2005 PLP 424 (CLC)

"The natural resources of the earth, including the air, water, land, flora and fauna especially representative, samples of natural eco‑systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate."

14. A reference has also been made to an observation from the Supreme Court of India in the case of State of Tamilnadu v. Hind Stone 1981 (2) SC 205 at p.212 which is reproduced as follows:‑‑ "(6) Rivers, forests, minerals and such other, resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by anyone generatopm. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of nation in the best possible way. It is in the interest of mankind. 1t is in the interest of the nation. "

15. A view was taken by the Court in the said report that the resources like air, sea water, forests stand covered under the doctrine of public trust and are to be protected. It has, therefore, been held that State as a trustee is, under a legal duty to protect the natural resources. The resources meant for public use cannot be converted into private ownership. Thus, it was held that the underground water belongs to public and the State has got a duty to protect ground water against excess exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India i.e. Article 9 of the Constitution of Pakistan. The learned Judge after examining the case, issued following directions:‑‑ "(1) The 2nd respondent shall stop drawing‑ground water for its use after one month from today. (2) The Panchayat and the State shall ensure that the 2nd respondent does not extract any ground water after the said time limit. This time is granted to enable the 2nd respondent to find out‑alternate sources of water. (3) The Panchayat shall renew the licence and shall not interfere with the functioning of the Company on the grounds mentioned in Exh.P.4 if it is not extracting ground water and is depending for its water needs on other sources. (4) The Panchayat shall, with the assistance of the Ground Water Department, find out the quantity of water that a landowner with 34 acres of land would extract for his domestic and agricultural purposes. At the time of hearing, the learned counsel for the Panchayat raised a serious objection to the direction of the Government to conduct the study through the Ground Water Department and other official agencies. The complaint of the learned counsel was that the reports of such agencies lack credibility. People look upon these reports with suspicion. It is unfortunate that we have to make arrangements for "guarding the guards". I think, the media can take that role. The Ground Water Department shall hold the inspection with notice to the Panchayat and the 2nd respondent. It shall publish the details of the instruments used and divulge to the parties, the scientific principles based on which they work. The reading and data collected shall be furnished to, both sides. The media shall be permitted to watch the inspection. The 2nd respondent shall permit the accredited media person to accompany the officials of the Ground Water Department and the Panchayat. Though their presence may be inconvenient or irritating to some, it will sub serve public interest. Transparency will lend credence to the reports. Sunlight is the best disinfectant. (5) The 2nd respondent shall be permitted only to draw that much quantity of water ascertained as per direction No.4 above and that too, form open dug wells in a transparent manner, subject to inspection and monitoring by the Panchayat and the Ground Water Department. (6) The arrangement for drawing water and its monitoring should be done in a transparent manner with access to the Panchayat and the media. (7) The Panchayat shall ensure that all other wells including the bore‑wells of the 2nd respondent are closed down after one month. Exh.P.3 order of the Panchayat and Exh.P.6 order of the Government are modified to the above extent."

16. In support of his plea for grant of interim injunction, learned counsel has further placed reliance on the following cases:‑‑ (1) M.C. Mehta v. Kamal Nath (1997) 1 Supreme Court Cases 388, (2) National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419 (Supreme Court of California), (3) Marks v. Whitney 6 CA‑1. 3d 231 (Supreme Court of California). (4) Ardeshir Cowasjee v. Province of Sindh 2004 SBLR Sindh 763, (5) Shehri v. Province of Sindh 2001 YLR 1139, (6) Gaved v. Marlyn 34 LJCP 352, (7) Gul Haider v. Asat PLD 1978 Pesh. 157, (8) Anjum Irfan v. Lahore Development Authority PLD 2002 Lah. 555, (9) Asrabullah v. Kiamatullah AIR 1937 Cal. 245.

17. Learned counsel has, therefore, vehemently urged that interim order already operating be confirmed so as to remain operative till the decision of the suit and the application filed by defendant No. 1 for vacating the same be rejected being devoid of any force.

18. Mr. Wasim Sajjad learned counsel for defendant No. 1 has disputed and controverted the stand taken by the plaintiff that the land in question is a part of the so‑called Education City. Learned counsel has argued that there is no such official document or decision of any competent authority on record to show that the Government has decided to set‑up Education City for the purpose as claimed by the plaintiffs. According to learned counsel some statements given by the City Nazim or some other functionary of the Provincial Government are not sufficient to hold or even presume that the land in‑question has been earmarked only for the purpose as claimed by the plaintiff. Learned counsel has further argued that in order to attract foreign exchange and to encourage industrial activity defendant No. 1 has been leased out the land in question as per rules and law. The mistake in the initial lease orders and other documents in respect of Na‑Class number of the land has been duly corrected by the competent authority. Learned counsel has further argued that the line of arguments taken on behalf of the plaintiff is hypothetical as neither environment shall be affected adversely nor any traffic hazards will be created. Apprehension that water table will go down' and aquifer will be adversely affected is also without any substance. Aquifer will not be adversely affected due to natural process as a result whereof further water shall be accumulated in place of the water drawn by the defendant No.

