2025 PLP 2020 (CLC)

MOHSIN AKHTAR KAYANI, J.

By way of this judgment, I intend to decide the instant writ petition along with W.P. No. 4044 of 2021 and W.P. No. 75 of 2022 having common questions of law and facts.

2. In W.P. No. 1670 of 2022, the petitioner namely, Ibrar Hussain has assailed the action/opinion rendered by respondent No. 2 / District Attorney, Islamabad on the application for de-sealing of tube wells submitted by respondent No. 3 / Sikandar Hayat.

3. Learned counsel for the petitioner in this case contends that respondent No. 2 / District Attorney has taken a contrary view against the orders passed by this Court on 08.03.2021 in W.P. No. 907 of 2021 and the order dated 17.03.2022, passed in I.C.A. No. 151 of 2021. He further contends that after the opinion rendered by respondent No.2, the Additional Deputy Commissioner (General), Islamabad has allowed all the tube well operators and water suppliers to continue their businesses without any regulatory regime under the law, though this Court in unequivocal terms has declared such activity illegal and against the law.

4. In W.P. No. 4044 of 2021, the petitioner namely, Asim Shehzad Malik has made a request for issuance of direction to the respondents to decide the application moved by the petitioner for the provision of the license to operate and run the water supply business through the tube wells in the vicinity. He has also pointed out that this Court has passed an order, dated 23.04.2019 in W.P. No. 561 of 2019 and consequently, the District Administration sealed the tube well of the petitioner causing severe damage to the business of the petitioner and after gaining knowledge about the reasons for such sealing, the petitioner immediately moved an application for permission of the license or permission to continue with the business in the vicinity however, the application, dated 22.09.2021 moved before the Administrator MCI has not yet been decided by respondent No. 1.

5. In W.P. No. 75 of 2022, the petitioner namely, Khawaja Manzoor Ahmed Lone who is resident of Union Council Koral, Islamabad and claims that there is a huge shortage of drinking safe water in the area and the government had built up few water hydrant few years ago and water storage tanks around the area in order to cater the water needs of the people. However, due to corrupt, incompetent, inefficient, illegal acts and omission of the Government officials of concerned departments, the said facilities have been destroyed, inoperative, possessed, encroached and occupied by land Mafia and water tanker mafia. Resultantly, the petitioner and other people are forced to buy the water tanker from the respondent contractor and tanker supply business holders who are charging heavy amount against the supply of water, which was extracted from the State land being an underground water, therefore, he prayed for issuance of direction to the respondent / government to provide sustainable safe drinking water as per WHO standards to the petitioners and the inhabitants of Koral, Islamabad for which funds be released for establishment of proper schemes and old water schemes and tankers and hydrants be repaired with further request that the private water tanker business holders and water supply/tube wells be regulated through by observing the standard of safe water including the price of the supply of the water and all such business be regulated through licensing regime.

6. Conversely, CDA authorities have taken different stances in their reply in terms of the Capital Development Authority Ordinance, 1960 within the parameter of Sections 11 and 12 of the Capital Development Authority Ordinance, 1960 with reference to Master Plan and Master Program including the preparation of schemes by the local bodies or agencies, which includes the utilization of water, power and other natural resources. It has also been highlighted by the learned counsel for the CDA that in the private housing schemes the concerned society company is responsible to establish such a water supply, scheme or primary sewerage treatment system to be developed by sponsors at their own cost and expense in terms of ICT (Zoning) Regulations, 1992. The CDA authorities have also taken the stance that no NOC or license has been issued by CDA regarding water supply to any company, association or person in Islamabad and they have taken action against illegal tube wells/water supply companies, individuals pursuant to the direction of this Court in judgment, dated 23.04.2019 passed in W.P. No. 561 of 2019.

7. On the other hand the Administrator, MCI claims that ICT had installed water supply scheme for village Koral through the Local Government and Rural Development Department, ICT and millions of rupees has been spent by the Local Government Department, even the department in lieu of the pending dues of IESCO bill has established water user committee on the demand of Secretary, Union Council Koral, who is the custodian of water supply scheme and all the water supply schemes have been run by the user committee in the local government setup. However, tankers have not been regulated by ICT administration and at present no law exists to regulate the private tube wells/hydrants. It has specifically been claimed by the administrator that union council is independent entity and individuals business/profession of private water source has to be regulated by the Union Council/MCI under Local Government Act, 2015 vide Ninth Schedule Section 121 Subsections 64 (h) and (70) but no such permission or NOC has been granted to private water hydrant in this regard.

8. On the other hand the private respondents who are running the water supply business claim that their hydrants and water supply scheme was sealed by the ICT administration on the basis of NOC despite that no NOC is required for tube wells and it has been acknowledged that there are number of tube wells operating in the ICT including the private housing schemes/societies in which water has been supplied on commercial basis and no one has a license/permission or NOC under any law to operate such business, therefore, the MCI, CDA and District Administration has no authority to seal any water supply business in any manner.

