P L D 2012 Balochistan 154
Before Naeem Akhtar Afghan and Jamal Khan Mandokhail, JJ
Haji ABDUL MATEEN AKHUNDZADA and another ---Petitioners
versus
DISTRICT COORDINATION OFFICER/ DEPUTY COMMISSIONER, QUETTA and
5 others ---Respondents
Constitutional Petition No.340 of 2010, decided on 2nd February, 2012.
(a) Specific Relief Act (I of 1877) ---
----Ss. 42, 55 & 56(d) ---Balochistan Ground Water Rights Administration Ordinance (IX of
1978), Ss. 3(6)(d), 4 & 5 ---Civil Procedure Code (V of 1 908), O. VII, R. 11 & O. XXXIX,
Rr. 1, 2 ---Constitution of Pakistan, Art. 199 ---Constitutional petition ---Suit for declaration
and mandatory injunction ---Excavation of tube -well by plaintiff in unsettled/Baroon -uz-Line
land without obtaining NOC from Distr ict Water Committee ---Order of Collector directing
stoppage of boring of tube -well challenged by plaintiff through such suit ---Private
defendant's application under O. VII, Rule 11, C.P.C. for rejection of plaint ---Interim order
of Trial Court suspending o peration of such order of Collector ---Revision petition by
plaintiff challenging order of Trial Court impleading private defendant as party in the suit ---
Interim order of Revisional Court directing parties to maintain status quo ---Validity ---
Plaintiff inst ead of challenging such order of the Collector before Commissioner in appeal
had tried to flout and frustrate same by filing the suit, which Trial Court had wrongly
entertained and issued injunction order in favour of plaintiff in utter disregard to S.56(d ) of
Specific Relief Act, 1877 ---Suit for declaration to challenge an order passed by an official in
discharge of his public duty would not be maintainable as such official could not be
restrained nor an injunctive order could be issued to interfere with p ublic duties of any
department particularly in case of availability of remedies of appeal or revision thereagainst
under the relevant law ---Plaintiff had no lawful right or entitlement to carry out boring work
without permission of such Committee on suit l and, which was not recorded in plaintiff's
name in revenue record ---High Court accepted constitutional petition and rejected plaint in
suit pending before Trial Court and set aside all orders passed by Trial Court and Revisional
Court and referred matter t o such Committee for its decision in accordance with law after
hearing parties while directing plaintiff not to start any boring work till such decision.
(b) Administration of justice ---
----Judge, duty of --- Scope stated.
A Judge is under duty to deci de the matter justly and by applying correct law. The
Courts while dispensing justice are duty bound to apply the provisions of law in its true
prospective and application of the same cannot be avoided simply on the ground that the said
provisions of law w ere not brought to their knowledge by the parties as a Judge is supposed
to wear all laws of the country on the sleeves of his robe.
(c) Civil Procedure Code (V of 1908) ---
----O. VII, R. 11, Ss.96, 100 & 115 ---Rejection of plaint by Trial Cou rt, Appellate Court and
Revisional Court without application by defendant ---Scope.
Under Order VII, Rule 11, C.P.C., as soon as the cause appears for rejection, the
plaint should be rejected straightaway and such a suit should be taken off the file at its very
inception to relieve a defendant of vexatious litigation. A plaint can be rej ected at ay stage
and even by the Appellate Court or a Revisional Court and even without any application
being made by the defendant.
(d) Constitution of Pakistan ---
----Art. 199 ---Constitutional jurisdiction of High Court ---Scope ---Such jurisdiction was
meant to correct error of law resulting from excess or lack of jurisdiction ---Such jurisdiction
for being supervisory, discretionary and equitable would be exercised to aid and sub -serve
cause of justice, but not to defeat same.
(e) Administration of jus tice---
----Duty of courts.
Powers of courts to administer justice undisputedly is a sacred trust and they are
obliged by compulsion of law to carefully examine and analyze the material placed before
them before arriving at any decision or passing any ord er.
