' IFTIKHAR MUHAMMAD CHAUDHRY, CJ.---This Constitution petition has been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan with the following prayer:- "Therefore. It is requested that kindly take notice and cancel all direct outlets issued by CM Sindh and conduct 'enquiry against corrupt irrigation officers.
' Furthermore. Kindly order an enquiry for the rest DOs issued by previous government and justify the current Secretary Irrigation is close to resolve to praised at CM Sindh is corrupt and not illegible to take any initiative.
' It is obvious that as he sits on the post the tail end growers will be deprived of water while PPP MPA's and MNA's will keep on enjoying others due .Share. Therefore, he must be removed and enquiry should be held on irrigation department for depriving tail end growers of their due water share causing them huge financial losses."
2. On having gone through the contents of the petition. Notices were issued to the respondents. The learned District and Sessions Judge, Raclin. Was also directed to submit report after conducting an inquiry. On the last date of hearing, after receipt of the report, following order was passed:- "Iftikhar Muhammad Chaudhr y, CJ. A report (CMA 894-K/2013) has been submitted by the Secretary Irrigation which has been contradicted materially by the learned District & Sessions Judge in his report dated 27.11.2013 because he too was asked to inspect the site and submit report. Mr. Ahmed Junaid, Chief Engineer stated that for the last about one year, 42 FIRs have been registered against the persons for theft of water. His complaint is that whenever such violation occurs, letters are being sent to the Police for registration of cases but on account of their lukewarm attitude, the accused persons are not booked for violation of Sindh Irrigation Act, 1879.
2. The learned Advocate General appeared alongwith the DIG Mr. Akram Naeem Bharoka. When We inquired from the DIG as to why onthe complaints sent by the Irrigation Department, actions are not being taken, he contradicted the stance of the Chief Engineer and explained that out of 42 FIRs, in 32 cases chatlans have been submitted and out of total 139 accused persons involved, 96 accused persons have been challaned. We have drawn the attention of Secretary and Chief Engineer to section 28(d). Of the Sindh Irrigation Act, 1879 which reads as follows:- "28. Power to stop water supply: ---Thesupply of water to any water-course or to any person who is entitled to supply shall not be stopped except:--
(d) whenever and so long as it may be necessary to do so in order to prevent the wastage or misuse of water; "
3. It appears that the outlets have been sanctioned in violation of law and in relaxation of the ban which has been imposed as per letter No, 2/ 687-S.O. (OP)/70-Vol-111, dated 2.1.1999 but in the' relaxation of this ban from time to time, outlets are sanctioned in favour of influential and interested persons without acknowledging that due to such acts, the lands of farmers/zamindars situated at tail shall not get water equal to their share because before reaching the tail mostly the whole water is taken by upper riparians. These fanners/zamindars at the tail have every right to protect their property under Article 24 of the Constitution as they are also earning livelihood for their families. In such view of the matter, we direct the Secretary, Irrigation that immediately he should take action to protect their interest.
4. Here we deem it appropriate to reproduce operative part-of the report of the learned District & Sessions Judge Badin dated 27.11.2013:- "It is further submitted that frames of the outlets were tampered and some were having repaired freshly. The type of the frames as sanctioned was 2"x2" inches but after tampering, the same were found upto 1 to 2 feet width. It is further submitted that on 25.11.2013 the most of the outlets were closed and the Irrigation Officers informed that the same have been closed due to rotation, hence, the flow of water was found upto the sanctioned level and reached at the tail of Sangi Pharho /Regulator. It is further submitted that the outlet of Kamal Khan Chang crossed Pir Sakhi Minor. It is further submitted that again on 26.11.2013 the undersigned conducted the surprise visit of the , site without accompanying the Irrigation Officers and found that most of the outlets' were opened, hence, there was no pressure of flow of the water at the tail and it was not flowing at sanctioned level at the tail of Sangi Phralto. It is further submitted that if, all the outlets remain opened, then the flow of the water will not reach at the tail of Naseer Branch. In this situation, the zamindars of tail of Naseer Canal Branch cannot get the Irrigation water for cultivating their lands"
5. The above report is sufficient to conclude that Irrigation department is not discharging its functions because even if it is presumed that the outlets been sanctioned legally but no authority has been conferred upon these persons to utilize water more than the sanctioned size by tampering with the outlet under the circumstances, we direct the Secretary Irrigation to visit all the outlets personally, a list of which has been provided by the Chief Engineer alongwith the DIG and other force, if necessary and ensure that all these persons to whom outlets have been sanctioned, strictly comply with the sanction. Lie should also examine all the cases separately and, I ffound against the law, issue the notices to the owners. He shall take action as per law and shall submit comprehensive report on 3.12.2013 at Islamabad. Lie would also intimate, all the persons whose names have been mentioned in the list and those whose cases shall be examined by him to appear, if they so desire before the Court at Islamabad on 3.12.2013.
3. It is informed by the Secretary Irrigation, Sindh, in his report that he has visited the sites and all possible measures are being taken to redress the grievance of the petitioners. He, categorically states that as far as the tempering of the outlets is concerned, the same is stopped and the farmers/zamindars are bound to use the water according to their sanctioned limits and there would be strict supervision to ensure that no violation of Sindh Irrigation Act; 1879 is committed.
4. It has also been informed by the D.P.O. Badin that a fresh case F.I.R. No, 121 of 2013 under section 430, PPC has been registered on the complaint of Sub-Engineer Irrigation Pir Sakhi Section and he has issued instructions to the SOPOs and SHOs to fully co-operate with the staff of the irrigation department and take prompt action against the farmers/zamindars on the ,complaints of the irrigation department. We feel that the provisions of the Sindh Irrigation Act. 1879 are required to be strictly observed so that nobody can encroach upon the rights of others; as the farmers are earning their livelihood to protect and secure their own life and their families, which is a fundamental right guaranteed under Article 9 of the Constitution.
5. The petitioners are present in person and state that after passing the order, proceedings have been initiated as a result whereof the farmers/zamindars, whose lands are situated at the tail of the canal, are also getting their share. It may be the position, but the same is not being given to them according to their share. The Chief Engineer Irrigation, present in Court, states that in future there shall be no violation of the-Act by any of the farmer/zamindar, and if any one violates the same, he will be dealt with in accordance with law. However, he seeks an observation from the Court that local police shall cooperate with them. Though it has already been observed, yet we direct D.I.G. Hyderabad and D.P.Os. Of the Districts under his control to take action against the persons involved in water theft etc. It may not be out of context to mention that before approaching the police authorities, the irrigation authorities shall satisfy that there is violation of law. Moreover, the provisions of section 28 of the Sindh Irrigation Act shall be strictly observed, so that nobody could take the law in his hands.
6. Thus for the foregoing reasons and the observations made hereinabove, the instant petition stands disposed of. Leave