' QAZI FAEZ ISA, C.J.--- That vide Trust Deed registered on 20th December, 2006 the 'Trust for Development Studies and Practices' was established ("the Trust") to inter alia encourage community and rural development, self-development and sustainable living. The Trust was set up by Dr. Quratulain Bakhteari, Professor Barkat Ali of the University of Balochistan and Dr. Kausar Saeed Khan, Professor Community Health Sciences, Agha Khan University, ("the Trustees"). The Trust is-a non-profit making body and its income is required to be applied solely for the promotion of its objectives, and no portion thereof can be paid out by way of profit or otherwise to the Trustees. The Trust applied to the Government of Balochistan ("the Government") for the allotment of a piece of land, as it wanted to build thereon the 'Institute for Development Studies and Practices' ("the institute").
2. The Senior Member, Board of Revenue, in exercise of the powers conferred by subsection (2) of section 10 of the Colonization of Government Lands Act, 1912, vide Order No,53/LU-2004 dated 26th May, 2005, granted four acres situated in Mahal/Mouza, Hanna Baroon Tangi ("the said Land") for a price of 953,964/- rupees per acre, total amounting to a total of 3,815,856/- rupees. Subsequently, Lease Deed dated 24th June, 2005 was executed in favour of the Institute by the Executive District Officer (Revenue)/Collector Quetta.
3. That about four years after execution of the said Lease Deed the Institute received Order bearing No,53/LU-2009 dated 22nd July, 2009 ("the impugned order"), which is reproduced herein under:- "With the prior approval of the competent authority the Board of Revenue Balochistan is pleased to withdraw its earlier order of even number dated 26th May, 2005 wherein a piece of State land measuring 4-0-0 acres situated in Mahal/Mouza, Hanna Baroon Tangi was leased out in favour of Institute for Development Studies and Practices for construction of Community Development and Practices University at Quetta.
' The land in question is hereby resumed in favour of the State."
4. That upon receipt of the impugned order the Institute wrote letters dated 25th July, 2009, 1st December, 2009 and 17th March, 2010 to the Government seeking withdrawal of the impugned order, but none elicited a response from the Government. Consequently, this petition was filed assailing the impugned order. The learned counsel for the petitioner stated that no reason requiring the issuance of the impugned order has been communicated to the Trust, the Trustees or the Institute. He further stated that the entire amount demanded by the Government for the said Land was paid and the Institute is properly utilizing the said Land and raised construction thereon, which include classrooms and other structures, that have been built using traditional mud techniques. In addition a biogas unit to produce gas for cooking, a solar system and wind turbine for electricity generation and requisite paraphernalia to harvest seventy thousand gallons of rain water has been installed on the said Land. The Institute, according to him, has been successfully imparting community education and development, including introducing models of income generation, organic farming and techniques for alternative electricity generation, and the photographic evidence submitted in court confirms the said works and activities. Mr. Hadi Shakeel Ahmed contended that the petitioner is providing valuable services to the marginalized sectors of society, teaches self-development and sustainable living, therefore, the Government should support it rather than illegally deprive it of the said Land, in contravention of the fundamental right to hold and utilize property, which has been guaranteed by Article 24 of the Constitution of the Islamic Republic of. Pakistan.
5. The Government has filed its comments under the signature of the Senior Member, Board of Revenue. The comments do not deny the facts as alleged in the petition, however, state that the impugned order was issued pursuant to the directive of the Chief Secretary Balochistan that, "the land should be taken back", and a copy of the internal government working paper ("the Summary") is attached which shows that the Chief Secretary may have been persuaded to issue the said order on account of the noting made by the Additional Chief Secretary (Development) on the Summary, that, "the NGO [the petitioner] changed the districts identified by P&D and work directly with the donors". The learned Assistant Advocate-General ("A.A.-G.") however, acknowledged that the said reason was not mentioned in the impugned order, nor was a show-cause notice issued to the petitioner prior to cancelling the allotment/lease of the said Land.
6. We have heard the learned counsel for the petitioner and the learned A.A.-G. And have gone through the record. Admittedly, the Government had decided to lease the said Land to the petitioner and the Lease Deed was executed in favour of the Institute. The entire amount of the said Land has also been paid to the Government; and it is not the case of the Government that the price was below the market rate. The petitioner has also demonstrably utilized the said Land for the purpose it was granted, and there is no denial of the facts as alleged by the petitioner, including the photographs filed by the petitioner. We are satisfied that the Institute is using the said Land for the purpose it was leased. Admittedly, neither a show-cause notice was issued citing the reason that may have required the Government to resume the said Land nor an opportunity of hearing provided to the petitioner.
