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Official Citation: 2024 ILR 187
Court / Jurisdiction: Islamabad High Court
Parties: Ibrar Hussain vs Additional Deputy Commissioner etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 ILR 187. In this matter between Ibrar Hussain and Additional Deputy Commissioner etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Mohsin Akhtar Kayani) AUTHOR JUDGE: Honourable Mr. Justice Mohsin Akhtar Kayani DECISION DATE: 19-MAR-2024 CASE NO: Writ Petition-1670-2022 CITATION: 2024 ILR 187 PARTIES: Ibrar Hussain VS Additional Deputy Commissioner etc LAW / SECTION: under Article 199 of the Constitution of Pakistan |under Section 7 of the Easements Act, 1882 SUBJECT: Environmental Law, REMARKS: A contractor has been trying to renew a license for supplying water through tube well to different areas of Islamabad. Previous writ was dismissed. Now CDA has communicated that with no law over the subject, these can be no license nor any restriction. Petitioner states that illegal extraction of water needs to stopped, seeks restriction ============================================================ Form No: HCJD/C-121 JUDGMENT SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD (JUDICIAL DEPARTMENT)
W.P. No.1670 of 2022
Ibrar Hussain
Versus
Additional Deputy Commissioner (General), Islamabad, etc.
W.P. No.4044 of 2021
Asim Shahzad Malik
Versus
Metropolitan Corporation Islamabad, etc.
W.P. No.75 of 2022
Khawaja Manzoor Ahmed Lone
Versus
Capital Development Authority, etc.
Petitioners by : Mr. Nasir Ahmed Abbasi, Advocate in W.P.No.1670 of 2022. Mr. Muhammad Asif, Advocate in W.P.No.4044 of 2021. Barrister Sajjad Ahmed, Advocate in W.P.No.75 of 2022.
Respondent by
Assisted by :
: Syed Qamar Hussain Sabzwari, Advocate for respondent No.3 in W.P.No.1670 of 2022. M/s. Qaiser Imam Ch & Ali Raza Rao, Advocates in W.P.No.4044 of 2021. M/s Khurram Mehmood Qureshi, Tania Bazai and Khalid Mehmood Khan, Advocates in their respective petitions. Ms. Saadia Shehzadi, State Counsel. Hafiz Muhammad Atif Khokhar, Advocate MCI. Mr. Usman Rasool Ghumman, A.A.G. Rana Waqas Anwar, Administrator, MCI.
Ms. Aymen Azeem, Law Clerk.
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W.P. Nos.1670/2022, 4044/2021 & 75/2022
MOHSIN AKHTAR KAYANI, J. - By way of this judgment, I intend to decide the instant writ petition along with W.P.No.4044/2021 and W.P.No.75/2022 having common questions of law and facts.
2. In W.P.No.1670 of 2022, the petitioner namely, Ibrar Hussain has assailed the action/opinion rendered by respondent No.2/District Attorney, Islamabad on the application for de -sealing of tube wells submitted by respondent No.3/Sikandar Hayat.
3. Learned counsel for the petitioner in this case contends that respo ndent No.2/District Attorney has taken a contrary view against the orders passed by this Court on 08.03.2021 in W.P.No.907 of 2021 and the order dated 17.03.2022, passed in I.C.A No.151 of 2021. He further contends that after the opinion rendered by respondent No.2, the Additional Deputy Commissioner (General), Islamabad has allowed all the tube well operators and water suppliers to continue their businesses without any regulatory regime under the law, though this Court in unequivocal terms has declared suc h activity illegal and against the law.
4. In W.P.No.4044 of 2021, the petitioner namely, Asim Shehzad Malik has made a request for issuance of direction to the respondents to decide the application moved by the petitioner for the provision of the license to operate and run the water supply business through the tube wells in the vicinity. He has also pointed out that this Court has passed an order, dated 23.04.2019 in W.P.No.561 of 2019 and
Date of Hearing
:
22-02-2024.