Syed Mumtaz Hussain Baqri for Petitioners.
Shabbir Rajput for Respondent No.5
Tariq Ali Tahir, Addl. A.G.
Date of hearing: 22nd December, 2011.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---Through this constitutional petition the
petitioners have sought th e following relief: --
"It is, therefore, prayed that respondents Nos. 1 to 4 may be directed to act in
accordance with law and to take action against respondent No.5 as available under
Ordinance IX of 1978 this will meet the ends of justice.
2. Facts of t he case are that respondent No.5 started excavation of tube -well in Mahal
Rehman Karez, Mouza Karezat Kuchlak against which an application was submitted by the
petitioners to respondent No.1, stating therein that Malik Abdullah, Malik Muhammad
Ashraf sons of Shah Jahan and Alamzeb son of Malik Amir Jan, caste Kakar Mehterzai,
residents of Killi Malik Shah Jahan, Tehsil Quetta have started excavation of boring in the
Shamilat lands of Karez Rehman without getting NOC due to which the rights of the
petitioner s and other Pattidars have been prejudiced and it was prayed hat boring work
should be stopped. The respondent No.1 marked the application to respondent No.2 with
orders to stop the boring immediately and Tehsildar and Nabi Tehsildar were ordered to
submit report and stop the boring. Reports were submitted by Naib Tehsildar as well as
Tehsildar confirming that the respondent No.5 failed to produce any NOC and the work was
stopped at the spot and it was further reported that the land is unsettled/Baroon -uz-line, but
the respondent No.5 asserted that the land has come to their share as Khanagi settlement.
Naib Tehsildar also issued letter to S.H.O. to stop the boring and to direct the party to shift
the machinery.
On 7th April, 2010, respondent No.2 also issu ed letter to Tehsildar Saddar to
remove or seal the machinery and impound the same in police station to avoid start
of illegal boring again and case should be registered against the accused involved in the
illegal activity.
3. In the me anwhile respondent No.5 filed a suit for declaration and mandatory
injunction against respondent No.1 before learned Civil Judge -II, Quetta, with prayer to
declare that respondent No.5/plaintiff is repairing and re -digging his tube -well and the
stoppage of work by the respondent No.1/defendant is without justification and further
prayed for direction to the respondent No.1/defendant not to stop the work of the respondent
No.5/plaintiff regarding repairing of his tube -well. Along with suit an application und er
Order XXXIX, Rules 1 and 2, C.P.C. was also filed by respondent No.5/plaintiff praying
therein to stay the operation of the order of respondent No.1/defendant regarding stoppage of
tube-well/boring. The learned Civil Judge -II, Quetta, vide order d ated 5th April, 2010
stayed/suspended the order of respondent No.1/defendant with regard to stoppage of tube -
well/boring till next date i.e. 7th May 2010. The petitioners submitted an application
under Order I, Rule 10, C.P.C. for impleadment as part y with averment that the respondent
No.5/plaintiff has started the excavation work in violation of Balochistan Ground Water
Rights Administration Ordinance, 1978 (hereinafter referred as the "Ordinance").
The petitioners also submitted an application under Order XXXIX, Rule 4,
C.P.C. to alter the interim order dated 5th April, 2010 and to direct the parties to
maintain status quo position regarding tube -well as in the garb of order dated 5th April, 2010
the respondent No.5/plainti ff will complete the excavation of tube -well/boring.
An application under Order VII, Rule 11, C.P.C. was also filed by the petitioners for
rejection of the plaint as the suit is barred under the Ordinance and any order of the authority
under the Ordinance is appealable.
On 7th May, 2010 the Senior Civil Judge -II, Quetta, modified the interim order dated
5th April, 2010 by directing both the parties to maintain status quo position till next date.
Subsequently, on 17th/May, 2010 application under Order I, Rule 10, C.P.C. was
allowed by the learned trial court and respondent No.5/plaintiff was directed to file amended
plaint and the interim order was further extended.