7. That in the impugned order it is stated, that, "The land in question is hereby resumed in favour of the State", but without observing basic precepts of justice; including issuance of a show-cause notice citing the reason or reasons that may have necessitated the resumption of the said Land and without providing an opportunity of a hearing before issuance of the impugned order. The Government therefore clearly acted without due process, which has also now been specifically incorporated as a fundamental right in the Constitution of Pakistan (Article 10A). Another fundamental right of the petitioner that was clearly violated is the one which guarantees that, "No person shall be deprived of property save in accordance with law" and that, "No property shall be compulsorily acquired or taken possession of, save for a public purpose, and save by the authority of law which provides for compensation therefore..." (Article 24(1) and (2) of the Constitution). We may add that the reason which may have prevailed with the Chief Secretary, i,e, "the NGO changed the districts identified by P&D and work directly with the donors", could not be a reason for resuming the said Land as it has no nexus to any condition stipulated in the Lease Deed.
8. The petitioner is serving the people and providing valuable skills to a deprived sector, including teaching and showing models of sustainable living, of water harvesting, biogas generation, utilization of wind and sun to generate electricity. The State is required to, "promote, with special care, the educational and economic interests of backward classes and areas" and "enable the people of different areas, through education, training, agricultural and industrial development and other methods, to participate fully in all forms of national activities..." (Article 37(a) and (f) respectively of the Principles of Policy, Chapter 2 of Part-II of the Constitution). We would have expected the Government to support the activities of the petitioner instead it acted unreasonably, illegally and unconstitutionally in issuing the impugned order which cites no reason that may have necessitated its issuance.
9. We may add that educating and empowering the less privileged sectors of society is an activity rarely undertaken, and the same is the position with regard to imparting sustainable living methodologies, and in particular water harvesting, water conservation, water reuse and the sustainable use of water. Balochistan is primarily dependent on the careful utilization of its scarce subsoil groundwater. Groundwater accumulates slowly over thousands of years in the subsoil aquifer. To maintain the aquifer in equilibrium it must be harvested in a sustainable manner, i,e, extraction of water from it should not .Exceed the rate of recharge, as otherwise the aquifer will slowly dry out. The aquifer may also become unusable if excessive water is drawn from it since the particulate and salt content in the aquifer may become too concentrated and make the water from the aquifer unfit for human consumption and even agricultural use.
10. The Balochistan Ground Water Rights Administration Ordinance, 1978 ("the Ordinance") was enacted, "to provide for the management of ground water rights in Balochistan." It would be useful to refer to two terms defined in the Qrdinance; 'aquifer' means a "geological formation that stores and transmits water" and 'depletion' means "the continued withdrawal of water from a surface or ground water stream, reservoir or basin at a rate greater than the rate of replenishment." The Ordinance established a Provincial Water Board and requires the Provincial Water Board, amongst other things, to: "Lay down policies for conserving and developing the ground water resources in Balochistan" (section 3(6)(a)); "Identify aquifers of ground water and declare such aquifers as it may consider necessary as Designated Ground Water Basins" (section 3(6)(e)); "Such basins shall be notified by the Board in the official Gazette" (section 3(6)(f)); "The Board will arrange to determine the existing withdrawal through tube-wells/open surface wells/Persian wells/karezes or any other means" (section 3(6)(g)); "All the existing open surface wells/tube-wells kurezes/springs and any other device of extracting ground water will be got registered with the Provincial Water Board" (section 3(6)(h)); "All such registered wells/karezes/springs and other means of extracting ground water will be notified by the Provincial Water Board" (section 3(6)(i)); "The Water Board will also lay down distances between wells / springs and karezes within which the District Water Committee shall be allowed to issue permits" (section 3(6)(j)); and "It shall also determine the safe yield in respect of each basin beyond which the District Water Committee will not be authorized to issue further permits" (section 3(6)(k)). The Provincial Water Board is headed by the Additional Chief Secretary' Development (whose observation may have prompted the issuance of the impugned order) and another member of the said Board is the Member Board of Revenue (the department that issued the impugned order). The Provincial Water Board remains largely oblivious of its responsibilities under the Ordinance and is failing to conserve the valuable groundwater resource.