9. Learned Assistant Attorney General as well as the learned State Counsel have also explained the legal position on the issue of water scarcity even different applicants and all the counsel have been heard representing the respondents or different individuals who intend to implead in these cases.

10. Arguments heard, record perused.

11. The issue highlighted in these petitions is of a public importance. On minute scanning of the background of this case, which resulted into filing of these petitions as well as earlier round it appears that there is three basic fundamental questions, which are as under:- i. whether underground water in the territory of Pakistan or especially within the Islamabad Capital Territory is a State property? ii. Whether any individual can run any water hydrant tube well on commercial basis and charge any amount for supply of water through tanker or through any other source or channel and such business activity is permissible? iii. Whether any law in ICT is available to cater the water supply business through licensing regime, which require the license, NOC or permission under any law?

12. In order to answer these questions, I have attended the Capital Development Authority Ordinance, 1960, which has been promulgated with the objective, Firstly, planning and development of Capital (Islamabad) and secondly, compelling or authorizing Capital Development Authority to perform functions of a Municipal Committee, inter alia, to promote different sections of society including taxpayers, therefore, CDA authority has been constituted in terms of Section 4 of the Capital Development Authority Ordinance, 1960 whose management has been vested to a Board, which may exercise all powers and do all acts and things including but not limited to the development, town planning and housing and shall be guided on questions of policy by such directions as the Federal Government may from time to time give in terms of Section 5 of the Ordinance of 1960. The duties of the Chairman have been explained in the law. The primary parameter has been set out in Chapter II, which deals with the powers and duties of the authority, whereby in terms of Section 11 of the Ordinance of 1960 the authority shall prepare the master-plan and a phased master programme for the development of the Capital Site, and may prepare a similar plan and programme for the rest of the Specified Areas, and all such plans and programmes shall be submitted to the Federal Government for approval. In terms of Section 12 of the Ordinance of 1960 preparation of schemes by local bodies or agencies have been explained, which are the key subjects provided in subsection (2) of Section 12, which are as under:- (a) Land use, zoning and land reservation. (b) Public buildings. (c) Industry. (d) Transportation and communications, highway, roads, streets, railways, aerodromes. (e) Telecommunication, including wireless, television, radio, telephone. (f) Utilization of water, power and other natural resources. (g) Community planning, housing, slum clearance, amelioration. (h) Community facilities including water supply, sewerage, drainage, sewage, disposal, electricity supply, gas supply and other public utilities (i) preservation of objects or places of historical or scientific interest or natural beauty.

13. Therefore, in the light of above subjects of authority of the CDA, everything requires to be operated subject to approval of the CDA Board, therefore, legislature has inducted subsection (5) of Section 12, which has been couched with the term no planning or development scheme shall be prepared by any person or by any local body or agency except with the concurrence of the Authority . Such aspect clearly establishes and acknowledges the jurisdiction of CDA in all the matters within the ICT. Therefore, CDA was further allowed to prepare the scheme pursuant to master-programme when it considers it desirable to do so in the public interest. Similarly, Section 15 of the Ordinance of 1960 extends the municipal functions to the CDA. The execution of schemes has also been acknowledged in CDA Ordinance, 1960. In order to establish the Islamabad as Capital Territory the CDA has been equipped with powers of acquisition in terms of Sections 22, 24 and 25 of the CDA Ordinance, 1960 through a proper procedure in terms of inquiry and award through Deputy Commissioner and compensation should also be awarded in terms of the procedure and yardstick provided in Section 30 of the Ordinance, 1960 to consider the determining factors of compensation.

14. In changing times the Islamabad Capital Territory Local Government Act, 2015 has been notified in order to establish an elected local government system to cater political, administrative and financial responsibility in order to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level, therefore, the functions of CDA have been curtailed only to the extent of Sections 11 and 12 of Planning and Development of Master Phase Programme in terms of Sections 11, 12 and 13 of the Ordinance, 1960. Whereas, all municipal functions have been vested to the Local Governments as referred in Section 3 of the Islamabad Capital Territory Local Government Act, 2015. The Union Councils as well as Municipal Corporation Islamabad s jurisdiction and powers have been explained in this law in terms of Sections 70, 71, 72, 73, 74 and 75 in detailed manner. The functions of Union Council as well as MCI have been provided in detail in the Second and Third Schedule of the law. In particular the Second Schedule prepared in terms of Section 71 acknowledges the following clauses (d) and (e):- (d) maintain rural water supply schemes and public sources of drinking water, including wells, water pumps, tanks, ponds and other works for the supply of water and open drains; (e) coordinate with the community organizations for proper maintenance of rural water supply schemes and sewerage in the prescribed manner;

15. Similarly, third schedule, which deals with the functions of Metropolitan Corporation, acknowledges the following concept relating to the water supply under clauses (d), (k), (t) and (x):- (d) develop integrated system of water reservoirs, water sources, treatment plants, drainage, liquid and solid waste disposal, sanitation and other municipal services; (k) provide, manage, operate, maintain and improve the municipal infrastructure and services, including (i) water supply and control and development of water sources; (t) collect approved taxes, fees, rates, rents, tolls, charges, fines and penalties; (x) develop and manage schemes;

