2022 PLP 29 (YLRN)

SALAHUDDIN PANHWAR, J.

Heard and perused the record.

2. Relevant facts are that respondent No. 1 preferred application under section 22-A subsection (6) sub-clause (3), Cr.P.C. against XEN of Karachi Water and Sewerage Board, Mukhtiarkar Ibrahim Hyderi and concerned SHO with regard to action against illegal hydrants/ R.O. Plants; such application was entertained and by order dated 22.10.2018 was allowed whereby property sealed on the direction of that department was de-sealed. Relevant paragraph of impugned judgment is that:--

5. Whereas the report of respondent No.1 submitted his reply through his counsel as under:- It is most respectfully stated for and on behalf of above-named respondent that the instant application is not maintainable and unwarranted under the law since the contents of the application are not supported the provision under which the applicant seek relief from this Honorable Court. If the applicant genuinely aggrieved by the act of the respondent then they may approach-High Court/Water Commission and/or Supreme Court. The applicant is misleading the story by concealing the material facts, hence not came to the court with clean hands. This Honorable Forum has no jurisdiction to direct other than police. Whereas the facts of the matter is that the Site was sealed/raided, dismantled/locked by the KW&SB and police and others were present for assistance of KW&SB without prejudiced the respondent above named humbly stated as following. That the raid was conducted at the site and subsequently registering, the FIR bearing No.329/2018 were according to the law and moreover the same as per the direction of Honorable Supreme Court of Pakistan as given in H.R.C. No.28963/2014".

6. Heard the parties counsel and have perused the material available on record. No doubt the Honorable Supreme Court of Pakistan in H.R.C. No.28963/ 2014 vide order dated 23-12-2015 issued the direction to Managing Director Karachi Water and Sewerage Board to ensure transportation of water shall be controlled by him as it administrative matter with the assistance of police and rangers if needed and the direction were given to KW&SB to submit policy of regulatory of supply in the city and such policy shall be furnished within two weeks from today but the respondent No.1 along with his objection not filed any policy. The Honorable Bench of Supreme Court while deciding the Human Rights Case in December 2017 was pleased to also given direction to functionaries of KW&SB to prepare uniform policy regarding utilization of Sub-Soil Water but the respondent No.1 failed to produce such policy meaning by that there is no uniform policy or no law for taking action against the use of sub-soil water or to purified sub-soil water.

7. The respondents Nos. 1, 2 and 3 in their separate reports/ objections have shifted the burden of dismantling the operation of water purification of applicant and installation of RO Plant and locking of the premises. The Mukhtiarkar in his reply has specifically alleged that the team of respondent No.1 and police of PS Sukhan has dismantled the installation fixed there and locked the premises, whereas the respondent No.1 in his reply stated that the site was sealed/dismantle by KW&SB and police, therefore the Ex-Officio Justice of Peace has no jurisdiction to direct other than police. I, regret such assumptions as the respondent No.1 neither produce any uniform policy of taking the alleged action nor produced any mashirnama in writing which could show that they acted legally though the directions were given by the Honorable Supreme Court time to time.

8. The police/SHO Police Station Sukhan has acted at the shoulder of respondent No.1, the Mukhtiarkar is denying for locking of the premises and have alleged on the part of police and respondent No. 1 with the assistance of respondent No.3 has locked the premises of petitioner without the proper sealing mashirnama and without any provision of law; the respondents have allegedly illegally harassed the petitioner. It is held in PLD 1969 Supreme Court (sic) that "The court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same". It is held in PLD 2016 Page 581 (sic) that "Ex-Officio Justice of Piece has ample power to entertain the matter relating to failure, the exercise power of police authority in relation to its duties." In the case in hand police had malafidely acted or exercise the powers of locking the premises of the applicant under the shoulder of respondent No.1, respondents illegally harassed the petitioner, therefore, the petition is hereby allowed, the respondent No.3 to unlock the premises of applicant in presence of Mukhtiarkar Ibrahim Hyderi. The respondents Nos.1 and 3 are restrained from illegal harassment to petitioner in any manner. However, the respondent No 1 is at Liberty to take action against the petitioner in accordance with law after preparation of uniform policy of using of sub-soil water/running of RO Plant as per direction of Honorable Supreme Court of Pakistan at any time. The petitioner to seek remedy of return of his articles secured in FIR No.329/2018 under section 430, P.P.C. of Police Station Sukhan from the court where the case is pending. The petition is partly allowed accordingly."

