' NAEEM AKHTAR AFGHAN, J.---Through this constitutional petition the petitioners have sought the following relief:- It is, therefore, prayed that respondents Nos. 1 to 4 may be directed to act in accordance with law and to take action against respondent No,5 as available under Ordinance 1X of 1978 this will meet the ends of justice.
2. Facts of the case are that respondent No,5 started excavation of tube-well in Mahal Rehman Karez, Mouza Karezat Kuchlak against which an application was submitted by the petitioners to respondent No,1, stating therein that Malik Abdullah, Malik Muhammad Ashraf sons of Shah Jahan and Alamzeb son of Malik Amir Jan, caste Kakar Mehterzai, residents of Killi Malik Shah Jahan, Tehsil Quetta have started excavation of boring in the Shamilat lands of Karez Rehman without getting NOC due to which the rights of the petitioners and other Pattidars have been prejudiced and it was prayed hat boring work should be stopped. The respondent No,1 marked the application to respondent No,2 with orders to stop the boring immediately and Tehsildar and Nabi Tehsildar were ordered to submit report and stop the boring. Reports were submitted by Naib Tehsildar as well as Tehsildar confirming that the respondent No,5 failed to produce any NOC and the work was stopped at the spot and it was further reported that the land is unsettled/Baroon-uz-line, but the respondent No,5 asserted that the land has come to their share as Khanagi settlement. Naib Tehsildar also issued letter to S.H.0.- to stop the boring and to direct the party to shift the machinery.
' On 7th April, 2010, respondent No,2 also issued letter to Tehsildar Saddar to remove or seal the machinery and impound the same in police station to avoid start of illegal boring again and case should be registered against the accused involved in the illegal activity.
3. In the meanwhile respondent No,5 filed a suit for declaration and mandatory injunction against respondent No,1 before learned Civil Judge-II, Quetta, with prayer to declare that respondent No,5/plaintiff is repairing and re-digging his tube-well and the stoppage of work by the respondent No,1/defendant is without justification and further prayed for direction to the respondent No,1/defendant not to stop the work of the respondent No,5/plaintiff regarding repairing of his tube-well. Along with suit an application under Order XXXIX, Rules 1 and 2, C.P.C. Was also filed by respondent No,5/plaintiff praying therein to stay the operation of the order of respondent No,1/defendant regarding stoppage of tube-well/boring. The learned Civil Judge-II, Quetta, vide order dated 5th April, 2010 stayed/suspended the order of respondent No,1/defendant with regard to stoppage of tube-well/boring till next date i,e, 7th May 2010. The petitioners submitted an application under Order I, Rule 10, C.P.C. For impleadment as party with averment that the respondent No,5/plaintiff has started the excavation work in violation of Balochistan Ground Water Rights Administration Ordinance, 1978 (hereinafter referred as the "Ordinance").
' The petitioners also submitted an application under Order XXXIX, Rule 4, C.P.C. To alter the interim order dated 5th April, 2010 and to direct the parties to maintain status quo position regarding tube- well as in the garb of order dated 5th April, 2010 the respondent No,5/plaintiff will complete the excavation of tubewell/boring.
' An application under Order VII, Rule 11, C.P.C. Was also filed by the petitioners for rejection of the plaint as the suit is barred under the Ordinance and any order of the authority under the Ordinance is appealable.
' On 7th May, 2010 the Senior Civil Judge-II, Quetta, modified the interim order dated 5th April, 2010 by directing both the parties to maintain status quo position till next date. Subsequently, on 17th/May, 2010 application under Order I, Rule 10, C.P.C. Was allowed by the learned trial court and respondent No,5/plaintiff was directed to file amended plaint and the interim order was further extended.
4. The respondent No,5/plaintiff challenged the order dated 17th May, 2010, allowing impleadment of the petitioners, before Additional District Judge-III, Quetta, by filing revision petition which was registered on 18th May, 2010 and the order. Dated 17th May, 2010 was suspended till next date. The petitioners again filed an application under Order I, Rule 10, C.P.C. Before the revisional court for their impleadment and also filed an application under section 151, C.P.C. To clarify the interim order dated 18th May, 2010 and to specify the same to the extent that it relates only to the suspension of the impleadment order. Of the petitioners and the status quo of the trial court shall continue. So far, no further order has been passed on these applications by the revisional court. The petitioners have filed the instant petition.
' It has been contended by the petitioners that respondent No,5/plaintiff has taken the law in his own hands and is carrying out illegal work of excavation/boring and respondents Nos.1 to 4 despite having jurisdiction and powers have failed to implement their orders and have failed to take action against respondent No,5/plaintiff due to status quo order passed by the civil court.
