PLJ 2022 Lahore 819
[Rawalpindi Bench, Rawalpindi]
Present:
Sohail Nasir, J.
USMAN
GHANI--Petitioner.
versus
RAWALPINDI
METROPOLITAN and 7 others--Respondents
W.P. No.
2046 of 2022, heard on 23.7.2022.
Constitution of Pakistan, 1973--
----Art.
199--Development of Cities Act, (XIX of 1976), Ss. 28 & 32--Illegal business
of water hydrants--Non-obtaining of any permission for running business of
water--No effective mechanism for restricting illegal water hydrants--Mushroom
growth--Shortage of water--Role of electronic media--Shortage of water is a
serious challenge to Country, citizens must come forward to ensure sustainable
improvements in water services for every individual--Current water management
is basically pursued using a top down management approach, in which Government
and private sectors are in charge of holding control over water management and
citizens are hardly involved in or informed about design and planning of water
management--Directions of Honorable Supreme Court of Pakistan having force of
law were not taken seriously and no effective campaign was launched to educate
people by relevant segments of society or even electronic and print media--The
Director General PEMRA, with a positive gesture, maintains that moment on
behalf of District Administration, Rawalpindi in particular M.D WASA any
content is received, PEMRA shall immediately ask broadcasters to broadcast such
public service programmes and messages to educate
citizens on this sensitive issue--AAG has brought into notice of this Court,
that yesterday a long duration meeting was convened, and all stake holders
joined their heads where after sound proposals have been formulated with
timelines to regularize and bring persons involved in business of water
extraction under legal framework--As M.D WASA has already initiated actions
against private respondents, grievance of petitioners has been
redressed--Office is directed to send copies of this Judgment to Commissioner,
Deputy Commissioner, City Police Officer, M.D WASA, District Education Officer,
President Chamber of Commerce Rawalpindi and Chairman/D.G PEMRA, Islamabad for
information and strict compliance--Petition disposed of.
[Pp. 824, 825, 826,
829 & 831] A, B, C, D, E, F & G
Mr. Muhammad Ilyas
Siddiqi Advocate for Petitioner.
Mr. Razzaq
A Mirza Additional Advocate General and Sardar Tariq Anees
Assistant Advocate General for Respondents No. 2 to 4.
Mr. Rauf Ahmad Khan Niazi
Advocate for Respondent No. 1.
Raja Mohsin
Abbas Advocate for WASA.
Hafiz Mohsin
Ali Khizar, Law Officer for Commissioner
Rawalpindi Division.
Mr. Munawwar
Iqbal Douggal Advocate
for PEMRA.
Mr. Tahir Farooq Deputy
Commissioner Rawalpindi.
Mr. Muhammad Tanveer M.D, Mr. Aziz Ullah
Khan and Mr. Akmal Yaseen
Deputy Directors WASA.
Mr. Muhammad Tahir
D.G Operations Broadcast PEMRA.
Mr. Mohsin
Hameed Dogar, Director
Regulations PEMRA.
Malik Tahir Mehboob SP (CIA)
Rawalpindi.
Ms. Shazia Fazil DSP (Legal)
Rawalpindi.
Rana Amjad
Iqbal DEO Rawalpindi.
Date of Hearing: 23.07.2022.
Judgment
کہہ دو بھلا
دیکھو تو اگر
ہو جائے
تمہارا پانی
(جو تم پیتے ہو
اور برتتے ہو)
خشک تو
کون ہے (اللہ کہ
سوا) جو لے آئے
تمہارے لیے
پانی کا شفاف
چشمہ"
(If all your water were to sink deep into the earth who could
give you flowing water in its place?)
2. Kulsanofer Syed Thajudeen[2]
in her Article on the topic of ‘Verse About
the Water in Qur’an’[3]
says that she came across the above Verse in the Holy Qur’an that really made
her shudder. She further writes that:
“My mind was
reeling with the question why would Allah SWT ask that question? Can the earth
be drained of water? As my curiosity was piqued, I began to read and the more I
read, the more alarmed I became. Although 70% of earth’s
surface is covered by water and only less then 1% can
be consumed by all humans, animals and plants. More seriously, potable
water (water that can be consumed) in the form of rivers, is drying up in many
parts of the world exacerbated by prolonged drought. Day Zero, the day
water stops flowing from taps, nearly happened in Cape Town, South Africa in
2018. I realized then, the threat is real and God has warned us, it would be
foolish not to take heed.”