2. Learned counsel for applicant has referred order dated 23.12.2015 passed by apex Court in H.R.C. No.28963-S/2014 and others, which is that:-- "We have put to notice the MD Karachi water and sewerage board about C.M.A. No.762-L/2015 and C.M.A. No.346-K/2015. He states that previous MD KW & SB and commissioner Karachi has permitted to transport and supply of subsoil water to industries at the request of industrialists. In the first place, we are at a loss to understand how come permission of this nature be allowed by the commissioner, who has no role in regard to distribution of water supply in Karachi. We have directed the MD KW&SB to ensure that all such permissions, given by different orders shall be cancelled forthwith. The MD shall ensure supply of such nature mentioned in the applications should be stayed immediately and infrastructure shall be uprooted and/or dismantled. In this regards if need be, he can seek assistance of police or rangers. The MD KW&SB shall submit the policy for regulating the supply in the city and such policy shall be furnished within a period of two weeks from today. Secretary Local Government, present in court, states that he has scrutinized the claims of the contractors of water tankers and find that they are dubious. In this respect he after taking proper steps may reject them and parties would then approach the appropriate forum within executive authority. The MD shall further ensure that transportation of water from the hydrants shall be controlled by him as it is administrative matter and he being head of the department will monitor them. In case any infirmity is noticed in future, MD Water Board will be held personally responsible. MD water board shall provide us requisite details of the pending cases in which interim orders are passed by the High Court or subordinate courts with their status and in their intervening period he will ensure that all these cases are pursued before the courts for their expeditious disposal. MD water board states that there is no officer on OPS in the water board as of today. In case if it is notices in future that there is any employee/officer on OPS, MD and the secretary (local government) shall be exposed to contempt proceedings. No official shall be given look after or officiating and/or acting charge in any of the wing of water board." As well he has referred order dated 07.12.2017 in same HRC which is as under:- "This human rights case was registered pursuant to the notice taken by the Building Committee of this Court wherein it was decided that the matter of illegal hydrants in Karachi should be detached from the building committee and be taken up separately on judicial side for the reason that on account of operation of illegal hydrants in the metropolis of Karachi, supply of water to lawful consumers has been tremendously affected. The whole purpose was to ensure that all illegal hydrants are removed. Today, the MD Karachi water and sewerage board states that all illegal hydrants have been decommissioned and the limit of the permissible hydrants has also been brought down to only six, one for each district of Karachi.

2. Such an action is commendable. The MD KW and SB shall ensure that no illegal hydrants will be crop up in future. He shall also ensure that he, his officers and his staff remain vigilant. In case any complaint of illegal hydrants comes to his notice in any form, whether it is in writing or through print or electronic media, he shall take proper action for its dismantling apart from taking criminal action against the wrongdoers. To complete the task in case any inefficiency on the part of the functionaries of the KW & SB is noticed then he shall initiate proper disciplinary action against the delinquent in accordance with the law. As regards to the utilization of subsoil water, the same is also to be regulated by the KW&SB on the basis of uniformly formed policy.

3. For what has been discussed above, the object of this Human rights case i.e. to ensure that illegal hydrants do not operate in Karachi appears to have been served at present, therefore, this case is disposed off. "

3. Learned counsel for applicant contended that learned Additional District Judge was not competent to pass such order by de-sealing the property which was sealed by the Department in pursuance of dictum of honourable Supreme Court as referred above.

4. At this juncture learned counsel for respondent referred order dated 08.09.2016 and has emphasized over paragraph 4 which is that:-- "

4. We, in this backdrop, are constrained to depute all the district judges at Karachi including Malir, to interact with the concerned officers/engineers or whoever is Incharge within their district to ensure distribution of water to the public in a transparent manner. They will pay surprise visits to ensure that there should be no pilferage of water within their distorts besides no illegal hydrants are allowed to operate and in case, if they find anyone, [the concerned engineer and or officer shall be called forthwith to immediately stop such hydrant with] the aid of police and action should be taken against the culprits. The district judges shall held regular meetings . with the officials of water board at their convenience to remedy the miseries of the residents of Karachi. The concerned SSPs of all districts/towns of Karachi and the MD water board and his subordinates shall cooperate with the district judges in letter and spirit for the aforesaid task."

