P L D 2021 Balochistan 105
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
MUHAMMAD AJMAL and 3 others---Petitioners
Versus
PROVINCE OF BALOCHISTAN through Secretary Irrigations and others---
Respondents
C. P. No. 813 of 2019, decided on 29th December, 2020.
(a) Constitution of Pakistan ---
----Art. 18---Freedom of trade, business or profession---Cultivation of crops with sewage
water ---Scope ---Petitioners, being agriculturalists, assailed the act of respondents whereby
they had blocked the supply of black/grey water to an area of 1000 acres ---Validity ---Reports
prepared by the representatives of different departments showed that the petitioners were
using sewage water for cultivation of crops which contained household waste, hospital waste as we ll as waste material eliminated from food points and factories, etc ---Sewage water
cultivation was a point of grave concern ---Mixing of unpurified water with purified made the
entire water contaminated and carcinogenic ---Vegetables (leafy/non -leafy) fodder crops
irrigated by such contaminated, arsenic rich water absorbed the chemicals and metals from the water which became hazardous for human health, causing various fatal diseases ---Around
3000 acres of land was under cultivation with leafy crops by sewage water that was being
sold in the local market and was used for salad and foods ---High Court observed that only
treated water should be used for fruit and vegetable production---Cultivation of crops with
contaminated water was declared to be an unlawful bus iness and the respondents were
directed to ensure stoppage of such business.
Ms. Shehla Zia v. WAPDA PLD 1994 SC 693 rel.
(b) Constitution of Pakistan ---
----Art. 199---Constitutional jurisdiction ---Enforcement of Fundamental Rights ---Scope ---
Jurisdiction of High Court while exercising power under Art. 199 of the Constitution is
restricted to making an order directing a person performing within the territorial jurisdiction
of the Court, functions in connection with the affairs of the Federation, a province or a local
authority, to refrain from doing anything he is not permitted by law to do, or to do anything
he is required by law to do; or declaring that any act done or proceeding taken within the
territorial jurisdiction of the court by a person performing functions in connection with the
affairs of the Federation, a province or a local authority has been done or taken without
lawful authority and is of no legal effect ---However, when dealing with constitutional
petitions for the enforcement of fundamental rights, the jurisdiction of High Court is not
controlled by any limitation ---Such fact finds mentioned in clause (c) of sub- Article (1) of
Art. 199 of the Constitution.
(c) Constitution of Pakistan ---
----Art. 199(1)(c)---Constitutional jurisdiction ---Enforcement of Fundamental Rights ---
Scope ---High Court, in exercise of the constitutional jurisdiction for enforcement of
fundamental rights, has unlimited powers to issue appropriate directions to the functionaries
of the State for securing the fundamental rights or to avoid their violation--- Act which is
required to be done by the public functionaries by the Court under the clause (c) of Sub-Article (1) of Art.199 may not normally be allowed to be taken by them under specific law/rules or in normal circumsta nces, they may even be not permitted specifically to perform
such acts under the existing law or rules ---In pursuance of the direction given by the court
under said sub- clause (c), the person/authority/government so commanded by the High Court
shall be bound to perform the act so that the fundamental rights of citizens are enforced ---
Reasons behind granting such powers for issuing appropriate direction are that every other
law/rule/instruction have to yield to the fundamental rights enshrined in the Constit ution.
(d) Constitution of Pakistan ---
----Art. 18---Freedom of trade, business or profession---Scope ---Article 18 of the
Constitution declares in unequivocal terms freedom of occupation, trade and business but it
is equally true that such right is subject to qualifications, if any, as may be prescribed by law
and that the profession, occupation, trade or business in which a citizen is entitled to engage
must be a lawful profession, permitted by law or at least not forbidden by law ---Concept of
dangerous and offensive trades and civil defence is not that the candle should not be lit ---
Candle must be lit to remove darkness and make the things more productive but care must
also be taken not to let the candle burn everything around.
Humaira Munir and Shams -ud-Din for Petitioners.
Shahid Baloch, Additional Advocate General for Official Respondents.
Ali Ahmed Kakar and Muhammad Khalid Kakar for Respondent No.3.
Date of hearing: 14th December, 2020.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .---The instant constitutional petition,
filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") carries the following prayer clause:
"It is, therefore, in view of above submissions respectfully prayed that the following
directions may kindly be passed: -
A. Order for resumption of water to Nohsar channel may kindly be issued;
B. Provincial Government may kindly be directed to restore the major weir/diversion
structure constructed by the Irrigation Department across the Brew ery Manda;
C. Respondents be directed and instructed to take action within the ambit of Clause
IV of Para No. 4 of the order dated 27.01.2015 without disrupting the water of the channel;
D. Cost of the proceedings may also be awarded"
2. Petitioners, who are agriculturists and residents of Killi Nohsar, a suburb area of
Quetta City, are cultivating their crops with the black/grey water of Quetta city from the time of their forefathers and they were also permitted by this court while deciding Constitution Petition No. 280 of 2014 to cultivate their crops with the grey water after mixing it with
purified water @ 4/6 cusec, however, in clear violation of said directions, the respondents
have breached Nohsar channel at 9 points divesting an area of about 1000 acres and
depriving the petitioners and a number of agriculturists from their legal livelihood in
violation of Article 18 of the Constitution.
