2022 C L C 965
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
MUHAMMAD AJMAL and others---- Applicant
Versus PROVINCE OF BALOCHISTAN through Secretary Irrigation and others----
Respondents
Review Application No.04 of 2021 in C.P. No.813 of 2019, decided on 14th September,
2021.
(a) Civil Procedure Code (V of 1908)---
----S.114 & O.XLVII, R.1---Review ---Jurisdiction---Scope ---Courts while reviewing
judgment/order could not sit as a Court of appeal as the grounds for appeal and review were
totally different from each other---Clerical, arithmetical, accidental, typographical and a
pencil slip mistake which was floating on the surface of record or which apparently was against the law coverable under O.XLVII, R.1 of the Civil Procedure Code, 1908, could be reviewed ---For entertaining a review application, impugned order must suffer from any error
apparent on the face of the order and permitting the order to stand will lead to failure of
justice ---In review, Court, in review, would not sit in appeal over its own order---Rehearing
of the matter was not permissible in law ---Review constituted an exception to the general
rule that once a judgment was signed/pronounced, the same should not be altered---Power of review could be exercised for correction of a mistake and not to substitute a view.
(b) Civil Procedure Code (V of 1908)---
----S.114 & O.XLVII, R.1---Review of High Court judgment passed in Constitutional
jurisdiction---Validity ---Applicants prayed for review of the judgment to the extent of
cultivation of wheat, barley contending that respondents did not place on record any kind of
laboratory reports in order to show that the crops sown by the applicants were harmful/dangerous either for human being or animals ---Held, that applicant s failed to point
out any illegality/material irregularity ---All the contentions of applicants had already been
duly attended in the impugned order--- Number of studies/research reports issued by relevant
departments of provincial government had been referred in the impugned judgment showing that sewage water was the richest source of micro/macronutrients; that the same was aimed
for the better growth and productivity of plants, however heavy metals contents in vegetables
and even soil would become very high which had harmful effects on human/animal health,
unsuitable for agriculture purpose and sewage water also contaminated the surrounding environment ---Review application was dismissed accordingly.
Shams- ud-Din Achakzai for Applicants.
Shai Haq Baloch, Addl: A.G., Ali Ahmed Kakar, Dr. Mir Sadat, President Balochistan
Council for Peace and Policy (BCPP), Professor Dr. Zahoor Ahmed Bazai, Director Quality
Education Balochistan and Ibrahim Baloch, DG, Balochistan Food Authority for
Respondents.
Date of heari ng: 27th August, 2021.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .----The instant Review Petition, filed
under Section 114 read with Order XLVII, C.P.C., carries the following prayer clause:
"It is therefore prayed that keeping in view aforesaid submissions, the application
may kindly be allowed and judgment dated: 29- 12-2020 be reviewed to the extent of
cultivation of wheat, barley and fodder in the interest of justice"
2. The operative part of the impugned order, dated 14.12.2020, passed in Constitutional
Petition No. 813 of 2019 read as under:
"In such circumstances, we are of the view that it is a fit case in which appropriate
directions should be issued for enforcement of fundamental rights of the people of Quetta city to enjoy peaceful and qualitative life. It is, therefore, directed as follows: -
1) That the cultivation of crops with contaminated and arsenic sewage water being extremely dangerous to human health as well animals, is an unlawful business which
should be stopped immediately.
2) The so called agreement allegedly executed between the representatives of the
parties whereby the farmers were allowed to irrigate their field with wastewater after
mixing it with (4 cusec) purified water is hereby declared illegal and void.
3) If anyone insists on cultivating crops with wastewater, the machinery of criminal law can also be made operative. The authorities concerned should always see that law
prevails and the citizens are made to obey and to act in accordance with law.
4) The PAF authorities are restrained from leasing out state properties to farmers for the purpose of cultivation crops with waste water.
5) The functionaries of Balochistan Food Authority will keep proper vigilance to
ensure that above directions are fully complied with and the Commissioner, Deputy
Commissioner and Provincial Police Officer are directed to extend full cooperation to
the Director General of Food Authority in the process of implementation of aforesaid
directions. Copy of this order be sent to the Office of the Chief Secretary, the Provincial Police Officer, the Commissioner, the Deputy Commissioner and the
Director General, Balochistan Food Authority for compliance and further necessary
action.
