2021 PLP 1801 (CLC)

RASHIDA ASAD, J.

Through instant petition, the petitioners seek following relief(s):- a) Declare and hold that the charging/enhancement of "Water Rates" by AWBs without the formal sanction of the Regulatory Authority and without the promulgation of any Rules or Regulations, is clearly arbitrary, illegal, void ab-initio and of no legal effect; b) Declare and hold that SIDA is functioning as its own Regulatory Authority which is a clear situation of conflict of interest, against the principles of natural justice and thus, a clear breach of the rights guaranteed under the Constitution; c) Permanently restrain the respondents, their officers and agents from forcing any unilateral and unreasonable enhancement of "Water Charges" without due process of law; d) Restrain the respondents from adopting any coercive measures against the petitioners; e) Direct the respondents to refund any amounts recovered by them from the petitioners under the garb of enhanced water charges; f) Grant costs and special costs; g) Grant any other relief deemed appropriate under the facts and circumstances of the case.

2. Petitioners case, precisely, is that they being Mills are working and operating in various parts of the Province of Sindh. All the water resources including canals and drains in the province of Sindh are under the overall control of Irrigation Wing of the Irrigation and Power Department of Government of Sindh under Sindh Irrigation Act, 1879 (the Act) and Sections 27 and 44 of the Act deals with supply of water and rates thereof. That under the Sindh Water Management Ordinance, 2002 ("Ordinance"), previously Sindh Irrigation and Drainage Authority Ordinance, 1997, various Area Water Boards and fourteen (14) canals were created in province of Sindh. Out of fourteen canals, four canals arc being managed by the respective Area Water Boards while ten canals are directly managed by the Irrigation Department, Government of Sindh. That in respect of 10 canals, consumers using water for irrigation purposes are charged "Aabiyana" whereas non-irrigation consumers pay "Water Charges", which were recovered by the Irrigation Department, Government of Sindh. Charges in respect of four (4) canals were recovered by Area Water Boards; that the rates of "Aabiyana" have remained constant across province of Sindh though charged by Irrigation Department or by the Water Boards. Similarly, for ten (10) canals the rates of "Water Charges" @ Rs. 1.00 per 1000 gallons) have also remained constant across the province of Sindh. In the past Water Boards were also recovering "Water Charges" from the petitioners' Mills at the rate of Rs.1.00 per thousand (1000) gallons. That Area Water Boards suddenly, acting in a highly illegal manner, enhanced the water rates from Rs.1.00 per thousand (1000) gallons to Rs.10.00 per thousand (1000) gallons, however, such revised rates were subsequently withdrawn. The petitioners' further case is that respondents have again enhanced the water rates from Rs.1.00 to Rs.3.00 per thousand (1000) gallons, thus, affecting three times increase without any justification. Being aggrieved by aforesaid illegal increase/recovery of water charges, on 20.09.2013 the petitioners submitted representation to respondent No.1, to interfere into the matter and restrain Area Water Boards from such alleged illegal acts, which was forwarded to respondent No.2 for taking immediate action in the matter and furnishing the detailed report within three days. However, no further action has been communicated to the petitioners while respondents are pressing hard for the recovery of illegally enhanced water charges, hence, this petition.

3. Learned Counsel for petitioners contended that it is imperative for the Government to act fairly and reasonably in its relation with public in the matters of contract; and if at all the Government functionaries are allowed to exercise their discretion in some matters it must be exercised equitably and evenly; that the Area Water Board enhanced the water rate from Rs.1 per thousand gallon to Rs.10 per thousand gallons without any notice to the petitioners and so also without any legislation to this effect, however, such rates were subsequently reduced to Rs.3 per thousand gallons through Notifications dated 08.02.2010, 21.11.2013 and 03.12.2012 respectively, for which the petitioner sent a legal notice to the Secretary Irrigation and Power Department, Government of Sindh, Karachi on 20.09.2013 and in response to the legal notice, Section officer (IRC) called comments from the Manager Director, Sindh Irrigation Drainage Authority, Bank Barrage Colony, Hyderabad but this order was not complied with by Sindh Irrigation and Drainage Authority, Hyderabad; that even contractual obligation can be enforced through Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Lastly, learned Counsel has reiterating the same facts and grounds, which he has urged in his memo of petition and prayed for grant of the petition.

4. In contra, learned Counsel for respondents Nos.2 to 5, repudiated the arguments of learned counsel for petitioners also raised legal objections that this petition is a hyper-technical effort to wriggle-out of contractual liabilities, therefore, the same is not maintainable; that even otherwise, the jurisdiction of this Court is barred under Section 34 of Arbitration Act, inasmuch, in terms of Clause-13 of Bulk Water Supply Scheme, any dispute arising between the parties shall be referred for arbitration to the Director of the Left Bank Canal (AWB), Badin. He further added that this Court has no jurisdiction to interfere in the policy matters unless the same are without any legal authority; that the petition is badly hit by laches as the petitioners have agitated the water rates determined in the years 2010 and 2011; that the petition essentially involves disputed questions of fact, inasmuch, the petitioners have alleged that the petitioners were forcibly joined in Bulk Water Supply Agreements; that the petitioners have come to this Court with unclean hands and are guilty of concealing relevant facts from this Court, hence, no discretionary relief could be granted in their favour. Lastly, learned Counsel has prayed for the dismissal of instant petition.

