2020 PLP 84 (MLD)

RASAAL HASAN SYED, J.

The petitioner, in this Constitutional petition, seeks compliance of order dated 24.7.2019 of respondent No. 2, for restoration of Khal/Moga No. 16200/L Mauza Dhukran.

2. The facts as incorporated in this Constitutional petition are that the petitioner owns land in Mauza Jalalpur which was being irrigated from Khal/Moga No. 16200/L Mauza Dhukran. The Khal was allegedly dismantled in rectangle No.171/10 Killa No. 24/08 and rectangle No.171/11 Killa No.4/04, which interrupted supply of water for irrigation of land. The petitioner moved an application for restoration of Khal/Moga No. 16200/L. The concerned Canal Officer summoned the parties, afforded them opportunity of hearing and thereafter accepted petitioner's prayer for restoration of the Khal vide order dated 24.7.2019. In compliance thereof respondent No.2 allegedly issued separate letter to the concerned S.H.O. Police Station Rukanpur for necessary police assistance during implementation of the order passed. As per petitioner about 350 acres of land is situated at Khal/Moga No. 16200/L and the owners thereof were deprived due to the illegal demolition of the Khal. It is added that small portion of the Khal i.e. approximately 300 ft, was dismantled while the remaining Khal was still intact and that the petitioner and other land owners were irrigating their land through artificial methods that placed them under financial constraint. In this factual backdrop the petitioner seeks indulgence through this Constitutional petition for a directive to respondents Nos.1 and 2 for due compliance of the order dated 24.7.2019 in coordination with respondent No.3.

3. Learned counsel for the petitioner, inter alia, contended that the act of illegal demolition of a portion of the Khal was duly assailed before the forum in the hierarchy of jurisdiction prescribed by the Canal and Drainage Act, 1873 (the "Act"). After hearing all concerned the petitioner's application found favour with the competent authority that directed the restoration of the Khal. The order of respondent No.1 was not challenged in the hierarchy of jurisdiction which attained finality and being so, the petitioner was legally entitled to press for fast-track implementation of the order passed in his favour. In the alternative it was submitted that writ petition be remitted to the respondents to treat the same as petitioner's representation and to ensure accelerated action to redress the petitioner's grievance.

4. To the contrary learned A.A.G. has vehemently opposed the petition, submitting that the writ petition was misconceived, the matter in issue was duly attended to by the competent forum which passed the order for the restoration of Khal; as per petitioner's own admission in the writ petition as also per documents annexed therewith, the authority concerned was promptly and diligently taking steps for the enforcement of the order and in this process also sought the assistance of police to pre-empt occurrence of any law and order situation or untoward incident at the time of restoration of Khal and in these circumstances, there was scarcely any justification to seek indulgence in the extraordinary Constitutional jurisdiction.

5. Undoubtedly the petitioner approached the Canal Authorities for appropriate relief in terms of section 68-A of the Act which contemplates that if supply of canal water to any land is interrupted by dismantling a watercourse or internal Khal, the Division Canal Officer, upon an application made to him in this behalf may, after such inquiry as will be deemed necessary, order interim restoration of the dismantled watercourse or the internal Khal and the interrupted supply of water at the cost of persons who interrupted the supply and if necessary by use of such agency or force as may be called for and that such order shall remain in force until the dispute is finally settled under section 68 of the Act. It further provides that the charges determined for restoration of watercourse or internal Khal shall be recoverable from the person at fault as arrears of land revenue. Petitioner himself admits that upon his application, after inquiry and hearing of all concerned, the respondent No.2 accepted the prayer for the restoration of Khal vide order dated 24.7.2019 and in compliance thereof a letter was issued to the S.H.O. Rukanpur for providing police assistance during process of restoration of Khal. Perusal of the file reveals that the order was passed on 24.7.2019, letter for its implementation was issued on 31.7.2019. Instead of following up the matter before the forum in the hierarchy of jurisdiction, the petitioner filed the present Constitutional petition seeking issuance of directive against respondents Nos.1 and 2 to secure compliance of order dated 24.7.2019 in coordination with respondent No.3. It is manifest that the authorities concerned have already mobilized the machinery of law into action, steps have been taken for the implementation of the order but despite this the Constitutional petition was filed. In "Bashir Ahmad v. Abdul Razzaq and others" (1996 SCMR 536) the honourable Supreme Court in effect disapproved of the tendency, to press for directive to propel the operation of machinery already in motion under the prescribed structure of the Act, which in consequence treads a perilously thin line.

