ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C.P. No.D-1006 of 2017

Petitioner : Haji Dad Muhammad

Through Abdul Sattar N. Soomro, Advocate

Respondents : Through Zulfiqar Ali Naich, Assistant

Advocate General

Date of hearing : 16.07.2020

Date of Order : 16.07.2020

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O R D E R

ADNAN-UL-KARIM MEMON, J: The instant Constitution Petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the petitioner, seeking declaration to the effect that the petitioner is khatedar of “canal of Ghouram and is entitled to water share to irrigate and mature his crops and that the respondents have no jurisdiction / authority to stop water supply, situated at the tail of the canal of Ghouram minor.

2. Mr. Abdul Sattar N. Soomro, learned counsel for the petitioner submits that the private respondents have encroached the rights of tail-Enders of khatedars of canal of Ghouram and when they were restrained, they took law in their hands, threatened the petitioner.

3. We have heard learned Counsel for the parties and perused the material available on record.

4. In our view, Article 9 of the Constitution provides right to life, if a person is deprived of fundamental right, he can always approach this court by invoking Constitutional jurisdiction with a rider that such right is not hampered with any law. A right to irrigate Agricultural land is subject to irrigation law and the rules, this right however if infringed could be examined by this court, we therefore hold that the instant petition is maintainable.

5. It appears from the record that the issue as raised in the present proceedings has already been settled by Honorable Supreme Court in its judgment dated 03.12.2013 passed in Constitution Petition No. 59 of 2013 reported in (2014 SCMR 353). A perusal of said decision shows that certain outlets were sanctioned in violation of law and in relaxation of the ban imposed by the Sindh Government vide letter No.2/687-S.O. (OP)/70-Vol-III, dated 2-1-1999. But, in the relaxation of the ban from time to time, outlets were sanctioned in favour of influential and interested persons, consequently, the lands of Khatedars situated at tail end were not getting water according to their share, as before reaching the tail, the entire water was consumed by upper riparian’s. The Khatedars raised their voice of concern to protect their rights. The Honorable Supreme Court took Suo-Moto notice and passed the order dated 03.12.2013. For convenience sake, an excerpt of the order is reproduced as under:-

“In such view of the matter, we direct the Secretary, Irrigation that immediately he should take action to protect their interest. Here we deem it appropriate to reproduce operative part of the report of the learned District and Sessions Judge Badin dated 27-11-2013:- "It is further submitted that frames of the outlets were tampered and some were having repaired freshly. The type of the frames as sanctioned was 2" x 2" inches but after tampering; the same were found up to 1 to 2 feet width. It is further submitted that on 25-11-2013 the most of the outlets were closed and the Irrigation Officers informed that the same have been closed due to rotation; hence, the flow of water was found up to the sanctioned level and reached at the tail of Sangi Pharho/Regulator. It is further submitted that the outlet of Kamal Khan Chang crossed Pir Sakhi Minor. It is further submitted that again on 26-11-2013 the undersigned conducted the surprise visit of the site without accompanying the Irrigation Officers and found that most of the outlets were opened, hence, there was no pressure of flow of the water at the tail and it was not flowing at sanctioned level at the tail of Sangi Phraho. It is further submitted that if all the outlets remain opened, then the flow of the water will not reach at the tail of Naseer Branch. In this situation, the Zamindars of tail of Naseer Canal Branch cannot get the Irrigation water for cultivating their lands"

6. The order passed by Honorable Supreme court resolves the issue, which is also subject matter of this petition.

7. Further, we have noticed that Section 16 of Sindh Irrigation Act requires that any person with the permission of duly empowered Canal Officer may construct watercourse on land after obtaining consent of owners of the land. Under section 17 of the Act, land may even be acquired to enable a person to construct the watercourse to irrigate his land and it may also cause to be constructed by the Canal Officer; but all expenses have to be borne by the person applying for construction of watercourse. Any person desirous of obtaining the benefit of such watercourse may also apply for joint ownership thereof and upon paying his share in construction can be benefited. Section 21 of the Act, however, deals with rights and obligations of owners of watercourses and apart from requiring them to maintain them, confers upon such owners a right to have supply of water on such terms as prescribed in the relevant Rules.

8. A reading of above provisions shows that though receiving of water in terms of Section 21 is the right of petitioners, but it is subject to water sharing policy as discussed in the preceding paragraphs. Such right, however, would not be translated to mean depriving of other khatedars at tail end from their due share in the water. The water sharing policy has to be made on equitable distribution of water for benefits of all khatedars including those at the tail end of water source.

9. A perusal of record and consideration of contention of petitioner raised before us has persuaded us to believe that the issue involved in the present proceedings is distribution of water to the lands of genuine Khatedars of the concerned area in accordance with Sindh Irrigation Act through canal of Ghouram minor. Distribution of water according to its availability in equitable manner without discrimination to sanctioned channels in accordance with Sindh Irrigation Act is responsibility of Irrigation Department, Government of Sindh.

10. We have noted that there are three (03) Barrages in Sindh Province viz. Guddu, Sukkur and Kotri, which provide required water to the lands in Sindh. The only issue as stated above is equitable distribution of irrigation water by the Irrigation Department. We expect that the official respondents to perform their duty in conformity with policy of equitable distribution of water and under the said cover, regular vigilance shall be made by them.

11. This petition has been filed against purported harassment, however we direct irrigation department to ensure right of each party to their water share in accordance with irrigation Act and water share policy.at this stage, learned AAG has filed statement of Assistant Executive Engineer, Dharki Sub-Division Irrigation and assured that water will be provided to the lands of the petitioner as per share list accordingly.

12. Petitioner, being satisfied with the statement of Assistant Executive Engineer, Dharki Sub-Division Irrigation, seeks disposal of this case accordingly.

13. Before parting with this judgment, we direct the competent authority i.e. Respondent-department that the issue of supply of water to the lands of Petitioner shall be made as per his share after appropriate proceedings in case if the petitioner approach them. The compliance report shall be filed by the official Respondents with Additional Registrar of this Court within the stipulated period in regard to the distribution of water as per the share of the locality zamidars.

14. In view of the above, this petition stands disposed of in terms of the statement dated 16.07.2020, given by Assistant Executive Engineer, Dharki Sub-Divison Irrigation.

JUDGE