ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
PRESENT:
Mr. Justice Aqeel Ahmed Abbasi
Justice Mrs. Kausar Sultana Hussain
C.P. Nos.D-5164 & 6248 of 2022
___________________________________________________________________ Date Order with signature of Judge
___________________________________________________________________
HEARING / PRIORITY CASE:
1. For hearing of CMA No.22040/2022.
2. For hearing of main case.
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Dated; 11th February 2023
Mr. Waseem Riaz Shaikh alongwith Ms. Afshan Arain, Advocate for Petitioner in CP No.D-5164/2022.
Mr. Usman Farooq, Advocate for Petitioner in CP No.D-6248/2022.
Qazi Muhammad Bashir, Addl. Advocate-General, Sindh alongwith Mr. Taha Saleem, Deputy Commissioner, Karachi Central.
Rana Waseem Sajjad, Advocate for Respondent No.2 in CP No.D-5164/2022 alongwith Executive Engineer Abdul Rasheed, Superintending Engineer Central-A Shahrukh Hussain and Superintending Engineer WTM-1 Tanveer Ahmed from KW&SB.
Ms. Umaima Mansoor Khan, Advocate for Respondent No.9 in CP No.D-5164/2022.
SIP Kamran Zafar from PS North Nazimabad and ASI Muhammad Ifrahim from PS Hyderi are present.
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O R D E R
Above Constitutional Petitions have been filed by the residents of Blocks B & F, North Nazimabad, Karachi, who have expressed their grievance against the proposed water connection of 4” dia from main pumping line of 48” viz. KDA Chowrangi Pumping Station, North Nazimabad to Dr. Ziauddin Hospital, North Nazimabad, Karachi by Karachi Water & Sewerage Board (KW&SB) pursuant to Sanction Certificate vide Order No.B-161, Voucher No.6162, Form No.0172, Diary No.DDT/A&E/WC/161/2022, dated 11.05.2022 (available at page 29 as Annexure ‘A’) on the ground that such water connection from the main pumping line to the above hospital to be utilized for commercial purposes is not permissible in law. Learned counsel for the petitioners have argued that the officials of KW&SB while issuing Sanction Certificate of 2” dia line, have in fact connecting 4” inch dia line from the bottom of main 48” main pumping line, in addition to the water connection already granted to Dr. Ziauddin Hospital, North Nazimabad, Karachi, which otherwise is illegal and in violation of Sanction Certificate, as referred to hereinabove. It has been argued by the learned counsel for the petitioners that there is already shortage of water in the area, whereas, water is supplied to the residents of Blocks B&F, North Nazimabad for the residential purposes on alternate days from 6” dia line and not from 48” main pumping line, therefore, the proposed connection, besides being illegal, will also create serious shortage of water supply to the residents of the area, which otherwise have a prime right to get drinking water for residential purposes. It has been argued by learned counsel for the petitioners that proposed Sanction Certificate of water connection by the KW&SB for the commercial use to the respondent No.9 is based on malafide and contrary to law, whereas, official respondents are in league and connivance with respondent No.9.
2. Notices were issued to the respondents and learned Advocate-General Sindh, with directions to file their reply/comments, and in the meanwhile, respondents were directed to maintain status quo in respect of the subject connection. Pursuant to such Notices, respondents have filed their reply/comments, wherein, the allegations with regard to Sanction of illegal water connection of 4” dia line has been denied, whereas, it has been submitted that the subject water connection has been given as per law, after having received the requisite fees/charges as per KW&SB’s tariff and there is no violation of any law and relevant rules. In the comments, it has been further submitted that water connection of 2” dia line has been sanctioned and not 4” dia line, as alleged by the petitioners, whereas, the allegation of granting 2” dia line in addition to the earlier connection from 48” dia main pumping line to the respondent No.9, has also been denied. Reference in this regard was made to the Office Order No.KW&SB/B.M.D/HRD&A/1020, dated 29.09.2016, whereby, different rates for Government’s own properties, including hospitals, schools, colleges, etc. have been prescribed for the purpose of obtaining water connection of different sizes, after making payment of the applicable rates/charges, (copy of which has been annexed at page 157 to 173 alongwith revised rate / tariff of KW&SB service charges 2021-22, dated 05.07.2021 at page 175).