3. While exercising power under Article 199 of the Constitution, the jurisdiction of this
Court is restricted to making an order 'directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a province or a local authority, to refrain from doing anything he is not permitted by law to do, or to anything he is required by law to do; or declaring that any act done or proceeding taken
within the territorial jurisdiction of the court by a person performing functions in connection with the affairs of the Federation, a province or a local authorit y has been done or taken
without lawful authority and is of no legal effect. However, when dealing with constitutional petitions for the enforcement of fundamental rights, as in the case in hand, the jurisdiction of
this court is not controlled by any limi tation. Such fact finds mention in clause (c) of sub-
Article (1) of Article 199 of the Constitution, which reads as under: -
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Gove rnment exercising any power or
performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part. II
4. In exercise of the constitutional jurisdiction for enforcement of fundamental rights
this court has unlimited powers to issue appropriate directions to the functionaries of the State for securing the fundamental rights or to avoid their violation. The act which is required to be done by the public functionaries by the Court under the above clause may not normally be allowed to be taken by them under specific law/rules or in normal circumstances they may even be not permitted specifically to perform such acts under the e xisting law or
rules. But in pursuance of the direction given by the court under sub- clause (c) supra, the
person/ authority/government so, commanded by the High Court shall be bound to perform the act so that the fundamental rights of citizens are enforce d. The reasons behind granting
such powers for issuing appropriate direction is that every other laws/rules/instructions have to yield to the fundamental rights enshrined in the Constitution.
5. Similarly, the concern for protecting environment was first i nternationally recognized
when the declaration of United Nations Conference on the Human Environment was adopted
at the Stockholm on 16- 6-1972. Thereafter it had taken two decades to create awareness and
consensus among the countries when in 1992 Rio Decla ration was adopted. Pakistan is
signatory to this declaration and being a responsible member of the world community, the Federal and provincial Governments in order to protect, conserve, rehabilitate and improve the environment for the prevention and control of pollution and promotion of sustainable development as well as the other factors disturbing the ecology, bio diversity or the health of the citizens have promulgated a number of laws including Pakistan Environmental Protection Act, 1997, The Fisheries Act 1897, The Wild Birds and Animals Protection Act,1912, The
Cutting of Trees (Prohibition) Act, 1992, The Prohibition of Smoking and Protection of Non-Smokers Health Ordinance, The Forest Act, 1927, Balochistan Environmental Protection Act,2012, Pure Food Ordinance, 1960, The Balochistan Environmental Protection Agency and Balochistan Food Authority Act, 2014 etc.
6. Likewise, Article 9 of the Constitution provides that "No person shall be deprived of
life or liberty save in accordance with law". The word 'life' has to be given an extended
meaning and cannot be restricted to vegetative life or mere animal existence. Th e Hon'ble
Supreme Court while dealing with Article 9 in the well celebrated judgment "Ms. Shehla Zia
v. WAPDA" PLD 1994 SC 693 observed as under:
"The word "life" in the Constitution has not been used in a limited manner. A wide
meaning should be given to enable a man not only to sustain life but to enjoy it.
Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man
under Article 14 is unparallel ed and could be found only in few Constitutions of the
world. The Constitution guarantees dignity of man and also right to 'life' under Article
9 and if both are read together, question will, arise whether a person can be said to
have dignity of man if his right to life is below bare necessity like without proper
food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment."
7. This is public -related matter involving enforcement of fundamental rights and
considering the gravi ty of the matter which may involve and affect the life and health of the
citizens at large, notices were issued to the heads of respondents departments who appeared
and apprised us that there is no water treatment plant at Quetta and the petitioners are irrigating their vegetable crops with black water and sale the products in market which is
highly hazardous to human health.
8. We have heard the learned counsel for the parties, experts on the subject and also
perused the available record as well as minutes of the meeting dated 16.01.2015, whereby the
petitioners and other farmers were allowed to irrigate their crops by waste water after mixing 4 cusec purified water with 6 cusec black water.