1. Furthermore, the water is to be drawn by defendant No. 1 from a much deeper place. There are various layers/reservoirs of water at various levels under the land in question. The first layer is available at a depth of about 40 feet which shall not be sued by the defendant who has sunk his tube‑wells at a depth of 600 to 700 feet and the water available at the depth of 40 feet can be used by the plaintiffs or any other owner of the land. Learned counsel has referred to the counter‑affidavit filed by Dr. Jean‑Lug Bonjour, Senior Hydro‑geologist for Nestle waters to refute the contents of the affidavit filed by applicant Kazim Mansoor on behalf of the plaintiffs. He has stated that ground water found at deeper levels planned for use by Nestle is brackish and unfit for human consumption in its natural state. The plant installed by Nestle will be converting such water into one, which is fit for human consumption. This way Nestle will be fulfilling the drinking water needs of the people of Karachi. Refuting the contention of learned counsel for the plaintiffs that the defendant has no right to take out/draw the water in such a huge quantity, learned counsel for defendant No. 1 has referred to the said counter‑affidavit wherein it is stated that continuous extraction of water for over a period of six months before construction was started, indicated no fall in the water table, hence allegations are without any substance. Learned counsel has further referred to illustration (g) to section 7 of the Easement Act to show that every owner of a land has exclusive right to enjoy and dispose of immovable property and all products thereof subject to any law for the time being in force, and there is no such law prohibiting an owner of land from using the subsoil water in any quantity he needs. For ready reference section 7 of Easement Act and illustration (g) is reproduced hereinafter:‑‑ "

7. Easements are restrictions of one or other of the following rights (namely):‑‑‑ (a) The exclusive right of every owner of immovable property (subject to any law for the time in force) to enjoy and dispose of the same and all products thereof and accessions thereto. (b) The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation. Illustrations of the rights above referred to: (a) .................................................................................... (b) .................................................................................... (c) .................................................................................... (d) .................................................................................... (e) .................................................................................... (f) .................................................................................... (g) The right of every owner of land to collect and dispose which his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel. (h) .................................................................................... (i) ...................................................................................."

19. Reliance has also been placed on a case from Indian jurisdiction reported as Karathigundi Keshava Bhatta v. Sunnanguli Krishna Bhatta AIR (33) 1946 Mad. 334 where a rule has been laid down with reference to section 7 of Easement Act, which is reproduced as under:‑‑ "The general rule that a landowner has a natural right to divert or appropriate within his own land, without regard to his neighbour, water percolating or flowing in undefined channels must be taken with this reservations, that if he cannot effect such diversion or appropriation without appropriating water from a stream flowing in a defined channel, he may not do so at all."

20. Learned counsel has further argued that land belongs to the Province of Sindh which has granted/leased out the same to defendant No.1 under a valid lease, which is still intact. Construction whatever, has been raised in accordance with law after, obtaining necessary permission from K.B.C.A. such certificate from K.B.C.A. dated 21‑7‑2004 has been placed on record as Annexure "F". Learned counsel has further argued that the water taken out from the aquifer will ultimately be used by the people of Pakistan and more particularly people of Karachi who are already in need of pure hygienic potable water. With reference to the case‑law from Indian jurisdiction in Coca‑Cola's case (supra), learned counsel has argued that it is distinguishable as due to drawing of the water by Coca‑Cola Company in huge quantity the table of the water in the wells in the vicinity which was the source of drinking and cultivation had gone down which is not the position with relation to case in hand. Learned counsel has, therefore, prayed for dismissal of the application for grant of injunction so that the defendant who have set‑up their project after investing huge amount and have been suffering irreparably could start functioning. It has been further argued that under the above stated factual and legal aspects of the matter, there is neither a prima facie case nor balance of convenience in favour of the plaintiffs and no irreparable loss will be caused to the plaintiffs if injunction as prayed is refused, on the contrary the defendant No. 1 shall suffer irreparable loss if the application filed by the plaintiff is granted.

