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Official Citation: 2017 SCMR 732
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2017
Decision Date: 2017-03-16
Parties: SHAHAB USTO vs GOVERNMENT OF SINDH through Chief Secretary and others
This judicial decision was delivered by the Supreme Court of Pakistan on 2017-03-16. The matter involves proceedings between SHAHAB USTO and GOVERNMENT OF SINDH through Chief Secretary and others, officially reported as 2017 SCMR 732. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2017 SCMR 732
Court Name: Supreme Court of Pakistan Judge(s): Amir Hani Muslim, Qazi Faez Isa, Faisal Arab Title: SHAHAB USTO vs GOVERNMENT OF SINDH through Chief Secretary and others Case No.: Constitution Petition No, 38 of 2016 Date of Judgment:2017-03-16 Reported As: 2017 SCMR 732 Result: Order accordingly
JUDGMENT
JUDGMENT AMIR HANI MUSLIM, J.---This Petition is filed by a practicing lawyer praying for the following reliefs:- i. Take a serious notice of this issue of public importance involving the denial of fundamental right of the people of Shikarpur and other parts of Sindh to have a clean drinking water, sanitation and a safe environment, which indeed are also the issues of national importance; ii. Declare that the Respondents have violated the citizens' fundamental right to have clean water, which is subsumed in the rights to life, liberty, property, human dignity, information and equal protection of the law, as guaranteed under the Constitution of Pakistan; iii. Declare that the Respondents have violated the Doctrine of Public Trust which bind them to act as the fiduciaries of the people and commit them to providing the people of Shikarpur and other parts of Sindh with a clean drinking water, public sanitation and a hygienic environment so that they may lead a healthy, productive and dignified life as is pledged to them under Articles 4, 9, 14, 18, 24 and 25 of the Constitution of Pakistan; iv. Direct the Respondents to implement Sindh Environmental Protection Act, 2014, and other relevant rules, statues and Constitutional provisions in order to protect, conserve, rehabilitate and improve the environment which includes clean water, for the prevention and control of pollution, and promotion of sustainable development;. v. Direct the Respondents to refrain from further such violations of the Doctrine of Public Trust and Fundamental Rights of the people, as guaranteed under the Constitution; vi. Direct the Respondents to ensure, prevention of further contamination of underground water/public water supply in Shikarpur and other cities of the province by immediately taking necessary measures, which include discharge of effluent/sewage into environmentally safe outlets, remove underground septic tanks and other sources of the contamination of aquifer, ensure efficient sewage and solid-waste disposal systems, and treat effluent before draining it into irrigation conduits; vii. Direct the Respondents to immediately appropriate all available funds towards the provision of clean water, sanitation, disposal of solid-waste material and treatment of effluent in Shikarpur and other parts of the province; viii.Direct the Respondents to immediately begin a systematic repair of all the broken sewage and sanitation systems, treatment plants, reverse osmosis plants, pumping stations and discharge-outlets in Shikarpur and other parts of the province; ix. Direct the Sindh Environmental Protection Agency, to perform its assigned statutory duties without fail including regular monitoring, water-testing, environmental assessment and publication of annual reports on its Website; x. Direct the Sindh Environmental Protection Agency to submit a copy of its Annual Report to Registrar of this Hon'ble Court at least for a period of five years so that this Hon'ble Court may take appropriate action in case a lapse, violation or default is committed by the SEPA or the Respondent Authorities; and so that citizens may be able to knock on the door of this Hon'ble Court against the Respondents; xi. Institute a three-member Commission headed by an Hon'ble sitting or retired Judge of High Court to conduct in-depth probe into the Respondent Authorities' failures to provide the people of Shikarpur and other parts of the province with a
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clean drinking water, sanitation and healthy environment, and to fix responsibilities on the errant/culpable persons/authorities; the commission may also recommend short-term and long-term measures to enhance efficiency, transparency and accountability in these vital public service utilities that are represented by Respondents Nos. 2, 3, 4, 5, 6 and 7; xii.Retain jurisdiction over this action to monitor and enforce the Respondents' compliance with all associated orders of this apex Court; xiii.Grant any other just or equitable relief(s) held appropriate as being fit and proper by this Hon'ble apex Court. xiv.Cost." 2. On 21.12.2016, this Court had passed following order:- The Petitioner is a practicing lawyer, permanent resident of District Shikarpur. He claims that the