16. In the Fourth Schedule, which deals with the Local Government Taxation, Union Council can levy certain taxes in terms of Section 88 of the Act, 2015 whereby the Fourth Schedule acknowledges the following:- Part-I Taxes and other levies by Union Councils (4) Rate for the execution or maintenance of any work of public utility like lighting of public places, drainage, conservancy and water supply operated by union council. (5) Community tax for the construction of public work of general utility for the inhabitants of the union. (6) Fee for licensing of professions and vocations as prescribed. (7) Any other tax or levy authorized by the Government. Part-II Taxes and other levies by Metropolitan Corporation (1) Water rate. (3) Conservancy rate. (6) Fee for licenses, sanctions and permits. (16) Water conservancy charge from the owner or occupier of a house or any other building, except an educational institution having a swimming pool with a minimum surface area of 250 square feet.

17. The Ninth Schedule in terms of Section 121 of the Act, 2015, deals with the powers of Local Governments. At serials Nos. 69 and 70 highlight the concept of water supply and private source of water supply functions in the following manner:-

69. Water supply.- (1) A local government shall provide or cause to be provided to its local area a supply of wholesome water sufficient for public and private purposes. (2) Where a piped water supply is provided, the local government shall supply water to private and public premises in such manner and on payment of such charges as the bye-laws may provide.

70. Private source of water supply.- (1) All private sources of water supply within the local area of the local government shall be subject to control, regulation and inspection by the local government. (2) No new well, water-pump or any other source of water for drinking purposes, shall be dug, constructed or provided except with the sanction of the local government. (3) A local government may, by notice, require the owner or any person having the control of any private source of water supply used for drinking purposes (a) to keep the same in good order and to clean it from time to time of silt, refuse and decaying matter; (b) to protect the same from contamination in such manner as the local government directs; and (c) if the water therein is proved to the satisfaction of the local government to be unfit for drinking purposes, to take such measures as may be specified in the notice to prevent the use of such water for drinking purposes.

18. While going through this entire detailed structure provided in the Local Government there is no cavil that water is a basic source of life and every living being requires the same, therefore, it has its own importance, therefore, the same has to be seen under the constitutional framework where Article 155 of the Constitution of Pakistan, 1973 empowers Council of Common Interests to deal with the matter of water supplies and in case of any issue relating to the natural source of supply or reservoir have been or are likely to be affected prejudicially among the province of the Federal Capital or Federally Administered Tribal Areas in respect to use and distribution of control over water from that source a complaint in writing be entertained by the Council, therefore, Article 155 read with Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law confirms that such an important element of life is to be treated as property of the State. In the larger scope I have attended the WAPDA Act, 1958, which provides a comprehensive plan for the development and utilization of the water and power sources of Pakistan on a unified and multipurpose basis and schemes have to be provided for irrigation, water supply and drainage, recreational use of water resources, power generation in terms of Section 8 of the WAPDA Act, 1958 and in terms of Section 11 of the WAPDA Act, 1958 WAPDA being an authority shall have the control over the underground water resources of any region in a province. Such aspect further strengthens the idea of ownership, which has been vested to the State and then to the Authority constituted under the law. This Court is mindful of the fact that Section 7 of the Easements Act, 1882 highlights the concept of right of every owner of land to collect and dispose of within his/her own limits of all water under the land which does not pass in a defined channel, therefore, the concept of water rights have to be seen in terms of usufructurary right in terms of public interest doctrine. Despite several provincial and federal statutes and policy guidelines for water regulation across the country, still there is an ambiguity that how underground water shall be treated in Pakistan. Water is used as a commodity and not as a common source. The bottled waters and private commercial extraction of water can tear the towns apart. For State, protection of its public interest comes first and it is the duty of the state to protect its resources in public trust. Whether water is a property, this question seems very unsettled. Water is a public want, therefore, its nature is quasi property.

19. The public trust doctrine, originating from ancient legal principles, empowers sovereign states to safeguard and preserve natural resources. Dating back to ancient Rome, this doctrine regards flowing water, as to the air we breathe and the sea, as a shared resource. Resources that belong to public must be protected including water. (Kanner, Allan. The Public Trust Doctrine Duke Environmental Law and Policy Forum, vol. 16, iss.

1. Fall 2005 at 61 and 62). Under this doctrine the public interests come before private interests.

20. In terms of water, public trust authorizes the state to protect the navigable water. In 1970, Joseph Sax wrote an article on public trust, urged the Courts to protect the water from environmental toxins and privatization. Although, groundwater itself may not be classified as "navigable," it is frequently linked to navigable surface waters. Consequently, excessive pumping of an aquifer can result in a decline in the water levels of connected surface water bodies and alterations in water flow patterns. With the increased global population, the demand of water is increasing potentially. Underground water resources are limited and managing groundwater under a statewide commons and public trust framework is paramount.