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 consequently, the District Administration sealed the tube well of the petitioner causing severe damage to the business of the petitioner and after gaining knowledge about the reasons for such sealing, the petitioner immediately moved an application for permission of the license or permission to continue with the busines s in the vicinity however, the application, dated 22.09.2021 moved before the Administrator MCI has not yet been decided by respondent No.1.
5. In W.P.No.75 of 2022, the petitioner namely, Khawaja Manzoor Ahmed Lone who is resident of Union council Kora l, Islamabad and claims that there is a huge shortage of drinking safe water in the area and the government had built up few water hydrant few years ago and water storage tanks around the area in order to cater the water needs of the people. However, due t o corrupt, incompetent, inefficient, illegal acts and omission of the Government officials of concerned departments, the said facilities have been destroyed, inoperative, possessed, encroached and occupied by land Mafia and water tanker mafia. Resultantly , the petitioner and other people are forced to buy the water tanker from the respondent contractor and tanker supply business holders who are charging heavy amount against the supply of water, which was extracted from the State land being an underground w ater, therefore, he prayed for issuance of direction to the respondent/government to provide sustainable safe drinking water as per WHO standards to the petitioners and the inhabitants of Koral, Islamabad for which funds be released for establishment of pr oper schemes and old water schemes and tankers and hydrants be repaired with further request that the
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 private water tanker business holders and water supply/tube wells be regulated through by observing the standard of safe water including the price of the supply of the water and all such business be regulated through licensing regime.
6. Conversely, CDA authorities have taken different stances in their reply in terms of the Capital Development Authority Ordinance, 1960 within the parameter of Section s 11 & 12 of the Capital Development Authority Ordinance, 1960 with reference to Master Plan and Master program including the preparation of schemes by the local bodies or agencies, which includes the utilization of water, power and other natural resources . It has also been highlighted by the learned counsel for the CDA that in the private housing schemes the concerned society company is responsible to establish such a water supply, scheme or primary sewerage treatment system to be developed by sponsors at their own cost and expense in terms of ICT (Zoning) Regulation, 1992. The CDA authorities have also taken the stance that no NOC or license has been issued by CDA regarding water supply to any company, association or person in Islamabad and they have taken action against illegal tube wells/water supply companies, individuals pursuant to the direction of this Court in judgment, dated 23.04.2019 passed in W.P.No.561 of 2019.
7. On the other hand the Administrator, MCI claims that ICT had installed water supply scheme for village Koral through the Local Government and Rural Development Department, ICT and millions of rupees has been spent by the Local Government Department, even
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 the department in lieu of the pending dues of IESCO bill has established water user committee on the demand of Secretary, Union Council Koral, who is the custodian of water supply scheme and all the water supply schemes have been run by the user committee in the local government setup. However, tankers have not been regulated by ICT administration and at present no law exists to regulate the private tube wells/hydrants. It has specifically been claimed by the administrator that union council is independent entity and individuals business/profession of private water source has to be regulated by the Union Council/MCI under Local Government Act, 2015 vide Ninth Schedule Section 122 Subsection 64 (h) and 70 but no such permission or NOC has been granted to private water hydrant in this regard.
8. On the other hand the private resp ondents who are running the water supply business claim that their hydrants and water supply scheme was sealed by the ICT administration on the basis of NOC despite that no NOC is required for tube wells and it has been acknowledged that there are number o f tube wells operating in the ICT including the private housing schemes/societies in which water has been supplied on commercial basis and no one has a license/permission or NOC under any law to operate such business, therefore, the MCI, CDA and District A dministration has no authority to seal any water supply business in any manner.