Sindh Government has created Respondent No, 2 somewhere in 2009-10, which was required to deliver sustainable water supply, sewerage and solid waste services in a safe, efficient and effective manner in 8 districts of upper Sindh namely Sukkur, New Sukkur, Rohri, Khairpur, Larkana, Shikarpur, Jacobabad and Ghotki. He further contends that this Organization i,e, Respondent No, 2 was created by obtaining loan of 500 million dollars from Asian Development Bank, which has not benefited the public at large of the said districts, instead the sub soil water was further contaminated. He submits that Government of Sindh has failed to provide drinking water to the public at large of the upper Sindh and lower Sindh instead the sub soil water; which the locals of these districts have to consume, is contaminated and not fit for human consumption. The issue raised is question of public importance, which has direct nexus with the fundamental rights of the residents of Sindh living not only in 8 districts but also who are living in the lower Sindh. According to the Petitioner, the issues involved inter alia relate to violation of fundamental rights of the people of Shikarpur and Sindh, violation of the doctrine of public trust, degradation of environment, conserving the underground water/aquifer, supplying clean water to the citizens, providing an efficient sanitation and solid waste material disposal management to the people of Shikarpur and other parts of Sindh, protection of public life and atmosphere from the irreversible effects of contamination of underground water and fixing responsibility on the lapse or failure of discharging statutory and constitutional duties and functions to provide citizens of their fundamental right to receive water and to live in a healthy environment. 2. Issue notices to the Respondents as well as to the Advocate General, Sindh, to file their detailed concise statements. The Managing Director of Respondent No, 2, the Secretary Local Government and the Chief Secretary, Sindh, shall be in attendance on the next date with their replies as the issues raised have direct bearing on the health of hundreds of thousands of citizens of Sindh. To come up on 27.12.2016." 3. The matter was fixed on 27.12.2016 when this Court after hearing the Advocate General, Sindh, and the high ups of the Government, directed for constitution of Commission for probing into the allegations made in the Petition. The substantial portion of the order dated 27.12.2016 is reproduced hereunder:- "2. The Petitioner has prayed for constituting a Commission to probe into the allegations made in his Petition. The Chief Secretary alongwith the Advocate General Sindh has no reservation to this request. In these circumstances looking at the nature of controversy raised in these proceedings, we are satisfied that a Commission needs to be appointed to probe into the allegations pleaded in the Petition and after proper enquiry report to this Court. 3. This Commission shall record its findings in regard to providing/supply of clean water to the residents of Sindh besides the deteriorating condition of sanitation in Sindh. The Commission shall also examine the statutory role played by the Sindh Environmental Protection Agency on the issues mandated by the Sindh Environmental Protection Act, 2014. The Commission shall examine the officials or material from relevant agencies/organizations inclusive of all the Civic and land owning agencies. The Federal Government, Sindh Government or any Organization, under their control, shall co- operate with the proposed Commission. 4.We, therefore, request the Chief Justice, High Court of Sindh, Karachi, to nominate a serving Judge, as Commission for the aforesaid purpose, in terms of the Order XXXII of the Supreme Court Rules, 1980. The Commission shall hold enquiry on the aforesaid issues and record its findings in detail in the proposed report within six weeks from the date of its notification. He shall hold the enquiry on day to day basis. As a Commission it shall exercise all the powers of a High Court Judge inclusive of the powers conferred under C.P.C. 5. The office shall send one set of the files to the Registrar, High Court of Sindh, with the order to be placed before the Hon'ble Chief Justice, High Court of Sindh. We expect that the Commission shall be notified within a week from today." 4. Pursuant to the request incorporated in the order dated 27.12.2016, Mr. Justice Muhammad Iqbal Kalhoro was appointed as Commission, who after holding inquiry and examining the material submitted a comprehensive report comprising of 129 pages to the exclusion of photographs and two volumes of supporting documents/annexures, which were taken on record on 06.03.2017. We have perused the report of the Commission, its conclusion and recommendations. The conclusion and the recommendations made in the report are reproduced hereunder:- "CONCLUSION 1. From the perusal of above discussed facts, reports, statements, and from examination of the officials and people concerned, it has now been established that, we the people of Sindh, are not drinking clean water. The Indus River, its tributaries and channels, which are the source of drinkable water, have become polluted due to constant inflow of untreated municipal and industrial effluent right from Guddu Barrage to Kotri Barrage. Relevant departments/agencies or