4. The respondent No.5/plaintiff challenged the order dated 17th May, 2010, a llowing
impleadment of the petitioners, before Additional District Judge -III, Quetta, by filing
revision petition which was registered on 18th May, 2010 and the order dated 17th May,
2010 was suspended till next date. The petitioners again filed an applica tion under Order I,
Rule 10, C.P.C. before the revisional court for their impleadment and also filed an
application under section 151, C.P.C. to clarify the interim order dated 18th May, 2010
and to specify the same to the extent that it relates only to the suspension of the
impleadment order of the petitioners and the status quo of the trial court shall continue. So
far, no further order has been passed on these applications by the revisional court. The
petitioners have filed the instant petitio n.
It has been contended by the petitioners that respondent No.5/plaintiff has taken the
law in his own hands and is carrying out illegal work of excavation/boring and respondents
Nos.1 to 4 despite having jurisdiction and powers have failed to implement their orders and
have failed to take action against respondent No.5/plaintiff due to status quo order passed by
the civil court.
5. Learned counsel for the petitioners Mr. Mumtaz Hussain Baqri, Advocate, argued that
the respondent No.5 with ulterior motive and mala fide intention has filed a civil suit to flout
and frustrate the order passed by the official respondents on the application of the petitioners
with regard to stoppage of illegal boring started by respondent No.5 without obtaining NOC
from the Di strict Water Board under the Ordinance. It was further argued that learned Senior
Civil Judge -II, Quetta, without applying judicial mind to the facts and circumstances of the
case, passed the interim injunction order on 5th April, 2010 in the garb whereof the
respondent No.5 restarted the work of his illegal boring and the order of the trial court with
regard to the impleadment of the petitioners as party to the suit has been challenged by
respondent No.5 before learned Additional District Judge -III, Quetta through civil revision
and the respondent No.5 has obtained an interim injunction order from the revisional court
and in the garb of the proceedings before the civil court, the respondent No.5 in fact has
restrained the authorities/official res pondents from proceeding under the provisions of
Ordinance.
On the other hand Mr. Shabbir Ahmed Rajput Advocate, appearing on behalf of the
respondent No.5 has strongly opposed the petition on the ground that the matter is sub -judice
before the court of c ivil jurisdiction and presently no adverse order has been passed against
the petitioners warranting interference by this court in extraordinary constitutional
jurisdiction.
Learned Additional Advocate General, Mr. Tariq Ali Tahir, in attendance along with
Mr. Muhammad Ayub Lashari, Naib Tehsildar, representative of Deputy Commissioner
Quetta, argued that the matter exclusively falls within the domain of the District Water
Committee in view of section 4 of the Balochistan Ground Water Rights Administration
Ordinance, 1978 and any order passed by the official is appealable to the Commissioner of
the Division under section 4(O) of the Ordinance and revisable under section 3(6)(d) of the
Ordinance and suit in this regard is not maintainable.
6. After hearing ar guments of all the learned counsel for the parties, we have carefully
perused the record. The record reflects that the respondent No.5 has started the boring work
in unsettled/Baroon -uz-Line lands in the area of Karez Rehman, Tehsil Kuchlak and in the
revenue record the land does not stand recorded in the name of respondent No.5. It further
reflects that respondent No.5 has not availed any permission of the District Water Committee
under section 4(c) of the Ordinance to extract the groundwater through borin g and the
official respondents after availing reports from the revenue officers ordered to stop the illegal
boring work of respondent No.5 and also ordered to remove the machinery from the site and
to impound the same in police station and instead of chall enging the orders of the official
respondents before the Commissioner in appeal under the Ordinance, the respondent No.5
has tried to flout and frustrate the same by filing a civil suit for declaration and injunction
and has succeeded in obtaining an inter im injunction suspending the orders of the official
respondents with regard to stoppage of illegal boring work.