3. In order to verify such factual position, Nazir of this Court was appointed as Commissioner to carry out inspection of the site in presence of all the parties, and to submit report alongwith photographs. Pursuant to such directions, Nazir has submitted his report dated 14.09.2022 alongwith photographs, which reads as follows: -
“NOTINGS OF INSPECTION
1. It was noted that one hole was dig at the site through which the main pipe line of 48’ inches viz. KDA Chowrangi towards North Nazimabad was installed and on enquiry Mr. Ahsan, Executive Engineer of Water Board stated that this pipe line provides water connection to all the surrounding areas and one valve of 2’ inches was connected with this 48’ line at the mid of bottom of 48’ inch main pipe line and he also provided set of documents for the approval of said line which are annexed as ‘A’.
2. It was also noted that valve fixed on 48’ inch main pipe line which measured of 2’ inch and its outside supply space which measured 3’ inch and at the time of inspection no connection was fixed with this line. At the time of inspection no work was going on.
3. The distance from the said pipeline towards Ziauddin Hospital is approximately 1.5 Km. During inspection some photographs were also snapped which are annexed herewith for kind perusal as Annexure P/1 to P/8.
CONCLUSION
1. The connection/line of respondent No.9 is according to approval by the KW&SB.”
4. During pendency of these petitions, leaned counsel for respondent No.9 expressed their willingness to make an attempt to resolve the matter amicably with the petitioners while addressing their concern and apprehension of shortage of water supply to the residents, and requested that the Deputy Commissioner, Karachi Central may be directed to convene a meeting of all stakeholders to examine the possibility of an amicable settlement in accordance with law. Learned counsel for the petitioners did not oppose such request, therefore, the Deputy Commissioner, Karachi Central was directed to undertake such exercise by calling all the stakeholders and to examine the possibility of an amiable settlement between the parties, however, keeping in view the relevant law, rules and regulations. Pursuant to the Court’s directions, initial meeting was held in the office of the Deputy Commissioner, Karachi District Central on 11.10.2022, wherein, some progress was made, however, the matter could not be finally resolved in the first meeting, as the petitioners wanted assurance and undertaking from KW&SB to the effect that subject water connection, if found to be legal, will not result in any shortage of water supply to the residents of Blocks B&F, North Nazimabad Karachi. Therefore, another meeting was held in the office of the Deputy Commissioner, Karachi District Central on 04.01.2023, which was attended by all the stakeholders, minutes of which have been submitted vide compliance report dated 13.01.2023, which read as follows: -
“A meeting under the directives of the Honourable High Court of Sindh in C.P.No.D-5164/2022 was held under chairmanship of Mr.Taha Saleem, Deputy Commissioner, Karachi Central on 04-01-2023 at 3.00 p.m., in his office.
Meeting started with the recitation from Holy Quran.
1. Mr. Imran Rajput, ADC-II, District Central, Karachi.
2. Mr. Muhammad Shadab, SDPO Shadman, Karachi Central.
3. Mr. Waseem Reyaz, Advocate for the Petitioners
4. Mr. Owais Jamal Advocate, Attorney of Ziauddin Hospital
5. Mr. Shahrukh Hussain Superintending Engineer KW&SB, Central
6. Mr. Tanveer Ahmed, Suptd. Engineer (WTM-I) KW&SE, Central
7. Mr. Sohail Atyeb, EE North Nazimabad, KW&SB
8. Mr. Faisal Saghir, XEN (B&R), DMC
9. Mr. Tariq Siddiqui, AEE (WTM-I) KW&SB
10. Mr. Zahid Latif, Dy. Director KW&SB
11. Mr. Asad Khan, Sr. Auditor
12. Mr. Jawaid Sultan, Petitioner.
13. Mr. Tariq Bin Naseer, Petitioner
14. Syed Zia Jamal, Petitioner
15. Mr. Muhammad Suhail, Petitioner
16. Mr. Masood Ahmed, Petitioner
17. Mr. Zulfiqar Ahmed, Petitioner
The Chair welcomed the participants and apprised the participants that the Honourable High Court has assigned responsibility to Deputy Commissioner Central as arbitrator, to settle the matter amicably.