9. Learned Assistant Attorney General as well as the learned State Counsel have also explained the legal position on the issue of water scarcity even different applicants an d all the counsels have
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 been heard representing the respondents or different individuals who intend to implead in these cases. 10. Arguments heard, record perused. 11. The issue highlighted in these petitions is of a public importance. On minute scanning of the background of this case, which resulted into filing of these petitions as well as earlier round it appears that there is three basic fundamental questions, which are as under:- i. whether underground water in the territory of Pakistan or e specially within the Islamabad Capital Territory is a State property? ii. Whether any individual can run any water hydrant tube well on commercial basis and charge any amount for supply of water through tanker or through any other source or channel and su ch business activity is permissible? iii. Whether any law in ICT is available to cater the water supply business through licensing regime, which require the license, NOC or permission under any law?
12. In order to answer these questions, I have a ttended the Capital Development Authority Ordinance, 1960, which has been promulgated with the objective, Firstly, planning and development of Capital (Islamabad) and secondly, compelling or authorizing Capital Development Authority to perform functions of a Municipal Committee, inter alia, to promote different sections of society
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 including taxpayers, therefore, CDA authority has been constituted in terms of Section 4 of the Capital Development Authority Ordinance, 1960 whose management has been vested to a Board, which may exercise all powers and do all acts and things including but not limited to the development, town planning and housing and shall be guided on questions of policy by such directions as the Federal Government may from time to time give in t erms of Section 5 of the Ordinance of 1960. The duties of the Chairman have been explained in the law. The primary parameter has been set out in Chapter II, which deals with the powers and duties of the authority, whereby in terms of Section 11 of the Ordi nance of 1960 the authority shall prepare the master -plan and a phased master programme for the development of the Capital Site, and may prepare a similar plan and programme for the rest of the Specified Areas, and all such plans and programmes shall be su bmitted to the Federal Government for approval. In terms of Section 12 of the Ordinance of 1960 preparation of schemes by local bodies or agencies have been explained, which are the key subjects provided in subsection (2) of Section 12, which are as under:- (a) Land use, zoning and land reservation. (b) Public buildings. (c) Industry. (d) Transportation and communications, highway, roads, streets, railways, aerodromes. (e) Telecommunication, including wireless, television, radio, telephone.
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 (f) Utilization of water, power and other natural resources. (g) Community planning, housing, slum clearance, amelioration. (h) Community facilities including water supply, sewerage, drainage, sewage, disposal, electricity supply, gas supply and other public utilities (I) preservation of objects or places of historical or scientific interest or natural beauty.
13. Therefore, in the light of above subjects of authority of the CDA, everything requires to be operated subject to approval of the CDA Board, therefore, legislature has inducted subsection (5) of Section 12, which has been couched with the term „no planning or development scheme shall be prepared by any person or by any local body or agency except with the concurrence of the Authority‟. Such aspect clearly establishes and acknowledges the jurisdiction of CDA in all the matters within the ICT. Therefore, CDA was further allowed to prepare the scheme pursuant to master -programme when it considers it desirable to do so in the public interest. Similarly, Section 15 of the Ordinance of 1960 extends the municipal functions to the CDA. The execution of schemes has a lso been acknowledged in CDA Ordinance, 1960. In order to establish the Islamabad as Capital Territory the CDA has been equipped with powers of acquisition in terms of Section 22, 24 & 25 of the CDA Ordinance, 1960 through a proper procedure in terms of in quiry and award through Deputy Commissioner and compensation should also be awarded in terms of
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 the procedure and yardstick provided in Section 30 of the Ordinance, 1960 to consider the determining factors of compensation.