5. Learned counsel for the petitioners Mr. Mumtaz Hussain Baqri, Advocate, argued that the respondent No,5 with ulterior motive and mala fide intention has filed a civil suit to flout and frustrate the order passed by the official respondents on the application of the petitioners with regard to stoppage of illegal boring started by respondent No,5 without obtaining NOC from the District Water Board under the Ordinance. It was further argued that learned Senior Civil Judge-II, Quetta, without applying judicial mind to the facts and circumstances of the case, passed the interim injunction order on 5th April, 2010 in the garb whereof the respondent No,5 restarted the work of his illegal boring and the order of the trial court with regard to the impleadment of the petitioners as party to the suit has been challenged by respondent No,5 before learned Additional District Judge-III, Quetta ,through civil revision and the respondent No,5 has obtained an interim injunction order from the revisional court and in the garb of the proceedings before the civil court, the respondent No,5 in fact has, restrained the authorities/official respondents from proceeding under the provisions of Ordinance.
' On the other hand Mr. Shabbir Ahmed Rajput Advocate, appearing on behalf of the respondent No,5 has strongly opposed the petition on the ground that the matter is .Sub-judice before the court of civil jurisdiction and presently no adverse order has been passed against the petitioners warranting interference by this court in extraordinary constitutional jurisdiction.
' Learned Additional Advocate General, Mr. Tariq Ali Tahir, in attendance along with Mr. Muhammad Ayub Lashari, Naib Tehsildar, representative of Deputy Commissioner Quetta, argued that the matter exclusively falls within the domain of the District Water Committee is view of section 4 of the Balochistan Ground Water Rights Administration Ordinance, 1978 and any order passed by the official is appealable to the Commissioner of the Division under section 4(0) of the Ordinance and revisable under section 3(6)(d) of the Ordinance and suit in this regard is not maintainable.
6. After hearing arguments of all the learned counsel for the parties, we have carefully perused the record. The record reflects that the respondent No,5 has started the boring work in unsettled/Baroon-uzLine lands in the area of Karez Rehman, Tehsil Kuchlak and in the revenue record the land does not stand recorded in the name of respondent No,5. It further reflects that respondent No,5 has not availed any permission of the District Water Committee under section 4(c) of the Ordinance to extract the groundwater through boring and the official respondents after availing reports from the revenue officers ordered to stop the illegal boring work of respondent No,5 and also ordered to remove the machinery from the site and to impound the same in police station and instead of challenging the orders of the official respondents before the Commissioner in appeal under the Ordinance, the respondent No,5 has tried to flout and frustrate the same by filing a civil suit for declaration and injunction and has succeeded in obtaining an interim injunction suspending the orders of the official respondents with regard to stoppage of illegal boring work.
The learned Senior Civil Judge-II, Quetta, without judicial application of mind to the facts and circumstances of the case, after wrongly entertaining the suit against lawful order of the official respondents has issued an injunction order in favour of respondent No,5 in utter disregard to section 56(d) of the Specific Relief Act, which reads as follows:-- Section 56(d)---An injunction cannot be granted to interfere with the public duties of any department of (Central Government) or any Provincial Government or with the sovereign acts of a Foreign Government.
7. The learned Senior Civil Judge-II, Quetta, failed to appreciate that, prima facie, the suit for declaration filed by respondent No,5 to challenge an order passed by an official in discharge of his public duty was not maintainable under section 42 of the Specific Relief Act as the official respondents cannot be restrained nor any injunction can be issued to interfere with the public duties of any department, particularly, when specific remedies of appeal and revision are available under the relevant law before the forums.
For convertence, the relevant provisions of the Ordinance are reproduced herein below:-- Section-4---There shall be a Water Committee in each District to be constituted by the Government.
(a) The Committee shall consist of Deputy Commissioner, Executive Engineer of Water Supply Division, Director/ Project Engineer, Quetta Authority (in respect of Quetta District) Extra Assistant Director Agriculture and one non-official member to be nominated by the Government. Executive Engineer, Water Supply Division of the Irrigation Department, will be the Secretary of the Committee.
(b) The Committee shall work under the direct supervision and overall control of the Provincial Water Board for the purpose of carrying out the objectives of this Ordinance.
(c) No person will be allowed to extract ground water within designated ground water basins, without the permission of the District Water Committee.
(d) Any person who wants to extract ground water within designated ground water basins will submit an application on prescribed form to the District Water Committee.
(e) The Committee will invite objections in respect of the above application from various persons having any interest in the ground water either in the vicinity of proposed place of mining of ground water or in the basin as a whole.
(1) The Committee will hear all such objections and will give due opportunity to all such interested persons to produce evidence in respect of their contention. After hearing the parties it will either grant permission to the applicant to mine the ground water subject to such condition as may be prescribed by it or it may reject the application.
(g) The District Committee while accepting or rejecting the application will give grounds for doing so.
(h) The Committee will have the power to stop the extraction of ground water by any unauthorized person.
(i) The Committee will also have the power of forfeiting any machinery, equipment and tools deployed for the purpose of unauthorized extraction of ground water.
(i) The Committee may also take cognizance of any dispute pertaining to any tube wells/surface wells/ Karezes pending before any Revenue Officers.
(k) The Committee will also issue a permit to any person applying for a new tube well which is a substitute for the abandoned well. The Committee may not hear objections in such cases.