21. Water is an essential resource upon which all life depends, navigable waterways, tidal areas, shorelines and stream beds cannot be held exclusively in private hands, but are impressed with the jus publicum, the public right. Water is to be treated as a public common trust, and must not be considered a commodity. Private companies and individuals consider their birthright to extract underground water via pumping and sell it commercially.

22. The Public Trust Doctrine borrows its basic construct and some of its tenets (though not all) from the private trust law. Just like private trust latter it involves three elements: a trustee, a beneficiary and trust property. Here, the trust property consists of natural resources. The government is their trustee and must manage them subject to fiduciary duties for the benefit of both present and future generations who are the beneficiaries of the public trust. As in the private trust context, the trustee of the public trust must adhere to both substantive and procedural duties. The former includes: (i) the duty of protection; (ii) the duty against waste; (iii) the duty to maximize the value of trust resources; (iv) the duty to restore trust resources when damaged; and (v) the duty against privatizing trust resources. On the other hand, procedural duties are: (i) the duty of loyalty; (ii) the duty to supervise agents; (iii) the duty of good faith and reasonable care; (iv) the duty of precaution; and (v) the duty to furnish information to beneficiaries.

23. The international environmental law recognizes public trust doctrine. Reference may be made to Principles 2 and 3 of the Stockholm Declaration, 1972 which read as under: Principle 2 The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. Principle 3 The capacity of the earth to produce vital renewable resources must be maintained and, whenever practicable, restored or improved.

24. In several states of USA water is treated as State Authority. For instance, the constitution of Colorado has settled the laws of water in its constitution. Const. Art. XVI, sec. 5 says, the property of the state, and the same is dedicated to the use of the people of the state, subject to appropriation. The Supreme Court of California imposed it in National Audubon Society v. Superior Court (the Mono Lake case)1 that the government has a responsibility to protect important natural resources like rivers and lakes, as well as the land around them. This responsibility is called the "public trust." It means that nobody can claim exclusive ownership or control over these resources in a way that harms the public's interests. So, the government makes sure that everyone can benefit from these resources fairly and responsibly.

25. In 2000, the Hawaii Supreme Court issued a trailblazing decision that strengthened the function of the public trust doctrine as it relates to water resource protection. The court confirmed that the doctrine applies to the protection of all water resources finding no distinction between groundwater and surface water resources. (See Hawaii Const. art. XI, 1; Haw. Const. art. XI, 7)

26. Similarly, in In Nebraska, groundwater is not subject to private ownership; rather, it is owned by the state for the benefit of the public. In its 2005 opinion in Spear T. Ranch v. Knaub2, the Nebraska Supreme Court summed up these provisions to conclude that ● [a] right to appropriate surface water . . . is not an ownership of property. ● Instead, the water is viewed as a public want and the appropriation is a right to use the water.

27. The distinction is quite clear, that rights to water have always been recognized as usufructuary a right to use but not outright ownership in the corpus of the water in situ. Spear T case has made the distinction between right to use water and ownership of water very clear. Given the usufructuary nature of water rights, appropriators expectations of exclusive enjoyment are far less than those of landowners. And court rejected the property claim of Spear T for pumping the underground water.

28. In June 2008, after the town of East Montpelier successfully stalled plans to commercially bottle and sell its groundwater, Vermont successfully established groundwater as a public trust resource. This law recognized that the groundwater of Vermont is a precious, finite, and invaluable resource upon which there is an ever-increasing demand for present, new and competing uses. [See Vermont Statutes online: Title 10: Conservation and Development, Chapter 048: Groundwater Protection cite as 10 V.S.A. 1390(5), 1390 (2), 1417 (a)] What the courts held is that, no one can claim water as their property and it is treated and protected under public trust by the State. It is legally defensible because this right to property in water cannot be claimed against the state. Citizens have the right to appropriate the water which gives water perhaps a quasi-property nature (not a property) because of physical limitations of water and it is not transferable. [See, Is water a property? (2007)] supra.

29. The internationalization of doctrine of public trust has been recognized by Indian Courts as well. Supreme court of India in 1997 decision in M.C. Mehta v. Kamal Nath (1997) 1 S.C.C. 388 (1996) (India) which involved the proposal of Span Resort to blast and reconstruct the riverbed of the Beas River to redirect the river to avoid flooding that threatened its resort. The resort had a ninety-nine-year lease of government land in a protected forest to build a motel and ancillary facilities along the river. The court said the doctrine was part of Indian law because Indian jurisprudence was inherited from English common law which restrict the aesthetic glory or natural resources, the environment, and the ecosystems of our country . . . [from being] eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good in the public interest to encroach the said resources.. and ultimately declared that public trust is the law of the land .