3. Water plays many important roles in
the body including flushing waste from the body, regulating body temperature,
transportation of nutrients and is necessary for digestion. It is the best
choice for hydrating the body and it is difficult to survive after a specified
period in case water is not provided to a human being.
4. Although the instant Writ Petition filed by Usman Ghani and 2 others (petitioners)
is with regard to illegal actions of Shah Jahan, Aman Ullah Khan and Arslan Khan/Respondents No. 5 to 7 (private respondents)
for fixation of hydrants, but finding an important question about illegal
business of water hydrants within the District Rawalpindi, the matter has been
taken up in purview of the public importance litigation.
5. According to the Censes of 2017, the population of
Rawalpindi District was as under:
1 |
Rawalpindi District |
5405633 |
2 |
Rawalpindi Tehsil |
3258547 |
3 |
Rawalpindi Metropolitan |
1142608 |
6. Currently, sources of water supply
to Metropolitan (excluding the Cantonment) are from Rawal
Dam, Khanpur Dam and Tube-Wells being controlled,
regulated and managed by Water and Sanitation Authority (WASA). Right now,
against the demand of 68 Million Gallons per Day (MGD) the supply is of 51 MGD
with a shortage of 17 MGD. Apparently WASA has no solution to cover the
shortfall between demand and supply.
7. In pursuance to an initial survey, as stated by M.D WASA, 84[4]
persons are running the business of water extraction but with no permission or
authority obtained from any of the Government Functionaries and they are
providing 2 to 3 MGD water which means that still Metropolitan is facing the
shortage of 14-15 MGD. From future perspective, the need of the Metropolitan
shall be 90 MGD because 318 Housing Societies are also at the stage of
development.
8. To meet this challenge ‘Chahan
Dam’ is expected to be operational in next three years. Initially its
objective was irrigating the lands of Chakri
and its surroundings, however later on, considering the request of WASA for
supply of 12 MGD approval has been made for 6 MGD. Another ‘Dhota
Dam’ has been said to be operational having no target time with expected supply
of 35 MGD. Therefore, real picture is that the growing difference between
supply and demand of water is alarming.
9. This fact has not been disputed
that private hydrants business has a mushroom growth and there is no effective
mechanism for restraining the said illegal activities most probably for the
reason that there is no proper legislation to bring it under any legal
framework, consequently making the mafia stronger and influential day by day.
This is also triggering the underground water level to go further down and the
residents of Rawalpindi Metropolitan are facing serious challenges for getting
water, which they are compelled to purchase from private hydrants on exorbitant
prices.
10. According to ‘The
Daily News’[5]
(26.06.2022) on the directions of Deputy Commissioner, Rawalpindi, an operation
was started against illegal water hydrants and confiscation of 15 motors was
made, but to my mind that exercise was just an eyewash because thereafter no
action whatsoever has been seen bringing the said business under some legal cover.
11. No doubt that water is the basic need for a human being,
but it does not mean that every person according to his desire at any place
without ascertaining the level of water and the side effects in case of
extraction can start the business. With the valuable assistance of all
concerned, the only legislation on this subject has been traced under ‘The
Development of Cities Act, 1976 (Act XIX of 1976)’. Its relevant provision
Section 28 reads as under:
“Fees on tubewells.--(1) The Authority shall have the
exclusive right to use ground water resources within the area.
(2) No person
shall, without the permission of the Authority install a tubewell,
for commercial purposes, at such places within the area, as may be notified in
the official Gazette by the Authority.
(3) The Authority
may levy rates on the persons or bodies who have
installed or may install tubewells for commercial
purposes, within its jurisdiction.”
12. Section 32 of the Act is a penal clause and is as follows:
“Penalty.--(1)
If a person contravenes any provision of this Act, or any rules or regulations
made under this Act, he shall, if no other penalty is provided for such
contravention, be liable to punishment with an imprisonment for a term which
may extend to one year or with fine which may extend to two hundred thousand
rupees or with both.