14. In changing times the Islam abad Capital Territory Local Government Act, 2015 has been notified in order to establish an elected local government system to cater political, administrative and financial responsibility in order to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level, therefore, the functions of CDA have been curtailed only to the extent of Sections 11 & 12 of Planning and Development of Master Phase Programme in terms of Sections 11, 12 & 13 of the Ordinance, 1960. Whereas, all municipal functions have been vested to the Local Governments as referred in Section 3 of the Islamabad Capital Territory Local Government Act, 2015. The Union Councils as well as Municipal Corporation Islamabad‟s jurisdiction and powers have been explained in this law in terms of Sections 70, 71, 72, 73, 74 & 75 in detailed manner. The functions of Union Council as well as MCI have been provided in detail in the Second and Third Schedule of the law. In particular the Second Schedule prepared in terms of Section 71 acknowledges the following clauses (d) and (e):- (d) maintain rural water supply schemes and public sources of drinking water, including wells, water pumps, tanks, ponds and other works for the supply of water and open drains; (e) coordinate with the community organizations for proper maintenance of rural water supply schemes and sewerage in the prescribed manner;
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W.P. Nos.1670/2022, 4044/2021 & 75/2022
15. Similarly, third schedule, which deals with the functions of Metropolitan Corporation, acknowledges the following concept relating to the water supply under clauses (d), (k), (t) & (x):- (d) develop integrated system of water reservoirs, water sources, treatment plants, drainage, liquid and solid waste disposal, sanitation and other municipal services; (k) provide, manage, operate, maintain and improve the municipal infrastructure and services, including – (i) water supply and control and development of water sources; (t) collect approved taxes, fees, rates, rents, tolls, charges, fines and penalties; (x) develop and manage schemes;
16. In the Fourth Schedule, which deals with the Local Government Taxation, Union Council can levy certain taxes in terms of Section 88 of the Act, 2015 whereby the Fourth Schedule acknowledges the following:-
Part-I Taxes and other levies by Union Councils (4) Rate for the execution or maintenance of any work of public utility like lighting of public places, drainage, conservancy and water supply operated by union council. (5) Community tax for the construction of public work of general utility for the inhabitants of the union. (6) Fee for licensing of professions and vocations as prescribed. (7) Any other tax or levy authorized by the Government. Part-II
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 Taxes and other levies by Metropolitan Corporation (1) Water rate. (3) Conservancy rate. (6) Fee for licenses, sanctions and permits. (16) Water conservancy charge from the owner or occupier of a house or any other building, except an educational institution having a swimming pool with a minimum surface area of 250 square feet.
17. The Ninth Schedule in terms of Section 121 of the Act, 2015, deals with the powers of Local Governments. At serial No.69 and 70 highlight the concept of water supply and private source of water supply functions in the following manner:- 69. Water supply .- (1) A local government shall provide or cause to be provided to its local area a supply of wholesome water sufficient for public and private purposes. (2) Where a piped water supply is provided, the local government shall supply water to private and public premises in such manner and on payment of such charges as the bye-laws may provide. 70. Private source of water supply. - (1) All private sources of water supply within the local area of the local government shall be subject to control, regulation and inspection by the local government. (2) No new well, water-pump or any other source of water for drinking purposes, shall be dug, constructed or provided except with the sanction of the local government. (3) A local government may, by notice, require the owner or any person having the control of any private source of water supply used for drinking purposes –
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 (a) to keep the same in good order and to clean it from time to time of silt, refuse and decaying matter; (b) to protect the same from contamination in such manner as the local government directs; and (c) if the water therein is proved to the satisfaction of t he local government to be unfit for drinking purposes, to take such measures as may be specified in the notice to prevent the use of such water for drinking purposes.