30. In M.I. Builders Private Ltd. v. Radhey Shayam Sahu, (1999) 6 S.C.C. 464, 466 (India) the court invoked the doctrine in enjoining the construction of an underground shopping complex within a public park. The court further ordered restoration of the park by the builder. The court agreed with a state high court that the public trust doctrine protected the park, and it was entrenched in Article 21 of the Constitution, which declares that no person shall be deprived of his life or personal liberty except according to the procedure prescribed by the law . Moreover, In Fomento Resorts and Hotels v. Minguel Martins, (2009) I.N.S.C. 100, para. 36), the Indian Supreme Court made clear that although the trust doctrine was constitutionally required; The Indian society has, since time immemorial, been conscious of the necessity of protecting the environment and ecology. The main moto [sic] of social life has been to live in harmony with nature [The] preachings [of sages and saints of India] . . . are ample evidence of the society s respect for plants, trees, earth, sky, air, water and every form of life The children were educated . . . about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora [,] fauna [sic] and every species of life .

31. The public trust doctrine in Canada has roots in public access disputes, cases based on claims of public nuisance for obstructions to navigable waters and public highways, and sometimes, on dedications by grant or prescription. Following three recent decisions have explicitly endorsed public trust principles. In the Labroad Inuit Ass n v. Newfoundland, [1997, 155, Nfld and P.E.I.R, 93 (Cand.)] Newfoundland Court of Appeal, while endorsing protection of future generations, as well as the precautionary principle, the court stated: If the rights of future generation to the protection of the present integrity of the natural world are to be taken seriously, and not to be regarded as mere empty rhetoric, care must be taken in the interpretation and application of legislation. Environmental laws must be construed against their commitment to future generations and against a recognition that, in addressing environmental issues, we often have imperfect knowledge as to the potential impact of activities on the environment. In Prince Edward Island v. Can. (Minister of Fisheries and Oceans), [2005] 256 Nfld. and P.E.I.R. 343, para. 6 (Can.)] the court explained that if a government can be sued: as guardian of the public interest, to claim against a party causing damage to that public interest, then it would seem in another case, a beneficiary of the public interest ought to be able to claim against the government for a failure to properly protect the public interest . . . [because] [a] right gives a corresponding duty

32. Pakistan s public trust doctrine seems to be embedded in Article 9 of the Constitution. Although neither the constitution nor Pakistan statutes expressly mention the public trust, the Supreme Court of Pakistan has concluded that the Article 9 guarantee of life includes environmental health and has issued protective orders to both private and government entities. Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited (2005 CLC 424) was the first case in Pakistan in which the Sindh High Court applied the Public Trust Doctrine directly. The defendant, a multinational company, started construction of a water bottling plant close to Karachi aimed at saving transportation costs in supplying bottled water to the city by tapping into and making free use of the sub-soil water/acquifier underlying the land reserved for establishing health and educational institutions to be termed as "Education City". The defendant inter alia contended that under Section 7 of the Easements Act, 1882, every owner of land had absolute right to enjoy and dispose of his immovable property. There was no law for the time being in force in Pakistan prohibiting it from using the sub-soil water by installation of tube-wells in its own land and extract any amount of water that it required. The Court rejected the contention holding as under: "No civilized society can permit unfettered exploitation of its natural resources by anyone particularly in respect of the water which is a necessity of the life. Ground water is a national wealth and belongs to entire society. It is a Nectar, sustaining life on earth and without water, the earth would be desert...It is well-settled that natural resources like air, sea, waters, and forests are like public trust. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status. 'Doctrine of Public Trust', as developed during the days of ancient Roman Empire, enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.

33. Similarly, in Moulvi Iqbal Haider v. Capital Development Authority and others (PLD 2006 SC 394) the petitioner challenged the construction of a golf course on a public park. The Supreme Court of Pakistan declared this conversion illegal on the ground that it violated fundamental rights guaranteed by the Constitution. It held: "... Jubilee Park was earmarked in the original scheme of Sector F-7. It was meant for low-income group, who are deprived of the benefits of having their own private gardens, comparing to higher income groups, therefore, converting such park for commercial activity with the collaboration of multinational companies would deny the rights guaranteed to them."

34. In Muhammad Tariq Abbasi and others v. Defence Housing Authority and others (2007 CLC 1358) the Defence Housing Authority converted an amenity plot reserved for park near the Clifton Beach and used it for construction of a multistoried official complex and a residential tower with a shopping mall. The petitioners impugned the project, amongst others, on the ground that it would be detrimental to the interest of the general public as it would deny them easy access to the beach. The Sindh High Court upheld this contention and ruled: "The Hon'ble Supreme Court in the case of Ardeshir Cowasjee v. KBCA (1999 SCMR 2883) and Moulvi Iqbal Haider v. CDA (supra) has recognized that the right of access of public-at-large to parks etc. is a fundamental right guaranteed under Article 9 of the Constitution as it can be equated to the right to life provided for therein .The doctrine of public trust has long been recognized all over the world which enjoins the State to preserve and protect the public interest in beaches, lakeshores etc. ... This Court in the case of Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited (2005 CLC 424) has recognized the public trust doctrine extending to natural resources, viz, air, sea, water and forests, which being a gift of nature should be made freely available to everyone irrespective of status."