(2) The Magistrate
competent to try an offence under sub-section (1) may try the offence in a
summary manner in accordance with the provisions of sections 260 to 265 of the
code of Criminal Procedure, 1898 (V of 1898).”
13. The Deputy Commissioner and M.D WASA jointly concede that
till today no action whatsoever has been taken against any of the water
hydrants in terms of Sections 28 and 32 of the Act (ibid).
14. It was 2019, when ‘The Punjab Water Act (Act XXI of 2019)’
was enforced on 13.12.2019. Under Section 3 of the Act, Punjab Water Resources
Commission was directed to be established, not later than six months of the
commencement of the Act and the needful was done later on, but till today, as informed
by the Deputy Commissioner Rawalpindi, only one meeting has been convened of
the said Commission whose duty is on yearly basis to determine the allocation
of water for domestic, agricultural, industrial, ecological and other purpose.
The Commission has to formulate the policies, which are to be enforced by all
the agencies at District level.
15. Before adverting to the ultimate solution of the above
mentioned challenges, I would like to add here that no nation can come out from
national crises/challenges, unless their citizens do what is expected from them
in the national interest. As shortage of water is a serious challenge to the
Country, the citizens must come forward to ensure sustainable improvements in
water services for every individual. If not, a live example of Cape Town water
crises in South Africa[6]
is there affecting the city as the dam water levels had been declining since
2015, and peaked during the mid of 2017 to mid of 2018, when water levels
hovered between 15 to 30 percent of total dam capacity. The City, then,
introduced the idea of ‘Day Zero’[7]
to focus everyone’s attention on managing water consumption as tightly as
possible by cajoling water consumers into reducing usage.
16. The roles of Organizers of Social Services, Volunteers, Community
Groups and Chambers of Commerce are essential to educate people in this regard
because the behavioral problems and lack of awareness make the end users
undoubtedly most vulnerable. It is commonly said that the current water
management is basically pursued using a top down management approach, in which
the Government and the private sectors are in charge of holding the control
over the water management and the citizens are hardly involved in or informed
about the design and planning of the water management. The Honorable Supreme
Court of Pakistan also in Barrister Zafarullah
Khan’s case[8]
on the question of awareness campaign was pleased to observe as under:
“Finally, the
public should be educated in water issues and conservation techniques and
methods of efficient use of water through awareness campaigns. The verses from
the Holy Qur’an mentioned earlier in this opinion tell us to follow a balanced
way of life and refrain from excessive and extravagant use of earth’s
resources, particularly water. Abdullah Bin Amr
narrated that the Holy Prophet (PBUH) passed by Sa’d when he was performing ablution and is reported
to have said:
“What is this extravagance? Can there
be any extravagance in ablution? Yes, even if you are on the bank of a flowing
river.” (Sunan Ibn-e-Maja, Hadith No. 425)
Certain practical conservation techniques
include simple sustainable home living methods such as closing taps when water
is not needed, avoiding the use of hose pipes to wash the cars or water plants,
and taking short showers instead of long baths, etc. To this end, awareness can
be inculcated immediately through print and electronic (including social)
media. As a long-term measure, awareness about water conversation should be
imparted in school so as to change the mindset of our future generations.
17. The ultimate golden words by
the apex Court were as under:
“Together as a nation, we can bring
Pakistan out of this bleak situation. Let us realize the worth of water and put
first things first before it is too late.”
18. It brings me pain to say that
the directions of the Honorable Supreme Court of Pakistan having the force of
law were not taken seriously and no effective campaign was launched to educate
the people by the relevant segments of the society or even the electronic and
print media.
19. Considering the role of
Electronic Media for educating the people, Section 20(e) of the Pakistan
Electronic Media Regulatory Authority, Ordinance 2002[9]
(PEMRA) is relevant and as under:
“broadcast, if permissible under the terms
of its license, programmes in the
public interest specified by the Federal Government or the Authority in
the manner indicated by the Government or, as the case may be, the Authority,
provided that duration of such mandatory programmes
do not exceed ten percent of the total duration of broadcast or operation by a
station in twenty-four hours except if, by its own volition, a station chooses
to broadcast such content for a longer duration.” (Emphasized)
20. Rule 9(2) of the Pakistan
Electronic Media Regulatory Authority Rules, 2009 (Rules) is also significant
encapsulates that every licensee shall follow the general terms and conditions
as set out in Schedule-C. At serial No. 9 of the Schedule-C, it has been
specifically provided that:
“The licensee shall broadcast public
service programmes, which may be provided by the
Authority or by the Government.”