18. While going through this entire detailed structure provided in the Local Government there is no cavil that water is a basic source of life and every living being requires the same, therefore, it has its own importance, therefore, the same has to be seen under the constitutional framework where Article 155 of the Constitution of Pakistan, 1973 empowers Council of Common Interests to deal with the matter of water supplies and in case of any issue relating to the natural source of supply or reservoir have been or are likely to be affected prejudicially among the province of the Federal Capit al or Federally Administered Tribal Areas in respect to use and distribution of control over water from that source a complaint in writing be entertained by the Council, therefore, Article 155 read with Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law confirms that such an important element of life is to be treated as property of the State. In the larger scope I have attended the WAPDA Act, 1958, which provides a comprehensive plan for th e development
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 and utilization of the water and power sources of Pakistan on a unified and multipurpose basis and schemes have to be provided for irrigation, water supply and drainage, recreational use of water resources, power generation in terms of Sectio n 8 of the WAPDA Act, 1958 and in terms of Section 11 of the WAPDA Act, 1958 WAPDA being an authority shall have the control over the underground water resources of any region in a province. Such aspect further strengthens the idea of ownership, which has been vested to the State and then to the Authority constituted under the law. This Court is mindful of the fact that Section 7 of the Easements Act, 1882 highlights the concept of right of every owner of land to collect and dispose of within his/her own li mits of all water under the land which does not pass in a defined channel, therefore, the concept of water rights have to be seen in terms of usufructurary right in terms of public interest doctrine. Despite several provincial and federal statutes and policy guidelines for water regulation across the country, still there is an ambiguity that how underground water shall be treated in Pakistan. Water is used as a commodity and not as a common source. The bottled waters and private commercial extraction of water can tear the towns apart. For State, protection of its public interest comes first and it is the duty of the state to protect its resources in public trust. Whether water is a property, this question seems very unsettled. Water is a public want, therefo re, its nature is quasi property.
19. The public trust doctrine, originating from ancient legal principles, empowers sovereign states to safeguard and preserve
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 natural resources. Dating back to ancient Rome, this doctrine regards flowing water, as to the air we breathe and the sea, as a shared resource. Resources that belong to public must be protected including water. (Kanner, Allan. “The Public Trust Doctrine” Duke Environmental Law & Policy Forum, vol. 16, iss. 1. Fall 2005 at 61 and 62). Under this doctrine the public interests come before private interests.
20. In terms of water, public trust authorizes the state to protect the navigable water. In 1970, Joseph Sax wrote an article on public trust, urged the Courts to protect the water from environmental toxins and privatization. Although, groundwater itself may not be classified as "navigable," it is frequently linked to navigable surface waters. Consequently, excessive pumping of an aquifer can result in a decline in the water levels of connected surface water bodies and alterations in water flow patterns. With the increased global population, the demand of water is increasing potentially. Underground water resources are limited and managing groundwater under a statewide commons and public trust framework is paramount.
21. Water is an essential resource upon which all life depends, navigable waterways, tidal areas, shorelines and stream beds cannot be held exclusively in private hands, but are impressed with the jus publicum, the public right. Water is to be treated as a public common trust, and must not be considered a commodity. Private companies and individuals consider their birthright to extract underground water via pumping and sell it commercially.
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W.P. Nos.1670/2022, 4044/2021 & 75/2022
22. The Public Trust Doctrine borrows its basic construct and some of its tenets (though not all) from the private trust law. Just like private trust latter it involves three elements: a trustee, a beneficiary and trust property. Here, the trust property consists of natural resources. The government is their trustee and must manage them subject to fiduciary duties for the benefit of both present and future generations who are the beneficiaries of the public trust. As in the private trust context, the trustee of the public trust must adhere to both substantive and procedural duties. The former includes: (i) the duty of protection; (ii) the duty against waste; (iii) the duty to maximize the value of trust resources; (iv) the duty to restore trust resources when damaged; and (v) th e duty against privatizing trust resources. On the other hand, procedural duties are: (i) the duty of loyalty; (ii) the duty to supervise agents; (iii) the duty of good faith and reasonable care; (iv) the duty of precaution; and (v) the duty to furnish information to beneficiaries. 23. The international environmental law recognizes public trust doctrine. Reference may be made to Principles 2 and 3 of the Stockholm Declaration, 1972 which read as under: Principle 2 The natural resources of the earth, includ ing the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. Principle 3
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W.P. Nos.1670/2022, 4044/2021 & 75/2022 The capacity of the earth to produce vital renewable resources must be maintained and, whenever practicable, restored or improved. 24. In several states of USA water is treated as State Authority. For…
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