The learned Senior Civil Judge -II, Quetta, without judicial application of mind to the
facts and circumstances of the case, after wrongly entertaining the suit against lawful order
of the official respondents has issued an injunction order in favour of respondent No.5 in
utter disregard to section 56(d) of the Specific Relief Act, which reads as follows: --
Section 56(d) ---An injunct ion cannot be granted to interfere with the public duties of
any department of (Central Government) or any Provincial Government or with the
sovereign acts of a Foreign Government.
7. The learned Senior Civil Judge -II, Quetta, failed to appreciate that, pr ima facie, the
suit for declaration filed by respondent No.5 to challenge an order passed by an official in
discharge of his public duty was not maintainable under section 42 of the Specific Relief Act
as the official respondents cannot be restrained nor a ny injunction can be issued to interfere
with the public duties of any department, particularly, when specific remedies of appeal and
revision are available under the relevant law before the forums. For convertence, the relevant
provisions of the Ordinance are reproduced herein below: --
Section -4---There shall be a Water Committee in each District to be constituted by the
Government.
(a) The Committee shall consist of Deputy Commissioner, Executive Engineer of Water
Supply Division, Director/ Project Engin eer, Quetta Authority (in respect of Quetta
District) Extra Assistant Director Agriculture and one non -official member to be
nominated by the Government. Executive Engineer, Water Supply Division of the
Irrigation Department, will be the Secretary of the C ommittee.
(b) The Committee shall work under the direct supervision and over -all control of the
Provincial Water Board for the purpose of carrying out the objectives of this
Ordinance.
(c) No person will be allowed to extract ground water within designated ground water
basins, without the permission of the District Water Committee.
(d) Any person who wants to extract ground water within designated ground water basins
will submit an application on prescribed form to the District Water Committee.
(e) The Comm ittee will invite objections in respect of the above application from various
persons having any interest in the ground water either in the vicinity of proposed
place of mining of ground water or in the basin as a whole.
(f) The Committee will hear all suc h objections and will give due opportunity to all such
interested persons to produce evidence in respect of their contention. After hearing
the parties it will either grant permission to the applicant to mine the ground water
subject to such condition as m ay be prescribed by it or it may reject the application.
(g) The District Committee while accepting or rejecting the application will give grounds
for doing so.
(h) The Committee will have the power to stop the extraction of ground water by any
unauthorize d person.
(i) The Committee will also have the power of forfeiting any machinery, equipment and
tools deployed for the purpose of unauthorized extraction of ground water.
(j) The Committee may also take cognizance of any dispute pertaining to any tube
wells/surface wells/ Karezes pending before any Revenue Officers.
(k) The Committee will also issue a permit to any person applying for a new tube well
which is a substitute for the abandoned well. The Committee may not hear objections
in such cases.
(l) The Committee may allow a permit holder to change the location of his well before
the completion of the well. It will amend the permit if it considers that the change of
location does not affect the existing water rights of any other person.
(m) While issui ng permit the Committee will ensure that the extraction of water by a
permit holder does not cause depletion of perennial stream or any other perennial
source of water.
(n) The decision of the District Water Committee on an application submitted to it for
extraction of ground water will be governed by the decision of the majority of the
members.
(o) Any person aggrieved of any order of the District Water Committee may file an
appeal before the Commissioner of the Division within a period of 30 days (who sha ll
dispose of the same after providing the appellant an opportunity of being heard).
(p) The Provincial Water Board shall have the power to call for the record of any case
relating to the water rights pending either before the District Water Committee or t he
Commissioner, to examine and satisfy itself as to the regularity, propriety and legality
of the proceedings and may after hearing the parties likely to be affected, set aside
any of the order or quash the proceedings, if it considers that any material i rregularity
has occurred so as to occasion a miscarriage of justice.
Section 5. ---The District Water Committee shall be responsible: -
(a) To implement the policies and directions given to it by the Provincial Water Board
from time to time.
(b) To issue w ater permits to various water users: and
(c) To hear and decide the objections raised by various persons about the use of ground
water.
