IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Const. Petition No. D-166 of 2020
Present:
Mr. Justice Zafar Ahmed Rajput.
Mr. Justice Adnan-ul-Karim Memon.
Petitioner : Fayaz Ali Mastoi s/o Mehboob Khan,
through Mr. Sarfraz Ali Abbasi, advocate
Respondents : Assistant Executive Engineer Irrigation,
No.1 to 4 & 8 Shahdadkot Sub-Division and others,
through Mr. Liaquat Ali Shar, Addl. A.G. along with Mr. Zirgham Ali Rajpar, Assistant Executive Engineer Irrigation, Sub-Division Shahdadkot and Mr. Muhammad Ali Canal Assistant, Irrigation Sub-Division Shahdadkot.
Respondents : Ghulab Khan and others,
No.5 to 7 through Mr. Habibullah G. Ghouri, advocate
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Date of hearing : 03.08.2021
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ORDER
Adnan-ul-Karim Memon, J-. Through instant Constitutional petition, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the petitioner seeks directions to the official respondents regarding supplying of the water to his agricultural land from the sanctioned peach of watercourse 2AR, Tanwery Distry, as per share list, to enable him to cultivate his agricultural land.
2. The petitioner has primarily premised his case basing on his ownership in respect of agricultural land bearing survey Nos. 22, 23 and 26, total admeasuring 27-30 acres, situated in Deh Lal Khan Mastoi, Taluka Sijawal Junejo, District Kamber-Shahdadkot @ Kamber. It is the case of the petitioner that he is entitled to water share to irrigate his land to grow-up his crops under the share list maintained by the Irrigation Department and the private respondents No. 5 to 7 have no legal right to interfere with the flow of irrigation water supplied to his land through sanctioned peach since his forefathers i.e. watercourse 2AR.
3. Mr. Sarfraz Ali Abbasi, learned counsel for the petitioner, while attempting to give a brief history of the case, has contended that the petitioner’s agricultural land is rest for irrigation on the watercourse 2AR, Tanwery Distry, for the last so many years, even from the time of predecessor-in-interest from whom petitioner’s father purchase the land. He has further contended that the private respondents are persistently attempting to obstruct water supply to the petitioner's land from the said watercourse and are threatening the petitioner to close the same by force and the official respondents have always accommodated the private respondents, against that the petitioner raised hue and cry but all went in vain, compelling him to approach this Court. He has also contended that the petitioner within his rights is entitled to have irrigation water to irrigate his land and the official respondents are bound to supply the same in accordance with laws of irrigation, but they are reluctant to exercise their legal authority to ensure smooth flow of irrigation water to petitioner’s land as per his share. He has also contended that interference of private respondents in flat supply of water to the petitioner’s land through watercourse 2AR amounts to an offense under irrigation laws but the official respondents have failed to take any action against them.
4. On the other hand, Mr. Habibullah G. Ghouri, learned counsel representing the private respondents, by raising the question of maintainability of the instant petition has maintained that the petitioner’s land is not settled on watercourse 2AR but on 2BR; as such, the petitioner is not entitled to irrigate his land through watercourse 2AR, which belongs to private respondents. He has added that since the disputed questions of facts are involved in this petition, the proper course for the petitioner is to file a civil suit for the redressal of his grievances, if any. In support of his contentions, he has relied upon un-reported order, dated 28.3.2019, passed by Hon'able Supreme Court of Pakistan in Civil Petition No. 535-K of 2017, un-reported order, dated 20.6.2017, passed by this Court in Const. Petition No. D-462 of 2017 and un-reported judgment, dated 02.8.2017, passed by this Court in Const. Petition No. D-582 of 2017. Learned counsel while taking us to various documents attached with his written objections to the petition has further maintained that the sanctioned watercourses are the personal property of the individual landowners, who get the same constructed and maintain such watercourses from their own sources, hence, the watercourse 2AR situated on the land of private respondents is their personal property wherein neither petitioner nor the official respondents are entitled to interference. Lastly, he prayed for the dismissal of the instant petition.
5. Mr. Liaquat Ali Shar, Additional Advocate General, Sindh has supported the case of the petitioner by referring to the official documents attached with the comments filed by the official respondents and has submitted that the land of the petitioner as per irrigation record is settled on watercourse 2AR, Tanwery Distry, and the water is being supplied to petitioner’s land from the said watercourse regularly by the official respondents; however, the private respondents are disturbing the flow of water to the petitioner’s land through their land. He while placing on record a copy of Mashirnama, dated 02.8.2021, duly supported with the photographs has further submitted that this petition may be disposed of with a direction to the official respondents to do the needful in accordance with law if the flow of water is disturbed by the private respondents.
6. We have heard the learned counsel for the parties and perused the material available on record with their assistance.
7. First of all, we take up the issue of maintainability of the instant petition under Article 199 of the Constitution. In our view, Article 9 of the Constitution provides the right to life, if a person is deprived of the fundamental right, he can always approach this court by invoking Constitutional jurisdiction of this Court with a rider that such right is not hampered with any law. A right to irrigate agricultural land is also governed and protected under the irrigation laws and the rules made there under and in case of infringement thereof, the same could be examined by this Court. In this regard, we deem it advantageous to refer here the case reported as 2014 SCMR 353, wherein the Hon'able Supreme Court has observed that the provisions of the Sindh Irrigation Act, 1897 are required to be strictly observed so that nobody can encroach upon the rights of others, as the farmers are earning their livelihood for their own lives and their families, which is a fundamental right guaranteed under Article 9 of the Constitution. So far, the contention of involving disputed questions of facts as argued by the learned counsel for the private respondents is concerned, we are of the view the claim of the petitioner that his land is rest on watercourse 2AR for irrigation purpose, has not been denied by the official respondents; on the contrary, they have admitted in their comments with relevant record i.e. share list, map etc. that the petitioner’s land in fact rest on watercourse 2AR Tanwery Distry. It is the contention of the private respondents that the petitioner’s land is rest on watercourse 2BR; however, they have failed to produce any cogent documentary evidence in support of their contention. Such contention of private respondent has been denied by the official respondents of the irrigation department. Mere disputing the facts of the petition by the private respondents for the sake of dispute with sole intention to render a constitutional petition non-maintainable, does not otherwise make it non-maintainable. The case-law cited by the learned counsel for the private respondents does not advance the case of said respondents. We, therefore, hold that the instant petition is maintainable.
8. It appears that the petitioner’s land is settled on watercourse 2AR, Tanwery Distry, such sanction orders are available on record duly endorsed by the official respondents present in Court. It further appears that the aforesaid watercourse was constructed by one Yar Muhammad Sheikh, the predecessor-in- interest of the petitioner. The petitioner has been supplied irrigation water to his land as per record since long, which fact has been admitted by the official respondents. The said watercourse flows from the land of private respondents as per the record of irrigation department, who have prima facie attempted to stop the same, compelling the petitioner to approach this Court for the redressal of his grievance.
9. We, therefore, direct the official respondents to ensure supply of irrigation water to petitioner’ land from watercourse 2AR, Tanwery Distry, as per share list and in accordance with the irrigation laws, rules and regulations, without any unwanted disturbance from any corner. In case, the private respondents have any objection on the supply of irrigation water to petitioner’ land from said sanctioned watercourse, they are at liberty to approach the concerned authority under the irrigation laws for the cancellation of petitioner’s sanctioned watercourse , who shall decide the same in accordance with law.
10. For the foregoing facts, discussions and reasons, the instant petition stands disposed, along with all the pending applications, in above terms.
Judge
Judge