5. Learned Assistant Advocate General, Sindh argued that the petition is not maintainable as there was an agreement between the parties called as Bulk Water Supply Agreement and according to clause 13 of that agreement, if any dispute, question, difference or objection with regard to rights, duties or liabilities of either party, whatsoever, arises between the parties, the matter shall be referred for arbitration to Director of the Left Bank Canal (AWB) Badin, therefore, the contractual obligations and disputes could not be redressed through writ petitions and if redressed the same, then it would defeat the very purpose of law.

6. We have heard the learned Counsel for the parties at a considerable length and have gone through the documents with their able assistance.

7. From the perusal of record and the arguments advanced on behalf of respective parties, it is clear that there is only dispute of enhancement of water charges between the parties as mentioned supra emanating from contractual obligations tied by Bulk Water Supply Agreement and clause 13 of the agreement deals with resolution of disputes arising from the said agreement. For ready reference, it would be advantageous to reproduce the relevant portion of said clause, which reads as under:- "

13. If any question, difference or objection what so ever shall arise in any way connected with or arising out of this instrument or meaning or operation or any part thereof, or the rights, duties or liabilities of either party, then save in so for as the decision of any such matter is herein before provided for and have been finally decided according or whether Agreement shall be terminated and the rights and obligations of the parties a regular of such termination shall be referred for Arbitration to the Director of the Left Bank Canal (AWB) Badin, or his Successors and his decision shall be final and binding where the matter involves a claim for the payment or recovery or reduction of money only the amount if any awarded in such Arbitration shall be recoverable in respect of the matter so referred in this Agreement." From the bare, simple and plain reading of aforesaid clause, it is unequivocally clear that in case of any dispute arising between the Petitioners' Company and Government, the same shall be referred for arbitration to the Director of the Left Bank Canal (AWB) Badin, whose decision thereon shall be final and binding upon the parties.

8. During the course of arguments, while confronting the above clause of agreement between the parties, we have specifically asked the question from learned Counsel for petitioners whether any steps were taken for referring the dispute to the Director of the Left Bank Canal (AWB) Badin, to which learned Counsel has referred to a copy of Letter dated 20.09.2013 addressed to respondent No.1 (Secretary, Irrigation and Power Department, Government of Sindh) highlighting their grievances but in our view this letter does not seek or connote for any resolution for the breach of contract alleged against them. Moreover, the petitioners have not approached the proper forum for redressal of their grievances. Keeping in view of all these material defects and hurdles in the way of petitioners in enforcing their rights emerging from a contract it is not possible for this Court to give any relief to the petitioners by exercising jurisdiction under Article 199 of the Constitution, therefore, all the submissions made at the bar would remain only of academic interest. However, it can hardly be disputed by anyone that for a society which claims to be organized, civilized and law abiding, it is imperative to stand by its commitments, undertakings and to be honest and fair in its dealings. It is more so for the Government respecting rule of law not to discriminate between its citizens and its functionaries cannot be allowed to exercise discretion at their whims, sweet-will or as they please; rather they are bound to act fairly, evenly and justly.

9. The arguments so advanced by learned Counsel for petitioners that as the latest trend of Superior Courts in our country and also elsewhere is to enlarge the scope of judicial review, therefore, availability of alternative remedy or matter involving contractual obligations should not pose hurdle in exercise of power of judicial review under Article 199, is too wide and sweeping view. It is axiomatic principle of law that every case is to be adjudged on its own facts, circumstances and merits. If in a particular case both the parties admit the factual aspect which give raise to the dispute and the Court feels that the matter is of such an urgent nature that the very remedy would get frustrated if the aggrieved party is directed to seek redress through alternative remedy available under the law; then in that case it would be proper for the Court to entertain the Writ Petition. Similarly, if through alternative remedy an action/order of a lower authority is to be impugned before a higher authority at whose behest the action is taken or order is passed then that cannot be termed as an adequate and efficacious remedy so as to justify refusal of exercise of judicial review. If in every contractual matter giving rise to enforcement of contractual obligation or a dispute which can be redressed through other remedy available under the law Writ Petition is entertained, then this would defeat the very purpose of law for which competent Courts are established and vested with jurisdiction under the law. But we are of the considered view that present case does not contain issues of such urgency and/or exigency to call for interference through exercise of constitutional jurisdiction to circumvent contractual obligations.

10. Even otherwise, there is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and. the rights are governed only by the terms of the contract, no writ or order can be issued under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, so as to compel the authorities to remedy a breach of contract. In this context, we are fortified with the cases of Niazmuddin and another v. Civil Aviation Authority and 2 others reported as 2000 SCJ 36 and Project Director, Balochistan Minor Irrigation and Agricultural Development Project Quetta Cantt. v. Messrs Murad Ali and Company reported as 1999 SCMR

121. In view of the authoritative judicial pronouncements, instant petition is not maintainable. The Arbitrator can decide both the questions of facts as well as questions of law, when the contract itself provides for a mode of settlement of disputes arising from the contract, there is no reason why the petitioners should not follow and adopt that remedy and instead invoke the extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Even if, the liability is admitted by both the parties, this Court has no jurisdiction to entertain the matter.

11. Under the aforementioned facts and circumstances of the case, instant petition was dismissed through our short order dated 24.02.2021 and these arc the detailed reasons thereof. MH/M-52/Sindh Petition dismissed.