35. In a very recent DB s judgment Mian Muhammad Asif v. Superintendent of Police and others (PLD 2020 Lahore 137) by Lahore High court, the above-mentioned all the case laws are endorsed based on the Doctrine of Public Trust whereby the petitioner owns a brick kiln near Raiwind, Lahore, operating under the name Ch. Pervaiz Bricks Company. He claims to have adopted environmentally friendly Zigzag technology. Purchasing earth from a location near Raja Jang, Kasur District, for brick production, the petitioner alleges that the local police unlawfully halted transportation, causing a halt in business. Seeking relief under Article 199 of the Constitution of Pakistan, the petitioner requests a writ of prohibition against the Station House Officer (SHO) to cease interference in their lawful business operations. 40 The link between basal view of sustainable development and the PTD is through the latter's protection of resources for future generations of trust beneficiaries. By mandating the governmental trustees to treat the interests of current and future citizens equally, the notion of intergenerational equity is inherent to the PTD As discussed above, the Public Trust Doctrine historically applied to a limited set of natural resources but it has been expanded over time. In Borough of Neptune City v. Borough of Avon-By-the-Sea, [(61 N.J. 296 (1972)], the Supreme Court of New Jersey ruled that "the public trust doctrine should not be considered fixed or static, but should be moulded and extended to meet changing conditions and needs of the people it was created to benefit."

45. Brick kiln owners excavate soil with impunity. More often than not the entire layer of topsoil is dug out which has serious repercussions. The fertility of that particular piece of land is reduced and irrigation of the neighboring plots is adversely affected. This leads to desertification and low agricultural yields which eventually impact our country's food security. Besides, it contributes to environmental degradation and climate change. In the circumstances, the Public Trust Doctrine can legitimately be extended to soil.

36. Cutting of Trees for Canal Widening Project Lahore (2011 SCMR 1743) Suo Motu case No. 25 of 2009 , the Hon'ble Supreme Court held that green belt around both sides of the canal is a public trust resource and cannot be converted into private or any other use other than public purpose. Therefore, question one stands resolved in terms that water being a public trust is State s property and it is the duty of the State to regulate the water consumption by citizens for which it needs to develop water regulating policies.

37. To answer the second question I have gone through the above background and international concept with reference to the water I have also attended the proposition in light with the report submitted by the Pakistan Environmental Protection Agency for conservation of water who has submitted its report in compliance of order, dated 13.09.2022, which are as under:- Major Drinking Water Resources in Islamabad Capital Territory (CT) i. The Capital Developmental Authority CDA at present supplies 61.15 MGD (as of 09- 02-2023) water against the total demand of 110 MGD to the residents of Sectorial Areas and Model Villages of Islamabad on daily basis in accordance with the prescribed schedule from surface as well as ground water sources. ii. The surface water sources are Simly Dam, Khanpur Dam, Korang, Said Pur, Noor Pur and Shahdara Water Works and ground water source is Tube Wells scattered all over Islamabad. The Simly Dam is the largest reservoir of drinking water to people living in Islamabad. The water stored in this dam is fed by the melting snow and natural springs of Murree hills. It was developed by the CDA. AS per present water sources the available water in the CDA Administered Area is 70 MGD. iii. The capacity and production comparison details of water resources are as under: Capacity Production (09-02-2023)

