2002 PLP 459 (CLC)

The prayer sought in this petition was as under:‑‑ "(a) Declare that the order abrogating/annulling the sanction order of irrigation water of petitioner and other co‑owners having been passed without lawful authority and is of no legal effect. (b) Permanent injunction to be issued restraining the respondents from acting upon the abovementioned schedule/order and in any manner from interfering with the irrigation water supply to the land and crops of the petitioner. (c) Any other relief. (d) Costs. After disposal of the Constitutional petitions in the manner mentioned above the petitioner filed Miscellaneous Application No.542 of 2001, under Article 204 of the Constitution read with sections 3 and 4 of the Contempt of Court Act, 1976, with a prayer that properties of alleged contemners viz. concerned Executive Engineer, S. D.O. Sub‑Engineer and one Syed Mazhar Hussain Shah, be attached and they may be put in prison. It was further prayed that in the meanwhile they may be ordered to restore the direct outlet/watercourse of the petitioner. This miscellaneous application was heard by a Division Bench comprising Mr. Justice Shabbir Ahmed and Mr. Justice M. Mujeebullah Siddiqui. Division occurred in the Division Bench in the decision and, therefore, the matter was referred to me. Mr. M. Mujeebullah Siddiqui held that the application was misconceived and dismissed it with special cost of Rs.25,

000. Mr. Justice' Shabbir Ahmed observed that the mode of implementation/enforcement of order passed in Constitutional jurisdiction is through contempt proceedings akin to the provisions of Order XXI, C.P.C. and the position of the Bench was of an Executing Court. He is of the view that the application requires disposal on merits after hearing the parties. The Sindh Irrigation (Amendment) Ordinance, 1999 (VII of 1999) was under dispute in the petitions and its section 5(1) was found to be liable to be declared invalid. The Schedule annexed to the Ordinance under this section mentioned the sanction order in favour of this petitioner, though with an addition "Already cancelled". The proposition in the arguments of Mr. Jhamat learned counsel for the petitioner/applicant, is that since his sanction was mentioned in the Schedule under the section declared invalid, the alleged contemners were bound to restore his direct outlet/watercourse and, for not doing so, they are liable to punishment. Mr. Suleman Habibullah, learned A.A.‑G. supported the view of Mr. Mujeebullah Siddiqui, J. and submitted that, for the same relief, the petitioner/applicant had filed a civil suit, but since his application for interim injunction was not allowed in the suit, he attempted to get the relief through the present application. The question is whether any order or direction of the Court has been violated by the persons named in the miscellaneous application. The shorts order disposing of the petition and the prayer in the petition; reproduced in the first para. above, make it clear that the prayers were not granted. Clause (a) of Article 199(1) of the Constitution is the relevant provision under which the petition could be treated, although it was drafted like a civil suit under the Specific Relief Act. Under this provision, the High Court may either direct a person, in its territorial jurisdiction, performing functions in connection with the affairs of Federation, Province or local authority, to refrain from doing anything not permitted by law to do, or to do what is required by law, or the High Court may declare any act done or proceedings taken, by such person, to have been done or taken without lawful authority and that is of no legal effect. It is evident from the order disposing of the petition that no such direction was issued to the respondents or to the alleged contemners. It was, also, not declared that the order impugned through the petition was without lawful authority and of no legal effect. The order disposing of the petition was that section 5(1) of the impugned Ordinance, read with the Schedule, was repugnant to Article 25 of the Constitution and was liable to be declared invalid. It did not declare the section and the Schedule invalid. It was practically an advice to the main respondent viz. Province of Sindh through Secretary, Irrigation and Power ...' to act accordingly to repeal the said section. Other respondents, as well as the alleged contemners, had no role to perform and they were not authorized to deduce their own interpretations to act on the said order of the' Court. There is thus no violation committed by them rendering them liable to an action for contempt of Court. Another aspect of the case is that the miscellaneous application was filed under sections 3 and 4 of the Contempt of Court Act, 1976, but the action, sought through it, was one provided in Rule 2(3) of Order XXXIX, C.P.C. This action can only be taken in case of disobedience in respect of an injunction granted under Order XXXIX, Rule 2, C.P.C. There was, thus, no occasion for such an action. With these additional reasons, I respectfully agree with Mr. Mujeebullah Siddiqui, J., that the application for contempt of Court is misconceived and liable to dismissal. I am, however, unable to find a justification for imposition of special costs. The petitioner/applicant believed that he was granted relief sought by him as he was not aware of the legal technicalities. He filed an application under that belief. It cannot be inferred that his claim was false or vexatious to his knowledge. He is not, therefore, liable to pay special costs. Miscellaneous Application 542 of 2001 stands dismissed. Q.M.H./M.A.K./M‑245/K Application dismissed.