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for that matter Sindh Government are cognizant of this water pollution, which is evident from various statements filed by them during the enquiry, but they are not taking any substantial steps to stop the water pollution by either treating the effluent through Treatment Plants etc. before discharging it in watery bodies or by diverting the inflow of effluent to SCRAP drains etc. We do have filtration plants installed in several cities of Sindh to provide us potable water after treatment, but due to inefficiency, lack of interest and corrupt practices of officials of agencies/departments operating these filter plants, they have been rendered almost redundant. The Clarifiers, Sedimentation Tanks, Chlorinators, Lagoons, etc. at the filter plants are out of order for the last many years. These filtrations plants are at the most being used as pumping stations for pumping water to their respective areas of delivery. Water purification that is to remove contaminants, suspended solids and gases from the water to make it consumable for humans is not taking place at any of the filter plants all over Sindh. The process of water testing, which is the integral part of water treatment as it ensures fitness of water to be potable is not being adopted either at any filter plants/R. 0. Plants. The tabs, which are available at some of the filter plants, are merely an eye-wash, as no test to determine physical, chemical and microbiological parameters is being conducted at any of such laboratories. Simply, without any sense of responsibility or any remorse, the raw water full of bacteria is being supplied to the people for drinking. It is therefore no wonder to see that due to use of contaminated water for drinking, many diseases like hepatitis, liver cancer, anemia, stunted growth among children, etc. are on rise in Sindh. The Treatment Plants in Karachi have been lying nonfunctional for a long time and one of them i,e, STIP-II has been encroached upon, yet no rehabilitation work by KW&SB has been undertaken to make them functional, and due to such apathy the untreated effluent is going into sea causing heavy damage to marine life. 3. During the enquiry all the departments concerned whose duty is to protect the sweet water. of irrigation channels from fall of effluent were found sleeping over such state of affairs. In major cities like Karachi and Hyderabad water shortage has multiplied due to illegal water hydrants, water theft, and illegal connections and because of construction of the high- rise buildings without expanding civic infrastructure. However, Sindh Government does not seem to have a thought-out- plan, or a strong will or any interest to alter such moribund situation by making some changes in water policy i,e, to monitor strictly quality of water being supplied to the people and to protect watery bodies from constant inflow of effluent, and take stern action against those who do not follow it. The case of R.O. Plants in Sindh is sufficient to reflect with what strategy, approach and intention the Sindh Government is pursuing policy" of provision of potable water in Sindh. It has paid billions of rupees to the contractor (Pak Oasis) in the last four/five years without even bothering to know quality and quantity of water being supplied by Pak Oasis against which all such payments have been made. It cannot simply be assumed that the department concerned (Special Initiative Department, Sindh Coal Authority and KW&SB) are not aware of this state of affairs and/or the way this whole deceit of providing drinkable water as per WHO standards from the R.O. Plants is being played. Rather the manner in which the payments by these departments have been made blindly in the past to Pak Oasis points out to their active connivance in the whole scheme. 5. Except in Karachi and Hydrated, the water supply schemes are built/developed by PHED, but after completion the whole infrastructure is handed over to local municipal administrations for operation and maintenance, which do not have structural capacity to do the same, resultantly the schemes_ fail to deliver, and the people are left with almost no water to drink. 6. Even the polluted water, being supplied to the people for drinking, is gradually getting scarce thanks to leakages in main transmission routes; water theft and lack of a system to monitor it; poor performance of outdated and inefficient pumping stations; water tanker mafia and illegal hydrants; mushroom growth of vertical buildings; old and rusted distribution system of water supply and inefficiency of officials of civic agencies and deliberate mismanagement in water distribution. 