11. That whilst this petition does not directly pertain to the Balochistan Ground Water Rights Administration Ordinance, 1978, we have referred to it because the petitioner is also imparting knowledge about water conservation and water harvesting techniques. We can take judicial notice of the fact that the ground water tables in different parts of Balochistan are rapidly depleting due to the uncontrolled use of tube-wells and the Government and its Provincial Water Board is remiss of its statutory obligations; which may have catastrophic consequences.
12. That another component of the petitioner's sustainable model is electricity generation from the wind and sun, which are renewable resources.. Non-renewable energy sources are oil, coal and natural gas, also referred to as fossil fuels as these were formed hundreds of millions of years ago.
Fossil fuels are a fast depleting finite resource and are not renewable; once they are burnt they are gone. The burning of fossil fuels releases harmful gasses (carbon dioxide) and air-pollutants emissions (sulfur dioxide, carbon monoxide, nitrogen oxides, black carbon) which are health hazards. The use of renewable energy (sun, wind and water) is clean and does not pollute the atmosphere. Pakistan is a member of the United Nations and is committed to reducing carbon dioxide emissions and to promote the use of renewable energy. Pakistan is a contracting party to a number of international environmental conventions, including 'Framework Convention on Climate Change' (1992), and the Kyoto Protocol. At the provincial level too environmental commitment has been demonstrated.
13. The Balochistan Conservation Strategy' was prepared by the Government of Balochistan (2000, published by International Union for Conservation of Nature and Natural Resources (IUCN), Pakistan and Government of Balochistan). Under the title 'Issues in Energy' (Chapter 8, 'Minerals, Mining and Energy') of the Balochistan. Conservation Strategy it is stated that, "Renewable sources might help solve the energy problems of those remote areas where it is difficult to provide electricity through transmission lines. Moreover, the use of renewable technologies will surely reduce pressure on fossil fuel reserves, trees and shrubs", and an "obstacle to a wider use of renewable energy power systems ... His the] lack of practical information on installation." The Balochistan Conservation Strategy requires specific things to be done to attend to the problem; it states, under 'The Way Ahead', that: "Institutional arrangements for promoting and developing renewable resources of energy need to be strengthened. The provincial government will designate one institution as the lead organization for planning, demonstrating, analyzing and developing renewable sources of energy in the province. Specific targets for solar, wind or hybrid systems will be planned annually."
"There must be on-site training and proper maintenance of mechanical components. To develop renewable energy systems effectively, planning authorities will ensure that new demonstration projects are installed at the village and District levels to demonstrate how the maximum use of renewable energy applications can be made through proper construction, operation and maintenance." However, it is regretfully observed that the requirements of the Balochistan Conservation Strategy are observed in the breach.
14. That the petitioner has constructed the building of its Institute using traditional mud techniques.
The knowledge of traditional methods of construction using mud, gypsum and lime are being lost.
Latest scientific knowledge can be utilized to improve upon the traditional methods of architecture, but is observed that reinforced concrete has been wantonly introduced and traditional methods and technologies jettisoned. The Intergovernmental Panel on Climate Change ("IPCC") was established by the United Nations Environment Programme and the World Meteorological Organization to, "provide the world with a clear scientific view on the current state of knowledge in climate change and its potential environmental and socio-economic impacts." The experts of IPCC in their last Assessm ent Report recommend that: "In developing countries, integrating elements of traditional lifestyles into building practices and architecture could facilitate the provision of high levels of energy services with much lower energy inputs than baseline" and that, "Limiting the effects of climate change is necessary to achieve sustainable development and equity, including poverty eradication".
15. That, the methods demonstrated and skills taught by the petitioner, that include water conservation, electricity generation through renewable sources and the use of traditional mud techniques for constructing, accord with the law, international conventions and the latest scientific evidence. Therefore, if the Government is apathetic to its responsibilities, all the more reason that, it should encourage such activities, rather than to thwart the same.
16. That for the aforesaid reasons the impugned Order bearing No,53/LU-2009 dated 2nd July, 2009 is declared to be being illegal and unconstitutional and is struck down since the Government acted completely unreasonably and without any justification apparent we also impose costs in the sum of 20,000/- rupees to be paid to the petitioner.