1. Simly 39.00 (MGD) 20.00 (MGD)

2. Korang 2.40 0.00

3. Saidpur 0.80 0.50

4. Shahdara 1.60 1.00

5. Noorpur 0.70 0.50

6. Tube wells 38.00 28.15

7. Rawal Dam 2.00 2.00

8. Khanpur Dam 16.83 9.00 Total 101.33 61.15 Water Supply Responsibilities of CDA i. In Islamabad, CDA Water Supply Directorate is responsible for production, treatment, conduction and distribution of potable water from different surface as well as ground water resources to the consumer end. ii. Water is supplied to the city through, Simly and Sangjani Water Treatment Plants, Shahdara, Saidpur, Korang and Noorpur Water Works, Poona Faquiran Augmentation Scheme and almost 200 Tube Wells and right now 185 are functional. After extracting water from the ground sources, water through the tube wells, before supplying to the consumer end, the water is disinfected by Chlorination. iii. The CDA, Water Quality Control Cell, monitors the quality of water round the clock from the source to the consumer end and also cross checked from an independent organization i.e. PCRWR for chemicals and bacteriological parameters according to the WHO Standards/Guidelines. Pak EPA also monitored the reservoir and CDA supply water quality. iv. At present the total demand of water in the Sectorial Area including Model Villages of Islamabad i.e. in CDA's jurisdictional area is 110 MGD. The demand supply gap has become due to ever increasing population and massive development work in the Federal Capital as no perennial source of water has so far been constructed. Challenges for Safe Drinking Water in Islamabad Urban and Rural Areas i. The water challenges in Islamabad have been increased due to wastage of rainwater and horizontal expansion of the capital city', over-abstraction of groundwater resources, poor water supply, sanitation issues, and unsustainable use. The CDA water supply is unavailable for housing societies, unplanned or semi urban areas (Tarnol, Golra etc) and rural areas.The water supply in rural areas is being managed by Local Government & Rural Development Directorate, ICT Administration. Mostly in these areas ground water extraction is the only and common for household level consumption, private tankers network are mobilized and fulfilling the domestic water consumption on demand. ii. In many areas of Islamabad ground water used for multiple commercial activities like services station, industrial use, hotels and restaurants. Initially, in housing societies, commercial plazas, and hospitals, water was extracted for construction purposes only but after that, they used it for permanent consumption. iii. The scarcity of water especially potable water has remained a major predicament towards opening new sectors in Islamabad. Yet, undeterred by the water shortage, the population of the city is growing at a rate of 5.7 percent per year aggravating the water shortage. The present population of 1.757 million is likely to increase to 4.443 million in 2050 ([WMI). iv. In Islamabad, the main sources of water are, the reservoirs built at Simly and Khanpur and tube wells, as water aquifer in the Capital Territory is shallow and scattered. Islamabad faces major crunch during summer season and pre-monsoons, when water rationing is imposed; people through the complaint centers, clamor for water tankers, an arrangement which CDA cannot meet adequately. As Water Management Wing, CDA has prime responsibility to provide water to its habitants for various purposes. Water supply in adequate quantity has become a challenging factor due to rapid population, increased usage of water, industrialization and many other reasons. Being a metropolitan agency of the Capital, CDA is responsible for water resource management including groundwater recharging. v. It is necessary to protect the natural resource and prevent it being depleted or causing adverse impact such as loss of water supply reduced base flows in rivers and streams and changes to water quality / saline intrusion. Steps Taken by the Pakistan Environmental Protection Agency for Conservation of Water and in Compliance of Orders dated 13-09-2022 That the Director General, Pak-EPA as a member of commission constituted by the Hon'ble Supreme Court of Pakistan in SMC 26/2018 inspected the water bottling companies across the Pakistan which were extracting the water from ground including industry in Islamabad. It is worth mentioning here that Pak-EPA has not the adequate human resource to enforce the provisions of Pakistan Environmental Protection Act, 1997 to stop such kind of illegal activities. I) Conservation of Ground water: a) Pumping water out of the ground faster than it is replenished over the long-term causes similar problems. Groundwater level is decreasing in many areas of the Islamabad in response to massive ground water pumping. Pak-EPA team inspected thoroughly the various car service stations located in the Territorial Jurisdiction of ICT, and stopped ground water using process and suspended their operational activities, Pak EPA also issued Environmental Protection Order(s) on 05.07.2019 and 08.08.20219 to six (06) service stations. b) Pak-EPA inspected the Messrs Ora Pure (RO) plant dated 22-12-2021. However, EPT allowed the operation by suspending EPA's Environmental Protection Order (EPO). Pak-EPA also sealed the bore water plant which was also extracting the ground water for commercial/selling purpose on 22-06-2022 and after hearing version of the owner by serving the Environmental Protection Order(s) on the same date. II). Illegal Water Hydrants for water supplying a) It is observed in EPA's routine monitoring that there are several illegal water hydrants small units of bottling water which are operational in the rural areas of ICT, and Sector G-11, which are extracting ground water and selling it at commercial level. Dozens of illegal water hydrants are operating neither registered, licensed nor authorized by any Government Authority, or Department. The instant W.P has been filed by the owners of water boring plants (Tanker Mafia) when Pak-EPA started action against the unauthorized water boring plants situated at Budhana Kalan, I-16, Islamabad by stopping the operation of two water boring plants on 22.06.2022. b) More than 30 service stations were sealed by the ICT Administration on 15 September, 2022 in compliance of the verbal directions dated 13-09-2022 issued by the Hon'ble Chief Justice, Islamabad High Court in W.P 4044/2021. III) Water quality Surveillance of ICT a) In routine monitoring Pak-EPA collected water samples from reservoir, water filtration plants, water supply, Nullahs, industries and tested in EPA's lab. In 2021, Pak EPA made detail report on 10 nullahs located along with Slum or Kachi Abadis in Islamabad. Pak-EPA was the part of WHO integrated Global Survey on ESBL-producing E, coli using a one health approach, "the tricycle project" in 2018 for Tricycle Surveillance Project Assessment, EPA selected the different water sampling sites and collected water samples for analysis from various Upstream, Down up-stream, Vet markets/poultry markets and STPs. IV) Water Conservation in Industries and housing Societies: a) Steel furnaces/rerolling are using recycled and reused water. Many industries use Effluent Treatment Plant (ETP) and treated water which is being used for domestic/washing purpose. Many housing societies also installed Sewage Treatment Plant (ILS) and treated water for horticulture and cleaning purpose that ST part of their environmental approval(s). b) Furthermore, preliminary consultative meeting was also chaired at the Director General, Pak-EPA held on 28th September, 2022 at 10:00 am at Pakistan Environmental Protection Agency with ICT administration and Capital Development Authority (CDA) for conservation of water, management, rehabilitation and action plan for the conservation of water. In pursuance to the above water conservation steps taken by Pak-EPA and ICT Administration and based on the Pak-EPA report it can be safely said that there is a scarcity of water in several areas/sectors of ICT and the underground water level is not uniform throughout. Thus, to fulfil their fundamental needs people are forced to buy water from private water hydrants and tube wells, at commercial rates. Since it is settled now that water is the State s property, the state must regulate water consumption and fulfil the basic needs of citizens either by itself or by appointing/authorizing private individuals, which require a proper water licensing regime first.