7. In many cities like Shikarpur and Larkana, the people are using underground water, the quality whereof has degraded due to lack of sanitation (caused, inter alia, by encroachment on sub-drains), use of pesticide in agriculture and constant inflow of effluent in irrigation canals. However, there is no initiative on the part of the Government to build filter plants in such areas to provide purified water and increase capacity of water supply. 8. The sanitation to keep us safe and healthy is notably absent because it seems to be the lost priority of Sindh Government. In some posh areas of the big cites, some semblance of sanitation is being maintained but that is done against heavy cost and taxes, the situation of sanitation, however, in rest of the localities of the big cites is as deplorable as it is in relatively small cities of Sindh, where sewerage, garbage, puddles and dirt seem to be permanent feature of the roads and streets. The sub-drains to take wastewater out of the city have been encroached, the gutters have been choked and some of the drains have been made dumping sites for disposal of solid waste. Despite spending huge amount, we have not been able to establish and run even a single modern drainage system having disposal of sewerage of the City through routes/channels culminating in Sim-Nalas, Treatment Plants, etc. 9. The present state of lifting of solid waste in Sindh is likewise lamentable; no adequate arrangement for lifting of solid is visible, the Cities have been turned into heaps of garbage. In Karachi, millions and millions of rupees have been spent by the DMCs in the name of garbage lifting but without any tangible result. There is no designated landfill site in any of the cities where the garbage could be disposed of. Presently, the garbage is dumped on drain alas, irrigation canals or is being thrown on some makeshift places and left unattended or burnt openly.
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10. R.O. Plants: The way these R.O. Plants are shown to be working and producing drinkable water as per WHO standards is nothing but a farce. Pak Oasis seems to be earning millions of rupees through these R.O. Plants, which do not produce good quality water for drinking. So far billions of rupees, as is shown in this document above, have been wasted in the name of these R.O. Plants without any justification for these Plants in some cases to even exist. Neither the quality of water through labs nor its quantity through any metering system is being analyzed at any of the R.O. Plants, yet the payments are being made by Sindh Government. 11. The whole scheme from feasibility to awarding contract and making payments on operation and maintenance of the R.O. Plants from the very inception needs to be investigated, so that the responsibility on the officials concerned making payments blindly could be fixed, and punishment awarded. The Annual Audit Report submitted by Director General Audit Sindh in respect of the R.O. Plants shows that the process of installation of the R.O. Plants has not been up-to the mark and in the said process a loss of millions of rupees to the Government has been caused on account of acceptance of bid on a rate higher than stipulated in PC-I; misprocurement; non-verification of water Filtration Plants and solar generation systems by Engineers, irregular expenditure without inviting open tender; installation of R.O. Plants not according to specifications and on very high rates; irregular appointment of Project Directors; no conducting of Lab. tests of water. (The report of water samples taken from several R.O. Plants of district Tharparkar is available at page 100-102 of this document, which establishes unequivocally that the water being produced from the R.O. Plants does not meet the quality standards). 12. Unless a metering system to gauge the quantity of water and a Lab. to verify quality of water at each R.0 Plant is introduced/installed, purpose of R.O. Plants to provide drinkable water would not be achieved nor would there be any justification to spend such huge amount on their O&M. 13. SEPA: Sindh Environmental Protection Act, 2014 deals comprehensively with environmental issues, and is best suited for the current circumstances. SEPA has been. created as a regulatory and monitoring authority to enforce provisions of this Act and for this purpose SEPA has been vested with all the necessary powers, but SEPA'S performance so far is not enviable or commendable, it has yet to establish justification for its existence. The excuse cited by SEPA official that the authorities do not respond to their actions is simply untenable, and on the contrary reflects against it. The untreated industrial effluent is going into sea in Karachi, in Phulleli Wah in Hyderabad and in K.B. Feeder in Kotri, but the SEPA's initiative has not transcended beyond holding meetings with the management of industries and/or writing letters to them. SEPA has not played any role to check disposal of infectious hospital waste in municipal drainage system which ultimately goes into watery bodies. SEPA has also failed to ensure destruction of infectious hospitals waste through incinerator as provided by the Hospital Waste Management Rules, 2014. It has not taken note of environmental degradation in coastal areas of Karachi precipitated by industrial effluent. Instead of becoming a result-producing organization, it has so far remained content with writing routine letters and issuing notices. SEPA has not been able to even realize the mandate given to it by the law. It has failed to even exploit the resources available to it in the shape of latest equipment and laboratory. 