9. The reports prepared by the representatives of different depart ments show that the
petitioners are using sewage water for cultivation of crops which comes from various sources
and contains household waste, hospital waste as well as waste material eliminated from food
points and factories etc. Many drainage lines conta ining this water merge together at various
points such as Hori Nallah at Samungli Road, Lohra Nallah at Masjid. Road, City Nallah at
Alamdar Road and Karksha Nallah at Hazara Town etc. Most of these Small Nallahs
combine together in Durrani Nallah which le ads to killi Nohsar. It is a matter of common
knowledge that the farmers of killi Nohar, Sariab, Spiny Road, P.A.F base and kuchlak were irrigating their fields while using the water of Karezat which have been dried up due to
shortage of rainfall and const ant downfall of underground water table. It is very unfortunate
that in order to meet water requirements of crops growing Nohsar, Sariab and Kuchlak,
natives of the area started using sewage water to irrigate their fields. The crops which are
cultivated in the region include coriander, cabbage, spinach, mint, cauliflower and other
leafy vegetables which are supplied in the market and consumed by the innocent people
living in Quetta and its suburbs.
10. We have gone through a number of studies carried out by the experts on the subject
and found that sewage water cultivation is a point of grave concern in Quetta and its suburbs.
We are afraid that in the aforesaid meeting held between the respondents and representatives
of farmers, it was agreed that purified water (4 cusec) and unpurified water (6 cusec) would
be mixed up and thereafter same would be utilized by the Agriculturalists for the non- leafy
crops. We are failed to understand the logic behind such permission, particularly when the
mixing of unpurified water with purified makes the entire water contaminated and
carcinogenic. The vegetables (leafy/ non leafy) fodder crops irrigated by such contaminated,
arsenic rich water absorbs the chemicals and metals from the water which become hazardous
for human he alth, causing various fatal diseases such as: Hepatitis A, Hepatitis E, Cholera,
Typhoid, Dysentery, Choler, Naegleriasis, Botulism, Cyclosporiasis, Acariasis, Amoebiasis,
Giardiasis, Leptospirosis, Cryptosporodiasis, Campylobacteriosis.
11. The use of such fodder crops by animals equally affects the animals' health and
hazards transmit further to the human beings by consumption of milk and meat.
12. It would also be pertinent to mention here that under the supervision of Dr. Sadullah,
Chairperson of Bot any Department, University of Balochistan, Quetta, a study regarding
usage of waste water was conducted and it was found: -
1) Sewage water is the richest source of micro and macronutrients this aims for the
better growth and productivity of plant (vegetab les, medicinal plants and higher
plants) however heavy metals contents (Cd, Cr, Cu, Ni and Pb) in vegetables and even
soil become very high which have harmful effects on human and animal health.
2) The environment of nearby wastewater storage/end removal areas were badly affected.
13. Similarly a study was conducted by the Department of Soil and Environment
Sciences, Khyber Pakhtunkhwa Agriculture University, Peshawar and it concluded: -
"The water of Warsak canal and Bara river containing excessive amounts of certain
heavy metals, should not be used for irrigation of those vegetables which are directly
consumed uncooked by human beings e.g. lettuce, cabbage, beets, coriander, radishes,
carrots, spinach and parsley etc. These sources of water should not be used for
drinking purpose of livestock as the heavy metals present in it may cause a number of
abnormalities in animals".
14. It is admitted feature of the case that around 3000 acres of land is under cultivation
with leaf crops by sewage water that is being sold in the local market of Quetta city and are used for salad and foods. These contaminated foods are the cause of many water diseases
including hepatitis and cancer. Sewage is not only hazardous in itself, but the use of acids in
homes and chemicals in factories make the water more dangerous. Waste water should not be
used for vegetable production because these chemicals are absorbed by the vegetables along
with the water, and this affects hea lth. Only treated water should be used for fruit and
vegetable production.
15. We are conscious of the fact that at present, approximately 3000 hectares of arable
land in quetta city and its suburb are reported to be irrigated with wastewater and unreporte d
use of wastewater in agriculture sector can be expected to be significantly higher. It is also
true that it provides lively hood to number of families and Article 18 of the Constitution
declares in unequivocal terms freedom of occupation, trade and business but it is equally true
that such right is subject to qualifications if any as may be prescribed by law and that the
profession, occupation, trade of business in which a citizen is entitled to engage must be a
lawful profession, permitted by law or at l east not forbidden by law. The concept of
dangerous and offensive trades and civil defence is not that the candle should not be lit. A candle must be lit to remove darkness and make the things more productive but care must
also be taken not to let the candle burn everything around.
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, t herefore, 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 where by the farmers were allowed to irrigate their field with waste water 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, De puty
Commissioner and provincial Police Officer are directed to extend ful 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 Commission, the Deputy Commissioner and the Director General, Balochistan Food Authority for compliance and further necessary
action.
The compliance reports regarding steps taken and measures adopted by the
respondents, the Director General Balochistan Food Authority shall submit its report to the
Registrar of this Court within three months for our perusal in the Chamber.
SA/38/Bal. 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,
let us know.