21. I have heard the learned counsel for the parties and perused the relevant material placed on record with their able assistance. Case‑law cited at the Bar has also been taken into consideration. Various documents placed on record viz. the decision taken in Sindh Cabinet meeting held on October 16, 2001 which was chaired by Governor of Sindh clearly shows that "Link road area between National and Super Highway will be declared Education and Health City. Land on Link Road will only be allotted to Educational and Health Sector Institutions and allied amenities like a bus terminal, hotels, and petrol pumps". The minutes of inaugural meeting of Economic Development Council held on March 31, 2001 which, too, was presided by Governor of Sindh shows that Mr. Moinuddin Haider had also suggested that the area under Sindh Madrasah SZABIST and new land of. Agha Khan University be declared as Education City. Apart from various news item which appeared in a section of National Press, minutes of the meeting of Karachi City District Government under the, Chairmanship of City Nazim also show that on January 29, 2004 the progress of development of Education City at the link road was reviewed. Again there is an order, dated 17‑2‑2003 of the District Officer Revenue City District Government, Karachi which shows that a ban was imposed on transactions regarding sale of land, Renewal of the lease, Conversion, Exchange and Transfer of the land in Deh Chuhar of Gadap Town, in view .of proposal for establishment of Education City. It appears that thereafter on 25‑10‑2003, 99 years lease for industrial/commercial purpose in respect of 20 acres of N.C. 108 Deh Chuhar, Karachi was approved by the Secretary to Government of Sindh (LU) Department Karachi. The Na‑Class number was subsequently changed showing the grant out of Na‑Class No.106. It further transpires that plaintiffs through this suit are resisting the setting‑up and functioning of defendant No. 1 mainly on the ground that it will adversely affect the environment required for an area earmarked for an Educational City and there will be traffic jam and hazards. Mainly it is being objected on the ground that huge quantity of the underground water will be extracted by defendant No. 1 in this arid area and such excessive withdrawal of water without being recharge shall make the area completely dry and the plaintiffs who have to set up their institutions relating to services in the field of health and education shall‑ be without water.

22. The grounds urged on behalf of the plaintiffs have been refuted on behalf of the defendant No. 1 as well as defendants Nos.2 to 4 on the ground that there is no official declaration earmarking the area in question as Education City and there will be no adverse effect on the environment. Furthermore, plenty of water is available at the level from where the defendant. No. 1 will extract water for bottling purpose and its supply all over the country. Indeed, there is no notification specifying the boundaries of the Education City but the various decisions taken by the Sindh Cabinet and City District Government cannot be ignored. It has come on record that the defendant No. 1 shall extract water from two tube‑wells in the quantity of 148 imperial gallon per minute or 306 million liters per year for the sale of 228 million liters of water. There appears to be force in the contentions of the learned counsel for the plaintiffs that in view of the various reports which have come on record that water proposed to be extracted from an aquifer which is situated under an arid land having very little rain fall, prima facie would make the said deposit dry soon after in the absence of a recharge as it is necessary that a balance must exist with the amount of water entering and leaving the system. Indeed, as per illustration (g) to section 7 of the Easement Act, 1882, the owner of a land has a right to collect and dispose of within his own limits all water under the land which does not fall in a defined channel but this right is not unfettered. Even in the case of Karathigundi Keshava Bhatta v. Sunnanguli Krishan Bhatta (supra), cited by Mr. Wasim Sajjad learned counsel for defendant No. 1, it has been held as under:‑‑ "This rule based on the two decisions referred to above applies in this country as well and the lower Courts were justified in holding that as the pond `Y' had the effect of tapping the water flowing in the channel, it is an actionable wrong that must be prevented by the issue of a mandatory injunction."

23. No civilized society shall permit the unfettered exploitation of its, natural resources by anyone particularly in respect of the water which is a necessity of the life. Ground water is a national wealth and belongs to entire society. It is a Nectar, sustaining life on earth and without water, the earth would be desert, I find myself in agreement with Principle to Stockholm Declaration, 1972 as reproduced above in para. 13 of this order that the natural resources of the earth, including the air, water, land, flora and fauna especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. At this stage, I may quote a Kashmiri's saying translated in English which is written in bold letters at the entrance gate of a section relating to environment, in Disneyland Orlando, Florida, USA which says "We have not inherited this land from our forefathers, we owe it to our children". The future needs of our children are of prime importance and the Courts of law while dealing with the equitable relief of injunction should keep the same in view. 24. 1t is well‑settled that natural resources like air, sea‑, waters, and forests are like Public Trust. The said resources being a gift of nature, they should be made freely available to every one irrespective of the status. "Doctrine, of Public Trust" as developed during the days of ancient Roman Empire, enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Even under the Islamic law certain water resources are to be protected from misuse and over exploitation. (Reference can be made to a discussion at page 37 of the book "Environmental Dimensions of Islam" by M. IZZI DIEN.

25. As a result of discussion made above, I find that a prima facie case for grant of injunction has been made out in favour of the plaintiffs. Balance of convenience also appears to be in their favour because once the process of extracting the water in such a huge quantity is allowed to operate, each day, each hour, and each minute water deposits in the aquifer would diminish rapidly and shall adversely affect the rights of plaintiffs to use the underground water according to their genuine needs which shall amount to an irreparable loss to them. Resultantly, C.M.A. No.3717 of 2004 is granted and the interim order dated 24‑5‑2004 as extended from time to time is hereby confirmed till decision of this suit. In the meantime, the defendant No.1 is restrained from initiating any commercial/industrial activities, including setting up of a bottling plant in the area. Consequently, C.M.A. No.5343 of 2004 filed on behalf of defendant No. 1 is dismissed. M.B.A./S‑87/K Order accordingly.