38. Now adverting towards the important question as to whether the MCI or Union Council in Islamabad Capital Territory has ever issued any license for extraction of water on commercial basis or for supply of the water through tankers, the answer is in negative. But the overall study and legal research discussed above permits the local government to impose the water charges in terms of subsection (5) of Section 88 of Chapter X of the Islamabad Capital Territory Local Government Act, 2015. However, in order to fulfill the requirements of law for imposing the charges of the water supply or levy of tax or license fee in terms of commercial businesses or licenses the powers could be exercised subject to approval of the Government though in terms of Section 88 (3) of the Islamabad Capital Territory Local Government Act, 2015, the Government shall vet the tax proposal within the thirty days from the date of receipt of the proposal failing which it shall be deemed to have been vetted by the Government , therefore, the local government after getting the proposal from the government may also require the publication of tax proposal in writing, conduct public hearings on the objections and subject to the provision of the Act, 2015 made by notification levy any tax, rent, toll, charge or surcharge specified in the fourth schedule. Hence, it can easily be assessed that tax or fee or levy could be imposed on water supply business, therefore, the Administrator, MCI has been called who stated at the bar that due to this chronic litigation and issue of public importance the MCI has processed the case for imposition of property tax and water conservancy charges and solid waste management fees summary has been referred to the Ministry of Interior Government of Pakistan vide letter, dated 15.01.2024 and even prepared the notification, dated 23.01.2024, which is as under:-

39. The above mentioned draft notification has not yet been notified as it requires approval of the Government and at present the Local Government and Assemblies are not in session and the Federal Government is in process of changing guards? Therefore, the Administrator as well as the learned Law Officer claim that after approval of the notification all the individuals, companies who are running water supply business through an unregulated concept including water tanker, commercial water extraction from commercial basis be charged accordingly. This aspect, prima facie, resolved at least a basic question of a licensing regime, which was not earlier enforced for all such water supply businesses in ICT, as now in place.

40. In view of the above background, the captioned writ petitions stand disposed of with the direction to the Federal Government to decide the pending approval submitted by the MCI for levy of tax charges and license fee for water supply in ICT within the period of next 45 days. The Secretary, Ministry of Interior shall submit a compliance report before this Court accordingly. The MCI shall notify the charges within 15 days after approval of the Federal Government. MCI shall also initiate licensing regulatory mechanism for every applicant who intends to initiate a business of water supply subject to the law notified and applied in prescribed manner and every such application shall be decided within the period of 10 days by all means in which the MCI or the Union Council authorities shall visit such water extraction source and may prescribe standard for safety and protection as required. At last the MCI and all other authorities including ICT, administration are also held responsible to regulate the pricing mechanism in which the commercial hydrants shall not be allowed to extract unlimited water from the underground water table, which may affect the individuals, families who have their own water bores for housing and family use and if any area has been dried up for underground table of water the prescribed measures may also be adopted including but not limited to suspension of license, sealing of hydrants and water extraction authorities may fix time for water usage. Such measures are to be adopted only with intent to protect the public interest by all means. However, till the issuance of license the Administrator MCI shall receive the interim applications from public, individuals including the petitioners or respondents as the case may be and may grant the permission for interim period after obtaining any guarantee with restrictions. However, such interim permissions shall not continue after 45 days by any all means and stand cancelled automatically. Notwithstanding, the above observation the respondent Authority shall also frame the regulations with reference to the water source, which has been used for extraction and commercial licensing/business subject to approval and environment impact study conducted by the Pakistan Environmental Protection Agency, inter-se distance between two commercial hydrants while considering the vicinity/neighborhood population of the area. The minimum restriction be imposed on number of tube wells and before issuing any license objections should be invited from the general public of the area where commercial tube wells would likely to be allowed for running of business so that individuals, housing unit and families are not affected and in this regard, appropriate measures be also adopted in future. MH/48/Isl Order accordingly. 1 National Audubon Society v. Superior Court, 658 P. 2d 709, 727 (1983). 2 269 Neb. 177, 186, 691 N.W.2d 116, 127 (2005).