2009 PLP 406 (YLR)

SAGHIR AHMED, J.

Through the instant constitutional petition, the petitioners have assailed the order dated 31-5-2008 passed by respondent No.1/Secretary, Irrigation and Power, Government of Punjab, Lahore, turning down the request of the petitioners for sanction of lift pump at Bahawal Canal. The contention of learned counsel for the petitioners is that once the Chief Minister being the head of Provincial Government having approved the case of the petitioners in relaxation of ban, it was not open for the respondent to have refused the sanction of lift pump. Further argument of learned counsel for the petitioners is that some other similarly placed persons have been sanctioned lift pumps, thus the petitioners could not be discriminated against. The last contention of the learned counsel is that normal source of irrigation is not sufficient enough to irrigate the lands of the petitioners.

2. Heard. Record perused.

3. As regards the argument of learned counsel to the effect that this Court itself had ordered the Secretary Irrigation on 26-3-2008 to decide the matter strictly in accordance with law in the light of order of the Chief Minister dated 20-7-2007, is concerned, that was only a tentative order and the discretion ultimately lay with the respondent to act within the ambit of law and the said respondent having finally decided the matter, the mandate of this Court's earlier order was sufficiently fulfilled and, this Court cannot attach any disobedience of the said order by the Secretary Irrigation. So far as the ground of discrimination is concerned, the petitioner is seeking reference from the letters issued way back in the year 1995-96, whereas, the ban was imposed by the Government vide letter No. So (Rev) 18-7/78 (P-IV) dated 30-8-1997, as such the point of indiscrimination does not lean in favour of the petitioner. On the contrary, if the petitioners are allowed to install lift pumps to carry canal water to their lands, the other farmers irrigating their lands at the tail of the said canal, must certainly be discriminated. This Court in exercise of its constitutional jurisdiction is to strike balance, especially when the petitioners before this Court have not been able to show infringement of any of their fundamentally recognized and enforceable right. Reliance is placed in the case reported in 2007 SCMR

54. Even otherwise, this Court in a Civil Revision No. 221/2007 titled "Abid Mahmood, etc. v. Additional District Judge, Bahawalpur and others has held that Chief Minister has no authority under the law to pass/approve or sanction the installation of lift pump. It is only the Canal Authorities concerned who are competent to pass such an approval/permission for installation of a lift pump. Further, in the said case even the lift pumps already installed were declared to be illegal and without lawful authority. In these circumstances, I am of the consideration view that while turning down the request of the petitioners for sanction of the lift pump no irregularity has been committed by respondent No.1. The petitioners cannot be given preferential treatment qua the others falling on the tail.

4. Further this 'Court has also been able to lay hands on a letter Bearing No.SO (Rev) (I & P)/18-7/78 (P. IV) dated 30-8-1997 issued from the office of Secretary to the Government of Punjab, Irrigation and Power Department Lahore to the Chief Engineer, Irrigation Bahawalpur and others, the relevant portion of the said letter is reproduced herein:-- "The Chief Minister, Punjab has taken serious notice of the tail shortage and has desired that concessional shoots in the form of reclamation should be disconnected forthwith. In deference to the above and in order to improve water supply at the tails, no reclamation supplies be sanctioned. Besides, additional water for garden should not be allowed on problematic channels. Direct outlets from main canals/branches have already been disallowed to avoid mishaps." I note that so many writ petitions, as the one in hand are being filed at this Bench claiming point of discrimination qua the others, who were permitted the installation of Lift Pumps from the main canal, and they continue to avail the said facility even today. This being the alarming situation, it not only amounts to insubordination on the part of Irrigation authorities, but at the same it is flagrant violation of Article 25 of the Constitution of Islamic Republic of Pakistan ensuring equality of citizens before law. The Honourable Supreme Court of Pakistan in the case "Nizamuddin and another v. Civil Aviation Authority and 2 others" (1999 SCMR 467), laid down:-- "Government is not supposed to discriminate between the 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." In view of the above reference from a judgment of the apex Court, coupled with the fact that this Court is also the custodian of the Constitution, therefore, cannot remain oblivion of the surrounding circumstances and must ensure equality. Resultantly, the office is directed to send a copy of this order to the Chief Secretary, Government of Punjab who shall ensure that above referred/ quoted letter is implemented in letter and spirit; the case where Lift Pumps have already been sanctioned and are in continuous use must be re-examined in the wake of said letter and for future a uniform policy must be adopted in the affairs of installation or disconnection of the Lift Pumps, so that all the concerned are meted out equal treatment without there being any discrimination, further ensuring that the rights of persons falling at tails of respective canals are not infringed in any manner whatsoever.

5. For what has been discussed above, I am of the firm view that petitioner has not been able to point infringement of any of his fundamental rights. This petition, therefore, fails and is accordingly dismissed in limine. H.B.T./A-153/L Petition dismissed.