has submitted that the alleged contemnor is unaware about any order passed by this Court as the Administrator, KMC was not impleaded as party. He also submitted that the allegations made by the petitioner for violating the Court’s order against the answering alleged contemnor is absolutely wrong as he has full regard and respect and has not violated the direction and order of the Court. Therefore, the contempt application against the alleged contemnor No.4 is malafide and misconceived, hence liable to be dismissed with cost.

7. Mr. Asadullah Memon, learned counsel for the respondents No.2 and 7 adopted the arguments advanced by Mr. Kh. Shamsul Islam, advocate for respondent No.3. He, however, submitted that 200 hydrants have been demolished in compliance of the orders passed by this Court as well as by the Hon’ble Apex Court. He also submitted that no license/ permission is in possession of the petitioner. He also referred to Chapter-V of the Karachi Water & Sewerage Board Act, 1996 and submitted that the Board shall have the power to reduce, suspend or disconnect the water supply in the event of contravention of the provisions of this Act or regulations.

8. We have given due consideration to the arguments advanced by the learned counsel for the parties and perused the material available on record.

9. The point involved in the instant petition is whether the petitioner is running his hydrant legally or not. The submission of the learned counsel for the petitioner was that the petitioner applied for issuance of license to the respondent on 05.2.2012, which was not decided as yet and the respondent illegally and unlawfully demolished his hydrant despite restraining order is in the field. He stressed upon the letter dated 24.10.2012 issued by the respondent/KW&SB, which was based upon the meeting held between Tankers Owners Welfare Association and the Karachi Water & Sewerage Board wherein it was decided as under:-

“1. With the participation of concerned Govt. Departments and all Associations of Karachi’s Industrial areas and other stack holders including Tanker Owners and Hydrants operators, a concerted approach and framework shall be develop by KW&SB in due course of time.

2. The operation of ground water Hydrants shall then be regulated under the policy so worked out in the interest of overall Industrial and Commercial growth of the City.

3. Until such arrangement is made, the operation of Tankers supplying groundwater shall be allowed in the City as recommending by the trade Association of Industrials from various area.”

11. Admittedly, the petitioner is running his business of supply of non-drinking sub-soil/groundwater to various industries for day to day use without obtaining any license/permission from the competent authority. Moreover, the action of demolition taken by the respondent for which the petitioner moved contempt application on the ground that despite stay order dated 14.10.2013 the respondent demolished his hydrant. It is clear from the record that a Division Bench of this Court passed order on 13.3.2013 in Constitution Petition No.457/2013 directing the respondent/ KW&SB to dismantle / remove/ demolish / disconnect all illegal/ unauthorized hydrants in the city of Karachi without any further delay and to submit compliance report. Not only this, but the Hon’ble Apex Court in HRC No.28963/2014 directed the respondents to take action against illegal and unauthorized hydrants. Therefore, the said respondent/alleged contemnors in compliance of the orders passed by this Court taken action against illegal hydrants and demolished/dismantle the petitioner’s hydrant. As such, in our humble view, no contempt or disobedience of the Court’s order has been committed on the part of the respondents/alleged contemnors. On the contrary, the petitioner without disclosing the above referred order and by misrepresentation and misleading the Court obtained restraining order from this Court.

12. Needless to mention here that no civilized society shall permit the unfettered exploitation of its natural resources by any one particularly in respect of the water which is a necessity of the life. Ground water is a national wealth and belongs to entire society. It is a Nectar, sustaining life on earth and without water, the earth would be a desert, we find ourselves in agreement with Principle 2 of Stockholm Declaration, 1972 that the natural resources of the earth, including the air, water, land, flora and fauna especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. At this stage, we may quote a Kashmiri’s saying translated in English which is written in bold letters at the entrance gate of a section relating to environment, in Disneyland Orlando, Florida, USA which says “We have not inherited this land from our forefathers, we owe it to our children.” The future needs of our children are of prime importance and the Courts of law while dealing with the equitable relief of injunction should keep the same in view.

13. It is well settled that natural resources like air, sea, waters, and forests are like Public Trust. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status. “Doctrine of the Public Trust” as developed during the days of ancient Roman Empire, enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Even under the Islamic law certain water resources are to be protected from misuse and over exploitation. (Reference can be made to a discussion at Page 37 of the book ‘Environmental Dimensions of Islam’ by M. IZZI DIEN).

14. As a result of discussion made above, we find no substance in the instant petition because once the process of extracting the water in such a huge quantity is allowed to operate, each day, each hour, and each minute water deposits in the aquifer would diminish rapidly and shall adversely affect the rights of masses to use the underground water according to their genuine needs which shall amount to an irreparable loss to them. The petitioner has no permission or license for operating such hydrant, as such the petition is dismissed alongwith listed applications including contempt application.

JUDGE

Karachi; JUDGE

Dated:07.05.2015.