21. The Director General PEMRA,
with a positive gesture, maintains that the moment on behalf of District
Administration, Rawalpindi in particular M.D WASA any content is received, PEMRA shall immediately ask the broadcasters[10]
to broadcast such public service programmes and
messages to educate citizens on this sensitive issue.
22.
This Country has strong hopes and expectations from its next generation,
therefore, the students of the educational institutes are the best tools to
combat the water Crises and protect the homeland, as also observed by the apex
Court in Zafarullah Khan’s case (ibid).
23. The District Education Officer, Rawalpindi while bowing the
head, states that he shall also put his best efforts, that in every educational
organization, the students are to be educated on the importance of water and
adverse consequences thereof, if crises moves further. He is confident that it
shall definitely change the mindset of the future generation of the Country.
24. Coming to the ultimate solution, Mr. Razzaq
A Mirza, the learned Additional Advocate General has
brought into the notice of this Court, that yesterday a long duration meeting
was convened, and all stake holders joined their heads where after sound
proposals have been formulated with timelines to regularize and bring the
persons involved in the business of water extraction under the legal framework.
The said proposals are as under:
Sr.
No. |
Activity/Task |
Duration
to complete the task |
Timeline |
1 |
Consultation meeting with all
Stakeholders to get input and legal position on regularization of private
hydrants. |
One
day |
22nd
July 2022 |
2 |
Physical survey to ascertain
the existing capacity of all private hydrants by the technical committee on
the following parameters: • Nos. of existing hydrants. • Dia & depth of the borehole. • Pump capacity. • Working hours. • Discharge. • Tanker filled duration in one hr/day. • Tanker capacity and fees charged by the private hydrants. • Geo Tagging of existing hydrants • Distance between existing hydrants. • Area of water supply. |
30
days |
25th
July 2022 to 24th August 2022 |
3 |
Notice/Ad through Newspaper
for registration of hydrants to the respective department according to
territorial jurisdiction (WASA, Cantonment Board, and District Government). • All existing hydrants and water tankers to apply for
registration within 30 days. • Challan notices are also to be served
by the respective departments. |
15
days |
25th
July 2022 to 09th August 2022 (Parallel Activity) |
4 |
• Existing Rate/Tariff of water tankers in different areas and
their capacity (Market Survey). • Rate Charged by hydrants per Gallon/tanker. |
15
days |
09th
to 24th August 2022 (Parallel Activity) |
5. |
In-house
assessment of the following by WASA: • Existing water distribution in the city from different water
sources and its commanded areas. • Water Scarcity areas viz a viz water tanker supply areas. • Hydrology study to ascertain: Ø
Groundwater potential in the areas where
hydrants are working. Ø
Calculation of total water extracted by the
existing hydrants. Ø
Estimation of safe yield to be extracted by
the hydrants. Ø
Workout the requirement of hydrants and their
supplied areas. |
30 days |
25th August 2022 to 14th September 2022 |
6. |
Preparation
of Ø
SOPs for registration/ enlistment of existing
private hydrants. Ø
Criteria/SOPs for registration/enlistment of
new private hydrants. |
15 days |
25th August 2022 to 30th August 2022 (Parallel Activity) |
7. |
Calculate
the proposed tariff for water hydrants and water tanker rate by the
committee. |
15 days |
25th August 2022 to 30th August 2022 (Parallel Activity) |
8. |
Approval
of these SOPs from respective forums. Approval
of tariff & Publication in Official Gazette. |
15 days |
15th September 2022 to 30th September 2022 |
9. |
Registration of existing
Hydrants & water tankers. |
- |
Continuous
activity |
10. |
Enforcement Mechanism &
Penalties. |
||
11. |
Public Awareness Campaign on
water conservation: • Public Service messages campaign on billboards, streamers, and
banners Preparation of campaign (25th July to 01st September 2022) and
Display (02nd September to 08th September 2022) • Public Service message through print/electronic media including
local cables network. • Letter to syllabus committee to include a one-page message in
the curriculum of classes 5 and 8. • Debate & Tableau competition in Schools & colleges at
Tehsil, District, and Division level. |
- |
25th
July 2022 to onward (Parallel Activity) |
12. |
Introduction of water
conservation techniques by relevant agencies/departments like: • Water recharge wells. • Rainwater harvesting. • Recycling of service station washing water. • Water metering. • Modern fittings contain sensors and air to reduce wastage of
water. |
- |
15th
October 2022 to onward |
25. Adverting to the prayer made by
petitioners, as M.D WASA has already initiated the actions against private
respondents, therefore, the grievance of petitioners has been redressed.