5. The perusal of the impugned order shows that learned Additional District and Sessions Judge was not only aware of the order of honourable Supreme Court but such fact was also specifically brought into his notice in shape of reply. It is also a matter of record that applicant (respondent No.1 in application before lower forum) had categorically owned the action by it (respondent No.1 in application before lower forum) in pursuance of order of honourable Supreme Court with categorical addition that others, including police, acted in aid. It is also a matter of record that the applicant had also challenged the jurisdiction of the lower forum while pleading that it (lower forum), being Ex-Officio Justice of Peace, cannot pass order onto the complained action.

6. At this juncture, it would be conducive to refer the provision of Section 22-A(6), Cr.P.C. which reads as:- "22-A(6) A Justice of Peace for any local area may, issue appropriate directions to the police authorities concerned on a complaint regarding; a) non-registration of criminal case; b) transfer of investigation from one police officer to another, and c) neglect, failure or excess committed by a police authority in relation to its functions and duties; Plain reading of above, leaves nothing ambiguous that such powers could only be exercised for issuing appropriate directions to police authorities which, too, on complaint(s), nature whereof, stood detailed in sub-clauses (a) to (c). Such power, no where, includes any thing which could give an impression that such jurisdiction can be exercised to examine the acts or omissions of other government departments or that under such jurisdiction the actions or omissions of a government department can be undone. I shall add that every government department, in case of needs, can ask for the police aid. The police aid / assistance, if provided, would not turn the absolute action of the department as that of the police. On this count too the learned Additional Sessions Judge was completely wrong in passing the impugned order which, he knew, was likely to result in undoing the action, claimed to be done in compliance of direction of Honourable Supreme Court. Since, the impugned order itself shows that all these facts as well challenge to his authority were in his active knowledge and notice yet the learned Additional Sessions Judge dared to pass the impugned order while wrongly assuming the matter to be falling within powers, given only to issue direction to local police authorities. I shall add that even in name of doing justice a tribunal or a court cannot assume jurisdiction which the law does not vest in it. Unless a Court/ Tribunal has a jurisdiction to entertain a lis, it can pass no order of legal effects. Such deliberation on part of the learned Additional Sessions Judge cannot be ignored lightly.

7. Further, I shall also add here that the Honourable Apex Court had first demanded an immediate action and then had directed to frame a policy. It is worth to mention that in pursuance of orders of the apex court, even District and Sessions Judges were required to help out the relevant departments with regard to illegal hydrants and RO plants. Though, claimed by respondent No.1 that they are extracting water from the subsoil water which cannot be termed as illegal hydrant. Without making any comments on legality or illegality of such action of the applicant, I shall find myself safe in saying that it, however, was never within competence of the learned Additional Sessions Judge to examine legality or illegality thereof while acting as Ex-Officio Justice of Peace nor he (learned ADJ) was ever justified in passing an order which was likely to operate as a declaration i.e. allowing such use and sale of subsoil water without any cover of license or regulations. Here, I would add that no order within capacity of Ex-Officio Justice of Peace can be passed which is likely to operate against an act or omission of government department nor while exercising such jurisdiction the role of declaratory Court can be assumed to decide legality or illegality of action or omission of officials of other government departments. The powers under such provision must always be taken as limited for issuing appropriate directions to local police authorities which, too, on complaints detailed mentioned in provision itself. Apparently learned Additional District Judge (Mr. Shafi Muhammad Pirzada) while having notice of the apex Court orders has exceeded his authority thereby undoing an action of application not of local police authorities hence impugned order is colourful exercise same is set aside. Registrar of this Court shall place this order before competent authority for departmental proceedings against Additional District Judge as referred above, in accordance with Rules. JK/K-10/Sindh Order accordingly.