P L D 1994 Supreme Court 242 (PLP)

SALEEM AKHTAR, J‑‑‑The petitioner seeks leave to appeal against the judgment of the learned Judges of the High Court of Balochistan whereby the Constitution Petition filed by him challenging the order passed by respondents Nos.l and 2 refusing to grant permission to dig a well as a substitute for the old well was dismissed.

2. The petitioner owned a well to irrigate his land which was in existence before the promulgation of Balochistan Ground Water Rights Administration Ordinance, 1978. On 26‑12‑1989 the petitioner submitted an application to the Deputy Commissioner/Chairman, Water Committee to grant no objection certificate for excavating another well as with the passage of time the well has dried down which is adversely affecting his gardens. He wanted to dig another well nearby. No objection certificate was accordingly granted which was challenged by respondent No.3 by filing an appeal before the Commissioner, which was allowed by order dated 21‑1‑1992 inter alia holding that existing well of the petitioner was not covered by the definition of `abandoned well' as defined by section 2(g) of the Ordinance. Thus the order of the Deputy Commissioner/Chairman, District Water Committee dated 16‑11‑1991 granting , no objection certificate was set aside. The petitioner filed revision petition before the Provincial Water Board, which was also rejected on 24‑2‑1993. The relevant portion of the decision may be reproduced as follows:‑‑ "That contention ‑ of the counsel for appellant that the well is abandoned and that they are paying fix charge to save disconnection because it would be impossible to get it restored is not maintainable. The counsel for appellants' view that the well is abandoned does not strictly speaking come within the definition of abandoned well as explained in para. 2(g) of the Balochistan Ground Water Rights Administration Ordinance, 1978. (2) . The appellant can dig this existing well to improve the discharge of water if he is not able to drill it with the help of a drilling rig because 1100() KV wires are passing over it. (3) In view of the above the Board rejected both the revision petitions and upheld the orders of the Commissioner, Quetta Division dated 21‑1‑1992." Aggrieved by this order the petitioner filed a Constitution Petition in the High Court, which was also dismissed by the impugned judgment.

3. The learned counsel for the petitioner contended that petitioner's well was covered by the definition of `abandoned well' and therefore the impugned judgment and orders are illegal and in terms of the Ordinance. permission should be granted for digging another well. Section 2(g) of the Ordinance reads as follows:‑‑ "Section 2(g):‑Abandoned well means any well whose use has been permanently discontinued. Any well shall be deemed abandoned which is in such a state of disrepair that obtaining of ground water is impractical." . From the definition it is clear that there should be an existing well which has been permanently in disuse. Temporary non‑user of a well due to any defect, deficiency or disrepair which can be rectified, improved or repaired by some device will not render such well an `abandoned well'. This definition further illustrates that even such wells which are in state of disrepair and obtaining of ground water is not practically possible, will be covered by it. The Deputy Commissioner/Chairman, Water Committee did agree with the petitioner and granted no objection certificate, but all other authorities including the Commissioner and the Provincial Water Board did not find the well as an abandoned well. The learned Judges of the High Court also considered the material placed on record, the petitioner's application, the reports and the order of the Board and came to the conclusion that they merely indicate reduction in the quantity of water in the existing well. This factual finding is based on information s and orders passed by the concerned authorities which must have been made after the inspection of the site. For this reason the Board had observed that the petitioner can dig the existing well to improve the discharge of water if he is not able to drill it with the help of a drilling rig because 11000 KV wires are passing over it. Therefore, these authorities have not treated the disputed well to be abandoned well because its water bearing capacity has been reduced, but it has not completely dried up nor is it in a condition of such disrepair that it is not practicable to restore or regain the water. In the face of these orders and findings at this stage this factual controversy cannot be agitated. We therefore, refuse to grant leave. However, we observe that as the petitioner has been pursuing the case since a long time, he may apply for digging fresh well and if such an application is made, the authorities shall dispose it of expeditiously according to law. AA./J‑103/S Leave refused