26. Concluding the discussions made above, this writ petition
with the consent of all present, is decided in the following terms:--
i. The Deputy
Commissioner and M.D WASA, not later than a period of seven days from today,
shall provide to the Chairman/D.G PEMRA, the contents/explainer videos of
prescribed duration for education of public pertaining to the ongoing water
crises and the duties of citizens to meet this challenge.
ii. On receipt
thereof, the Chairman/ D.G PEMRA shall ask the broadcasters to broadcast the
said contents in terms of condition No. 9 of the ‘General Terms and Conditions
of License’ as set out in Schedule-C of the Rules.
iii. The Chairman/D.G PEMRA shall also require the broadcasters to
play their roles for awareness programmes by
involving the experts at their ends.
iv. The
Deputy Commissioner and M.D WASA shall launch a campaign to educate the public
by quoting the Verses of Holy Qur’an and Hadith on the importance of water by
displaying on billboards, streamers, and banners in Mosques, all educational
institutions (Schools, Colleges and Universities), and Government Offices in
addition to conspicuous places of the city.
v. The
Deputy Commissioner shall also ask the representatives of Chamber of Commerce,
Rawalpindi to use their forum for this campaign by inviting the trade unions
and other sectors of the society.
vi. The
District Education Officer, not later than next seven days from today, shall
ensure that all the educational institutions of the city (Government and
private) shall carry out effective awareness programmes
through short term lectures on alternate days in a week by inviting the
volunteers relevant to the subject as well as by hosting the debate
competitions.
vii. The District Education Officer shall require all the educational
institutions to hold a competition, asking the students to produce short
duration explainer videos on the issue and for further encouragement the best
videos shall be awarded. Being mindful of the great impact that such activities
can have, the District Education Officer shall ensure this methodology becomes
a norm.
viii. Living in an era where digital outputs are of major significance,
the District Education Officer and the Deputy Commissioner shall launch a
YouTube Channel solely dedicated to the issue.
ix. Using
this platform, all the videos irrespective of rewards produced by the students
shall be uploaded.
x. The
targeted contents shall also be posted, displayed and uploaded by using other
platforms, such as Facebook, Instagram and Twitter.
27. Office is
directed to send the copies of this Judgment to Commissioner, Deputy
Commissioner, City Police Officer, M.D WASA, District Education Officer,
President Chamber of Commerce Rawalpindi and Chairman/D.G PEMRA, Islamabad for
information and strict compliance.
(Y.A.) Petition disposed of
[1]. Chapter 29 Verse 30 of
Surah Al-Mulk. This Surah was revealed in Makkah. It is the 67th Surah in order, comprising of 30
verses. In the Surah, one can find out that Allah has made this world for a
reason. Allah Almighty has created paths to test his men whether they choose
the right one or go to the wrong path.
[2]. https://my.linkedin.com/in/kulsanofersyedthajudeen
[3]. https://www.islamicity.org/22446/verses-about-water-in-quran/about
illegal business of water hydrants within the District Rawalpindi, the matter
has been taken up in purview of the public importance litigation.
[4]. As a ground reality the number is quite
higher.
[5]. https://www.thenews.com.pk/print/969263-operation-against-illegal-water-hydrants-launched.
[6]. https://en.wikipedia.org/wiki/Cape_Town_water_crisis.
[7]. Day Zero is when most of the city’s taps
will be switched off.
[8]. Barrister Zafarullah Khan & others vs. Federation of Pakistan
& others 2018 SCMR 2001.
[9]. Duly amended by the
Pakistan Electronic Media Regulatory Authority (amendment) Act, 2007.
[10]. Defined under Section 2(d)
of the PEMRA.