6. It may be observed that it is not the claim of petitioner that respondents Nos.2 and 3 were reluctant to implement the order of restoration of the Khal nor is it the allegation that the authorities were inactive or were intending to avoid compliance of order. Being so there was hardly any plausible basis or explanation to seek indulgence in the extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It has been consistently observed by honourable Supreme Court that in presence of adequate alternative remedy interference in Constitutional jurisdiction cannot be solicited. Reference in this context can be made to the rule in "Farzand Rana Naqvi and 5 others v. Muhammad Din through Legal Heirs and others" (2004 SCMR 400) and "Muslim Commercial Bank Ltd. and others v. Ahmad Ali and another" (2007 SCMR 38).

7. It is also a settled rule that where the aggrieved party has already initiated civil litigation and parties are locked in litigation the invocation of Constitutional jurisdiction will not be justified. Reference can be made to the rule enunciated in "Mian Muhammad Yousaf and another v. Lahore Development Authority through Director General, LDA and 5 others" (PLD 2001 SC 393) wherein it was observed by the august Court as follows: - "

10. It is a settled law that the scope of the Constitutional jurisdiction is very limited and is confined to ascertain as to whether the Tribunal or the Appellate Authority or in this case, the Civil Court had the jurisdiction and whether after rejection of the plaint, the pendency of appeal against the disputed question of fact would not confer the jurisdiction on the High Court to entertain the petition in writ jurisdiction. Invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under relevant law would only be justified when the impugned order/action was palpably without jurisdiction as to force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper. In the instant case the suits and an appeal are pending decision between the parties before the Civil Courts and therefore, bypassing the remedy provided under the plenary jurisdiction of the Civil Courts would not be justified and to press into service the Constitutional jurisdiction of the High Court by the appellants can only be deprecated. The writ petition can be filed if an aggrieved person has no remedy under the statute against the impugned order passed by the Tribunal. In the instant case, as stated earlier, the parties are locked in civil litigation in three suits and on appeal and therefore, invocation of the Constitutional jurisdiction by the appellant is certainly an act which cannot be accorded credence in the appeal before us". In "Haji Irshad and 4 others v. Karachi Development Authority and 5 others" (1992 MLD 1794) it was observed by a Division Bench of Sindh High Court that after having resort to the civil litigation, the filing of the Constitutional petition claiming in essence the same relief could not be maintained.

8. In the instant case, the petitioner himself invoked the jurisdiction of the competent forum established under the Act and in those proceedings the authorities, after due inquiry and hearing of parties passed an order favorable to him. The petitioner himself concedes in the petition that the order was not challenged before any forum and as such attained finality and that respondent No.2 had already taken steps to implement the order. With a view to rule out any interference at site during the process of restoration of Khal and also to avoid any law and order situation, the concerned police functionaries had been directed to make available necessary police force for enabling the authority to implement its order and letter to this effect was issued on 31.7.2019 which is not a far off date. Being so, there was hardly any justification or a good ground to invoke the extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 or to make an attempt to commence parallel action in the present proceedings. There being no reluctance on the part of the Canal Authorities in implementation of order already passed by the competent forum, the filing of this Constitutional petition, to seek a directive for the said authorities which are already in action, is nothing but an abuse of process of court. The petition is, therefore, incompetent and could not be entertained.

9. Faced with this situation, learned counsel submitted that the writ petition may be treated as a representation and be remitted to the respondents for implementation of the order. The request made is inappropriate, unjust and untenable in the circumstances of this case in so far as issuance of such directive to the authorities, which were already diligently taking steps to enforce the order passed in the hierarchy of jurisdiction, will be an exercise in futility.

10. For the reasons above this petition being misconceived, incompetent and legally untenable, is dismissed. MH/M-40/L Petition dismissed.