The Chair Invited representative of petitioners to open the discussion.
Mr. Masood, representative of Petitioners shows the apprehension of the locality that the water board is providing water connection to Dr. Ziauddin Hospital North Nazimabad from main supply line, resulting which pressure of water supply of the area will be affected and cause shortage of water in our areas. Proper water supply is the first right of the area residents.
Advocate for Dr. Ziauddin Hospital said that there is no other existing water connection at Dr. Ziauddin Hospital, ST-16 Block “B” North Nazimabad. It is a first connection for which we applied by completing all codal formalities and it is the responsibility of KW&SB to provide water connection for hospital, which is not a commercial Institute. He further said tht the main hospital has its RO plant and they are using sub-roil water to cater its need. However, Cancer Hospital ST-8/B1, North Nazimabad has a water connection.
The representative of KW&SB said that it is a 2” connection which is being providing to Ziauddin Hospital after completing all formalities and payment of challan. As per Policy of 2016, through main 48” line about 70 lac gallon (7 MGD) water is supplied, and from 2” line only 20,000 gallon water will be supplied.
The Chair apprised the forum that we have saved a lot of theft water from Muhajid Colony, after a comprehensive anti-encroachment drive, and we hope there will be no shortage of waterin surrounding areas.
The Chair further said that provision of water connection is responsibility of KW&SB, SE (WTM) KW&SB has agreed to given in meeting.
1. Ziauddin Hospital, Block-B, North Nazimabad has no existing water connection.
2. Percentage/ratio of water will be supplied to Ziauddin Hospital, from bulk line is notmore than 0.28%.
3. The size of water connection line to be provided to Hospital is 2 inch.
4. The supply is not through the rising main.
5. If any shortage arisen with the water connection then the KW&SB shall be providing additional water connection.
The Advocate for Petitioners suggested that the connection to Ziauddin may be provided from Mujahid Colony line.
AEE (WTM) KW&SB clarified that we could not provide line to Ziauddin Hospital from Mujahid Colony, as there is no regular water supply as water is being supplied in alternate days to these areas. He further informed that the said line is of CI Pipe, which could not sustain the water pressure. There is no any other option to provide water from another line/source.
The Chair said that after saving a lot of water from Mujahid Colony, areas of Block-B & F are getting a lot of water wince last three months. These areas are being supplied from 8” line but there is no water shortage in the area.
The chair apprised the participants that the Bulk supply line provides 7 minion gallon water, wherein 4 lac gallon water is provided to Block-B from 8” line. From remaining 66 lac gallon water, 20000 gallon is to be supplied to Ziauddin Hospital.
He further said that representative of KW&SB will ensure and submit an affidavit that if there will be shortage of water in the area then KW&SB will fulfill the need any way.
After detailed discussion, the petitioners agreed over the proposal of Chair.
The chair directed the representative of KW&SB to submit affidavit / proposed details of supply of water in written, so that the same may be submitted to the Honourable High Court, alongwith the minutes of this meeting.
Meeting ended with a vote of thanks from the chair to all the participants.”
5. Pursuant to the aforesaid Minutes of the Meeting, Mr. Qazi Muhammad Bashir, Addl. Advocate-General, Sindh present in Court alongwith officials of KW&SB and Deputy Commissioner, Karachi District Central, has filed a statement dated 01.02.2023 alongwith undertaking by the Executive Engineer of KW&SB, which reads as follows: -
I, Abdul Rasheed son of Ahmed Ali holding CNIC No.43203-1338812-5 resident of Karachi, do solemnly affirm on Oath as under:-
1. That, I am Executive Engineer of the Dumlottee Division of the KW&SB and I am fully authorized to make the undertaking.
2. That, the KW&SB sanctioned, vide sanction certificate dated 11-05-2022, the 2” inch dia water connection to Ziauddin Hospital upon the application of Ziauddin Hospital, after completion of the requirements as per policy of KW&SB.
3. That after execution of the 2” inch dia water connection to Ziauddin Hospital, in case there is a shortage of water to the petitioner’s area, the KW&SB shall provide additional water connection to fulfill requirement of the petitioner facing such shortage as per policy of KW&SB and completion of all codal formalities.