3. Undoubtedly, the Courts are vested the powers to review the orders, judgments, and
decrees with certain restrictions, limitations conditions, being provided in Section 114, and
Order XLVII, Rule 1 of the Code of Civil Procedure (C.P.C.). The Court while reviewing judgment, order cannot sit as a Court of appeal as th e grounds for appeal and review are
totally different from each other. Whenever, there is a clerical, arithmetical, accidental, typographical and a pencil slip mistake which is floating on the surface of record or, which apparently is against the law cover able under Order XLVII, Rule 1, C.P.C., could be
reviewed. The provisions of Section 114 and Order XLVII, Rule 1, C.P.C., for convenience are reproduced as under:
"S.114. Review. (1) Subject as aforesaid, any person considering himself aggrieved,-
(a) by a decree or order from which an appeal is allowed by this Code but from which no
appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Code,-
may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
"Order XLVII, Rule 1, C.P.C. Application for review of judgment -(1) Any person
considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but fro m which no appeal has
been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the
discovery of new and important matter or evidence which, after the exercise of due
diligence, was not within his knowledge or could not be produced by him at the time
when the decree was passed or order made, or on account of some mistake or error
apparent on the face of the record, or for any other sufficient reason, desires to obtain
a review of the decree passed or order made against him, may apply for a review of
judgment to the Court which passed the decree or made the order."
4. The most important requirement of entertaining a review petition is that the order,
review of which is sought, suffers from any error apparent on the face of the order and
permitting the order to stand will lead to failure of justice. In review, Court does not sit in appeal over its own order. Similarly re -hearing of the matter is impermissible in law.
Likewise, it constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. The power of review can be exercised for correction of a mistake and not to substitute a view.
5. At this juncture, a que stion arises, as to whether the case of applicant fits within the
four corners of review jurisdiction of this Court? Learned counsel for the applicant has failed to point any illegality or material irregularity in the impugned order. All the contentions raised by the learned counsel for the applicant has already been duly attended in the
impugned order. As far as, the contention of the learned counsel that the respondents did not place on record any kind of laboratory reports in order to show that the crops sown by the
applicants are harmful or dangerous either for human being or animals is concerned, the
same is also devoid of force for the reasons that a number of studies have been referred in the impugned judgment showing that sewage water is the richest source of micro and macronutrients this aims for the better growth and productivity of plant(vegetables, medicinal plants and higher plants) however, heavy metals contents i.e. Cadmium (Cd), Chromium (Cr), Copper (Cu), Nickel (Ni) and Lead (Pb), in vegetables and even soil become very high which have harmful effects on human and animal health. Besides the different studies, the respondent No. 5, i.e. Director General, Balochistan Food Authority, has also annexed a number of reports, issued by the Pakistan C ouncil of Research in Water
Resources, Water Research Center, Quetta, whereby samples of sewage water were collected from different points at Quetta and it was reported that the parameters of Total Soluble Solids (TSS), Biological Oxygen Demand (BOD) and C hemical Concentration Demand
(COD) are at very high ratio, which are not suitable for agriculture purpose and the sewage water also contaminate the surrounding environment.
6. Before parting with the order at hand, it would be pertinent to mention here tha t we
are conscious of the fact that due to scarcity of fresh water, sewage water is the main source of irrigation as we are living under arid to semi -arid conditions and agriculture in Quetta
valley without using sewage water is not possible and it estimat ed that 20% to 26% of the
total domestic vegetable production of our country is cultivated with wastewater. The use of
sewage water is a way to substitute and divert scarce fresh water resources away from
agriculture towards other beneficial uses and can a void pollution of fresh water bodies that
are used for high value purposes. Such water can only be used after proper treatment in order
to avoid risks to human health. After removal of all harmful pathogens and other pollutants, sewage water can be used fo r agricultural and even domestic use. The copy of this judgment
be sent to Secretary Health Department, Director General Food Authority, Director General,
Balochistan Water and Sanitation Authority (BWASA) and Administrator, Metropolitan
Corporation, Quett a for taking steps for establishment of water treatment plants in different
parts of Quetta.
For the reasons stated above, the applicant has not been able to point any illegality,
material irregularity or jurisdictional defect, thus, the application is he reby dismissed being
without substance.
ZH/166/Bal. Application dismissed.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,
let us know.