PLJ 2022 Lahore 819
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.
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.
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.
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.
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