14. However, it is not irrelevant to state that at present, the organizational structure of SEPA appears to be weak and is mostly concentrated in Karachi. If we wish to have good results on environmental issues and strict compliance of 2014 Act, SEPA shall have to be strengthened, and expanded down to the district level. 15. NSUSC: Looking to the condition of the cities with NSUSC and keeping in view the amount it has shown to have spent on these cites (which is subject to verification of each scheme) it is not difficult to conclude that NSUSC has materially failed to deliver on basic targets it was mandated for. It has failed so far to take any adequate measure to either supply clean drinking water or make proper arrangement for disposal of solid waste and wastewater in the cities coming under its operation. Pools of sewerage water were seen in the streets of the cities under NSUSC control. NSUSC has not been able so far to establish anywhere the dumping and landfill sites for management of solid waste. Solid waste collected is disposed of by dumping onto open spaces by the side of roads or is thrown on makeshift dumping sites, which creates more hazards for the people. NSUSC has failed so far to cause sewage treatment in any city; the entire wastewater without any kind of treatment is very conveniently being disposed of in watery bodies i,e, River Indus and its tributaries. NSUSC claims to have spent huge sums of money to improve service delivery in respect of water supply and sanitation but its claim is not supported by any tangible result. NSUSC was also not able to establish that before execution of any such schemes, the relevant drawings, design and engineering, estimates etc. along with financial impact on approved cost prepared and supplied were duly scrutinized, checked and approved. NSUSC has failed to comply with environmental policy for which it was mandated. Since there is no improved system of service delivery in the cities with NSUSC, it is safe to say that NSUSC has not succeeded to ensure performance of the relevant persons (consultants, contractors, etc.) in delivering the services. NSUSC has provided the details of expenditure but it has failed to show that payments on operational charges were recommended after complying with all necessary formalities including site inspection to verify specification of work. Managing Director NSUSC was entrusted with Intermediate Payment Certificates for payments to the contractors, but NSUSC officials were not able to show that payments through Intermediate Payment Certificates were as per rules and any audit or verification of the executed work was done before making payments in this way to the consultant and contractors. 16.These facts coupled with the condition of cities under the operation of NSUSC (described below in this document) reveal that NSUSC has mismanaged finances entrusted to it. It has wasted public money for which it shall be held
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accountable. It has not been able to execute relevant projects yet, and has even failed to maintain the system of providing drinking water and sanitation which it inherited. NSUSC has been running with the staff of 3127 out of which 2994 were borrowed from relevant TMAs on 20% additional allowance in their salaries, but it failed to make them deliver. It has run into issues with borrowed staff of TMAs, and has been repatriating them, which has further compromised its ability to deliver. It has not been able to shape up as a competent, honest and service-provider organization. 17.There is, therefore, a need to review the over lapping functions of North Sindh Urban Service Corporation (NSUSC) with Town Municipal Administration (TMA) and Public Health Engineering Department (PHED), which under the law are assigned the duty of providing clean drinking water, maintaining sanitation and hygiene. 18. Responsibility of Government of Sindh: Nobody would deny that it is the constitutional duty of Government of Sindh to ensure provision of potable water, better sanitation and healthy and clean environment for its citizens. Water is life and access to unpolluted water is the fundamental right of every citizen. Under Sindh Local Government Act, 2013 (SLGA), the local Councils (Metropolitan Corporation, Municipal Corporation, Municipal Committee, Town Committee, District Council, Union Committee or Union Council) have been assigned the duty to supply clean drinking water, improve sanitation condition and place an adequate system of public drains. Part II of schedule II of the ibid law depicts how such duty has to be executed. However, the council has to perform such duty in collaboration with and under the…
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