DEPONENT
CNIC No.43203-1338815-5
Mobile No. 0312-9201172”
6. Mr. Qazi Muhammad Bashir, learned Addl. Advocate-General, Sindh has submitted that since the proposed water connection to Dr. Ziauddin Hospital of 2” dia line has been sanctioned in accordance with law and the Office Order dated 29.09.2016 after completion of codal formalities and receipt of requisite charges as per Tariff of KW&SB, and the concern of the petitioners has also been addressed, therefore, requested that petitions may be disposed of in terms of the Minutes of Meeting held on 04.01.2013 and the undertaking given by the official of KW&SB to the satisfaction of the petitioners to the effect that there shall be no shortage of water supply to the residents of the Area, particularly residents of Blocks B&F, North Nazimabad, on account of proposed water connection to the respondent No.9 i.e. Dr. Ziauddin Hopsital, North Nazimabad, Karachi. Learned counsel for the petitioners do not dispute such position relating to the settlement reached between the parties and also do not oppose disposal of petitions in above terms, however, submit that disposal of instant Petitions in above terms shall be without prejudice to the legality of the water connection through Sanction Order No.6162 dated 11.05.2022 to the respondent No.9 from 48” of main pumping line, whereas, in case of any shortage or disruption of water supply to the residents of the Areas, petitioners may be allowed to approach this Court by filing contempt application and/or to file fresh petition, challenging the legality of the Office Order No.KW&SB/B.M.D/HRD&A/1020, dated 29.09.2016 and the Tariff of KW&SB in accordance with law, as according to learned counsel, it lacks the legal support. It has been further contended by the learned counsel for the petitioners that respondents may be directed to ensure that proposed water connection to the respondent No.9 shall be given as per aforesaid Sanction Certificate vide Order No.B-161 (2” dia line), however, not from the bottom of the main pumping line, whereas, it shall be ensured that work shall be completed within shortest possible time without causing any inconvenience to the residents and the public. It has been further submitted that the digging area shall be filled immediately and the road shall be carpeted accordingly, to avoid any accident/inconvenience to the residents of the aforesaid area and public at large.
7. Learned Addl. Advocate-General, Sindh, Mr. Taha Saleem, Deputy Commissioner, Karachi District Central and the officials of the KW&SB present in Court, have given their assurance that the work of water connection to respondent No.9 shall be completed strictly in accordance with law, as per Sanction Certificate, as referred to hereinabove, within shortest possible time, without causing any inconvenience to the residents of the aforesaid Areas, whereas, the filling of the digging area and carpeting of the road shall also be carried out alongwith such process, and there will be no delay in this regard.
8. In view of hereinabove facts and circumstances, and the settlement reached between the parties, however, without commenting on the validity or otherwise of the Office Order dated 29.09.2016, or the Tariff of KW&SB service charges for 2021-2022, dated 05.07.2021, above Constitutional Petitions are disposed of by consent of the parties, as per settlement between the parties recorded in the Minutes of the Meeting held on 04.01.2023 in the office of the Deputy Commissioner, Karachi District Central, and the undertaking given by the KW&SB through their Executive Engineer present in Court today, above Constitutional Petitions are disposed of alongwith listed application(s).
9. Before parting with the order, we may observe that all the officials authorities and departments, including the officials of KW&SB, shall ensure before granting any permission of road cutting and approval(s) of KMC, KDA and DMC/DCs, for the purposes of giving water connections, laying sewerage lines or for laying underground telephone/networking lines/cables etc. after completion of all codal formalities, whereas, the contractors shall be bound to complete the work as per terms of the contract/award, whereas, all the SoPs shall be observed so that such work shall be completed within shortest possible time, without causing any inconvenience to the residents of such Area and the public at large. It shall also be ensured that carpeting of the streets/roads shall also be done alongwith completion of such work within shortest possible time, and in case of non-observance of the terms of contract/award and violation of SoPs, strict action shall be taken against such contractors in accordance with law.
10. Above Constitutional Petitions stand disposed of in the aforesaid terms alongwith listed application(s).
J U D G E
J U D G E
*Farhan/PS*