Section 6. ---
(1) Any person contravening any provisions of this Ordinance shall be punished with
imprisonment of eithe r description for a term which may extend to one year or with
fine or both.
(2) The offence under the Ordinance shall be bailable.
(3) The Court shall not take cognizance of offence under this Ordinance unless a
complaint in writing has been made by the Di strict Water Committee.
(4) The Court while passing any sentence on a person accused of violating any provisions
of this Ordinance may, also order payment of compensation to the aggrieved person
out of fine imposed on the accused.
Under section 3(6)(d) of the Ordinance the Provincial Water Board works as
revisional authority against the decision of Water Committees and other tribunals charged
with the administration of water rights.
8. In the instant case, the learned Senior Civil Judge -II, Quetta, at the time of
entertaining the suit and passing injunction order on 5th April, 2010, absolutely failed to
carefully examine and analyze the material on record and before issuing interim injunction
order, also failed to consider the relevant law on the subject i. e. sections 42 and 56(d) of the
Specific Relief Act as well as the Ordinance.
The learned Senior Civil Judge -II, Quetta also failed to appreciate that the orders
issued by the official respondents with regard to illegal boring were wrongly
assailed/challe nged in a civil suit by respondent No.5 instead of resorting to the appellate or
the revisional forum under the Ordinance.
A Judge is under duty to decide the matter justly and by applying correct law. The
courts while dispensing justice are duty bound to apply the provisions of law in their true
prospective and application of the same cannot be avoided simply on the ground that
the said provisions of law were not brought to their knowledge by the parties, as a Judge is
supposed to wear all laws of the country on the sleeves of his robe.
Hence, in the above circumstances, we have no hesitation to hold that the suit filed by
the respondent No.5 before the court of Senior Civil Judge -II, Quetta for declaration and
injunction challenging the orders passed by official respondents is not maintainable and
respondent No.5 should have approached the forums available under the Ordinance. The
respondent No.5/plaintiff has no lawful right or entitlement to carry out boring work without
getting permission fr om the District Water Committee Under section 4(c) of the Ordinance
and that too on an unsettled/Baroon -uz-Line land.
There is no cavil to the proposition that under Order VII, Rule 11, C.P.C., as
soon as the cause appears for rejection, the plai nt should be rejected straightaway and such a
suit should be taken off the file at its very inception to relieve a defendant of vexatious
litigation. A plaint can be rejected at any stage and even by the appellate court or a revisional
court and even witho ut any application being made by the defendant. In the instant case,
already an application was submitted by the petitioner under Order VII, Rule 11, C.P.C.
before the trial court which so far has not been decided by the trial court resulting into the
present affairs.
It is to be appreciated that, High Court has been conferred with a supervisory
jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, which is
essentially both discretionary and equitable and has to be exercised to aid and to subserve the
cause of justice and surely not to defeat it. The writ jurisdiction of a High Court is meant to
correct an error of law, resulting from excess or lack of jurisdiction. It is further to be
noticed that the courts , vested with powers to administer justice, undisputedly a sacred
trust, are obliged by compulsion of law to carefully examine and analyze the material
placed before them before arriving at any decision or passing any order.
9. Hence fo r the above reasons, the constitutional petition is allowed, the plaint of the
suit filed by respondent No.5 pending before the court of Senior Civil Judge -II, Quetta is
rejected under Order VII, Rule 11, C.P.C. and all the interim injunction orders passed by
learned Senior Civil Judge -II, Quetta as well as Additional District Judge -III, Quetta in
favour of the respondent No.5 are set aside and the matter is referred to Water Committee of
District Quetta to initiate proceeding under Balochistan Ground Water Rights Administration
Ordinance, 1978 against the respondent No.5 in view of the application filed by the
petitioners and to pass appropriate order in accordance with law after hearing the petitioners
as well as respondent No.5 within two months of receip t of this judgment. Till decision by
the Water Committee of District Quetta, the respondent No.5 shall not start any boring work
to excavate the ground water.
S.A.K./14/Q Petition accepteThis 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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