(1) The Committee may allow a permit holder to change the location of his well before the completion of the well. It will amend the permit if it considers that the -change of location does not affect the existing water rights of any other person.
(m) While issuing permit the Committee will ensure that the extraction of water by a permit holder does not cause depletion of perennial stream or any other perennial source of water.
(n) The decision of the District Water Committee on an application submitted to it for extraction of ground water will be governed by the decision of the majority of the members.
(o) Any person aggrieved of any order of the District Water Committee may file an appeal before the Commissioner of the Division within a period of 30 days (who shall dispose of the same after providing the appellant an opportunity of being heard).
(p) The Provincial Water Board shall have the power to call for the record of any case relating to the water rights pending either before the District Water Committee or the Commissioner, to examine and satisfy itself as to the regularity, propriety and legality of the proceedings and may after hearing the parties likely to be affected, set aside any of the order or quash the proceedings, if it considers that any material irregularity has occurred so as to occasion a miscarriage of justice.
' Section 5.---The District Water Committee shall be responsible: -
(a) To implement the policies and directions given to it by the Provincial Water Board from time to time.
(b) To issue water permits to various water users: and
(c) To hear and decide the objections raised by various persons about the use of ground water.
Section 6.---
(1) Any person contravening any provisions of this Ordinance shall be punished with imprisonment of either description for a term which may extend to one year or with .Fine or both.
(2) The offence under the Ordinance shall be bailable.
(3) The ,Court shall not take cognizance of offence under this Ordinance unless a complaint in writing has been made by the District Water Committee.
(4) The Court while passing any sentence on a person accused of violating any provisions of this Ordinance may, also order payment of compensation to the aggrieved person out of fine imposed on the accused.
Under section 3(6)(d) of the Ordinance the Provincial Water Board works as revisional authority against the decision of Water Committees and other tribunals charged with the administration of water rights.
8. In the instant case, the learned Senior Civil Judge-II, Quetta, at the time of entertaining the suit and passing injunction order on 5th April, 2010, absolutely failed to carefully examine and analyze the material on record and before issuing interim injunction order, also failed to consider the relevant law on the subject i,e, sections 42 and 56(d) of the Specific Relief Act as well as the Ordinance.
' The learned Senior Civil Judge-II, Quetta also failed to appreciate that the orders issued by the official respondents with regard to illegal boring were wrongly assailed/challenged in a civil suit by respondent No,5 instead of resorting to the appellate or the revisional forum under the Ordinance.
A Judge is under duty to decide the matter justly and by applying correct law. The courts while dispensing justice are duty bound to apply the provisions of law in their true prospective and application of the same cannot be avoided simply on the ground that the said provisions of law were not brought to their knowledge by the parties, as a Judge is supposed to wear all laws of the country on the sleeves of his robe.
Hence, in the above circumstances, we have no hesitation to hold that the suit filed by the respondent No,5 before the court of Senior Civil Judge-II, Quetta for declaration and injunction challenging the orders passed by official respondents is not maintainable and respondent No,5 should have approached the forums available under the Ordinance.
The respondent No,5/plaintiff has no lawful right or entitlement to carry out boring work without getting permission from the District Water Committee Under section 4(c) of the Ordinance and that too on an unsettled! Baroon-uz-Line land.
There is no cavil to the proposition that under. Order VII, Rule 11, C.P.C., as soon as the cause appears for rejection, the plaint should be rejected straightaway and such a suit should be taken off the file at its very inception to relieve a defendant of vexatious litigation. A plaint can be rejected at any stage and even by the appellate court or a revisional court and even without any application being made by the defendant. In the instant case, already an application was submitted by the petitioner under Order VII, Rule 11, C.P.C. Before the trial court which so far has not been decided by the trial court resulting into the present affairs.
It is to be appreciated that, High Court has been conferred with a supervisory jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, which is essentially both discretionary and equitable and has to be exercised to aid and to sub serve the cause of justice and surely not to defeat it. The writ jurisdiction of a High Court is meant to correct an error of law, resulting from excess or lack of jurisdiction. It is further to be noticed that the courts, vested with powers to administer justice, undisputedly a sacred trust, are obliged by compulsion of law to carefully examine and analyze the material placed before them before arriving at any decision or passing any order.
9. Hence for the above reasons, the constitutional petition is allowed, the plaint of the suit filed by respondent No,5 pending before the court of Senior Civil Judge-II, Quetta is rejected under Order VII, Rule 11, C.P.C. And all the interim injunction orders passed by learned Senior Civil Judge-II, Quetta as well as Additional District Judge-III, Quetta in favour of the respondent No,5 are set aside and the matter is referred to Water Committee of District Quetta to initiate proceeding under Balochistan Ground Water Rights Administration Ordinance, 1978 against the respondent No,5 in view of the application filed by the petitioners and to pass appropriate order in accordance with law after hearing the petitioners as well as respondent No,5 within two months of receipt of this judgment. Till decision by the Water Committee of District Quetta, the respondent No,5 shall-not start any boring work to excavate the ground water.