2011 C L C 6 0 1
[Quetta]
Before Ghulam Mustafa Mengal and Muhammad Noor Meskanzai, JJ
CHAKAR ALI KHAN RIND ----Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Secretary and 3 others ----Respondents
Constitutional Petition, No.635 of 2009, decided on 31st December, 2010.
(a) Constitution of Pakistan ---
----Arts. 9, 24 & 199 ---Civil Procedure Code (V of 1908), O.I, R.8 ---Constitutional
petition --Petitioner sought direction to authorities for construction of protective wall to
save the residents of the area from floods caused by construction of a dam ---Validity ---
Objection raised by respondents as to representative capacity of petitioner in filing the
petition was technical in nature ---Petitioner had been representing the people of the area for
redressal of the grievance ---State was under constitutional obligation to protect the life,
liberty and property of the people under Arts.9 & 24 of the Constitution ---Inhabitants of the
area were faced with genuine threat to their life and property by floods which had led the
Government to undertake construction work on the protective wall ---Subjects were entitled to
compensation and rehabilitation by the State in case of any loss, damage or destruction in
consequence of floods etc. ---However, loss suffered by petitioner could not be determined by
the court in its constitutional jurisdiction ---Petitioner was at liberty to file suit for redressal of
his grievance in the court of competent jurisdiction ---Petitio n was disposed of accordingly.
(b) Constitution of Pakistan ---
----Arts. 9 & 24 ---State was under constitutional obligation to protect the life, liberty and
property of people under Arts.9 & 24 of the Constitution.
Petitioner in person.
Abdul Az iz Khan Khilji, Addl. A. -G. for Respondents Nos.1 and 2.
Ms. Iram Mehmood for Respondents Nos.3 and 4.
Date of hearing: 20th October, 2010.
JUDGMENT
GHULAM MUSTAFA MENGAL, J. --- Through this constitutional petition, the petitioner
has prayed fo r the following relief: ---
(a) That the peoples of the area along with Kech River and Mirani Dam are entitled for
steps to protect their life and property due to construction of Mirani Dam and entitled
for protection from flood.
(b) The official respon dents may be directed to take measures and construct protection
wall to protect the people and their land from the flood.
(c) That the official respondents be directed to pay compensation for the damage they
suffered due to flood.
(d) Any other relief as may be deem fit and proper in the circumstances of the case may
also be awarded.
Briefly stated, facts of the case are that Mirani Dam was constructed by the WAPDA, which
is approximately 30 Kilometers from the Village Union Council Kosh Kalat and oth er
villages. It is the case of petitioner that on 26th of June, 2007 due to heavy rain falls peoples
of the area suffered heavy losses due to non -construction of protection wall, in spite of the
fact that the Irrigation department and WAPDA authorities ass ured the people of the area of
Kosh Kalat that they will construct a Protection Wall but the same was not constructed. It is
also the case of petitioner that Spillway of Mirani Dam was also small and water could not be
discharged in proper quantity. The pe titioner approached the Project Director, Mirani Dam
and Irrigation Department authorities for construction of protection wall, as the life and
properties of the peoples of the area residing and having agricultural lands on both sides of
the river Kech are in danger, unless steps not taken to protect the life and properties of the
area, hence this petition.
Notice was given to the respondents who in response to the notices filed separate parawise
comments. According to respondents the damages/loss was not caused due to non -
construction of protection wall but due to cyclone generated in the bay of Bengal and
extraordinary rainfall 177 m.m. was recorded in. Torbat, which has never been recorded in
the past 10,000 years. Kosh Kalat is situated on the left ban k of Kech River. The heavy forest
in the Kech Kore acts as a barrier in the way of flood and due to this barrier the flood water
heads up and over topes the flood protection Bund which is constructed for the protection of
Kosh Kalat. That was the reason, t hat Kosh Kalat suffered heavy damages/losses in the flood
of 1998. It was further stated that the Government of Balochistan, Irrigation and Power
Department has prepared a PC -I for flood protection of left and right Banks of Kech Kore is
costing Rs.84 mill ion, which has already been approved by the Federal Government in
Federal PSDP during 2009 -10 and the work on Construction of Flood Protection Bund is
under progress and 40% Physical work has been completed since 2009 -2010. This fact is also
admitted by th e petitioner in para 5 of his petition.
We have heard the petitioner as - well as learned Additional Advocate -General. .At the very
outset the learned Advocate -General raised objection on the maintainability .of the instant
petition. Accordingly to him th e petitioner has filed the instant petition in representative
capacity without permission of this Court and notice to the all concerned, as required under
Order I, Rule 8, C.P.C. He further contended that this Court in exercise of its jurisdiction
under Ar ticle 199 of the Constitution of Pakistan can neither enter into factual controversies
nor decide disputed question of facts.
At the first instance, we would like to deal with the objection of learned Advocate -General.
The objection so raised is too tech nical in nature. Petitioner is a local of Kosh Kalat. The
documents appended with the petition reflect that almost on all occasion petitioner has been
representing the people of area as far as this particular grievance is concerned. Even
otherwise the Stat e is under constitutional obligation to protect the life, liberty and property
of people of Pakistan. According to Articles 9 and 24 of the Constitution of Islamic Republic
of Pakistan, the State has to discharge its constitutional obligations, therefore, the objection of
learned Advocate -General is overruled and Constitution petition is found to be maintainable.
Articles 9 and 24 of the Constitution is reproduced herein below: ---
"9. No person shall be deprived of life or liberty save in accordance with law.
24. (1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a
public purpose, and save by the authority of law which provides for compensation
therefor and either fixes the amount of compensation or specifies the principles on
and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of --
(a) any law permitting the compulsory acquisi tion or taking possession of any property
for preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or
come into the possession of, any person by any unfair means, or i n any manner,
contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which
is or is deemed to be enemy property or evacuee property under any law (not being
property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State
for a limited period, either in the public interest or in order to secure the proper
management of the property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of --
(i) providing education and medical aid to all or any specified class of citizens; or
(ii) providing housing and public facilities and services such as roads , water supply,
sewerage, gas and electric power to all or any specified class of citizens; or
(iii) providing maintenance to those who, on account of unemployment, sickness,
infirmity or old age, are unable to maintain themselves; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as
is referred to in this Article, or determined in pursuance thereof, shall not be called in
question in any Court.
The par awise comments filed by the respondent reflect that factually the inhabitants of the
area approached a genuine threat to their lives and properties on account of flood in river
Kech that is why the construction of protection wall has felt necessary and the construction
thereof has been started. We expect that the construction shall be completed as soon as
possible and the Government is bound to take each and every measure to expedite the
construction of protection wall. There shall be no compromise on the q uality of work. The
respondents are bound to provide fund and the construction work essentially to be completed
within the stipulated period. As far question of compensation is concerned, no doubt the
subject of the State deserves compensation and rehabili tation by the State, in case if any loss,
and destruction occur in consequence of flood etc. In this case while exercising the
constitutional jurisdiction it is impracticable for us to determine that how much loss was
sustained by the petitioner and the in habitants of area. Therefore, petitioner is at liberty to file
suit for the redressal of his grievance in the Court of competent jurisdiction if so advised.
Petition stands disposed of in above terms.
A.R.K./3/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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