ADNAN-UL-KARIM MEMON, J.---Since the facts are common, hence all the above numbered petitions are being disposed of by this common order with the consent of learned counsel for the parties and learned A.A.G.
2. As per pleadings of the parties, petitioners own agricultural lands situated in. Hyderabad, Shaheed Benazirabad and Mirpurkhas Divisions, which are settled on different water courses, seeking declaration to the effect that they are khatedars and are entitled to water share to irrigate and mature their crops in accordance with the share list.
3. All the learned Counsel for the petition ers argued that threats by the respondents to stop water supply to the lands of the petitioners are illegal, against the law and equity; that the official respondents are bound to supply water to the lands of the petitioners in accordance with Irrigation Act; that the people have right to have access to safe drinking water and to irrigate their lands; that water supply to the petitioner s is either illegally denied or is disturbed by the official respondents arbitrarily and at their whims in exercise of authority not vested in them and even without providing an opportunity of hearing to the khatedars; that due to mismanagement of the irrigation authorities the tail enders are seriously affected. They also raised their voice of concern with regard to their other water related issues, which are not being addressed by the irrigation authorities. Having explained their grievances prayed for allowing the instant petitions.
4. Mr. Allah Bachayo Soomro learned Additional Advocate General, Sindh has assa iled the maintainability of instant petitions. He prayed that the petitioners have no case; the same may be rejected in the interest of justice. However , he agreed to the extent of equitable distribution of water supply amongst all khatedars.
5. We have heard learned Counsel for 'the parties and perused the material available on record. Before discussing the issue at hand, it must be kept in mind that Article 9 of the Constitution provides right to life and the right to receive water to irrigate agricultural land is indeed a fundamental right., however , such right is subject to irrigation laws and rules.
6. Prima-facie, the basic issue involved in the present proceedings is distribution of water to the lands of lawful Khatedars of the concerned area in accordance with Sindh Irrigation Act. The official respondents along with others have allegedly attempted to obstruct the water supply to the petitioners' lands and in some of the cases have allegedly closed or blocked the source of water supply to them and/or threatened to close the water source through force, in order to accommodate khatedar s of their choice irrespective of their entitlement and created bottlenecks for their water related issues involved in the present proceedings.
7. It appears from the record that the issue as raised in the present proceedings has already been set at rest by Honorable Supreme Court in the case of Action Against Giving of Direct outlets from Naseer Branch Rohri Canal by Chief Minister Sindh reported as 2014 SCMR 353. A perusal of said judgment shows that certain outlets were either sanctioned in violation of law or in relaxation of the ban, imposed by the Government of Sindh vide letter No.2/687-S.O. (OP)/70-V ol-III, dated 02-01-1999,in favour of influential and interested persons and consequently , the lands of Khatedars situated at tail end were not getting water according to their share, as before reaching the tail, the entire water was consumed by upper riparian's. The Khatedars raised their voice of concern to protect their rights. The Honorable Supreme Court took Suo-Motu notice in the above-cited case an excerpt whereof is reproduced below: "In such view of the matter , we direct the Secretary , Irrigation that immediately he should take action to protect their interest. Here we deem it appropriate to reproduce operative part of the report of the learned District and 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" x 2" inches but after tampering; the same were found up to 1 to 2 feel 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 up to 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 tall and it was not flowing at sanctioned level at the tail of Sangi Phraho. 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."
8. As regards the issue involved in the present proceedings, this Court vide judgment dated 18.4.2019 passed in C.P. No. 1375-D of 2017 directed the competent authority of Irrigation Department to ensure supply of water to the entitled khatedars in accordance with share list. The aforesaid judgment was assailed before the Honorable Supreme Court in Civil Petition No. 410-K of 2019 which was disposed of in the following terms: "Learned counsel for the petitioners has impugned the judgment dated 18.4.2019, whereby the issue as to the supply of water to the petitioners' land, which, according to the learned counsel, is being curtailed. Learned Additional Advocate General along-with Secretary Irrigation Department, Government of Sindh have filed their comments, duly signed by Secretary Irrigation and Managing Director , SIDA, Hyderabad, which read as under:- "As permanent relief relocation of head regular of Bilori Minor has been provided in ADP 2019-20, at Sr.No.1 113 which is in process and will facilitate restoration of original source of irrigation water supply to the petitioner and others in due course of time".
Learned Bench of the High Court, already seized of the matter , in terms of para No.23 of the impugned judgment has directed for compliance report before the Assistant Registrar of High Court. Since High Court itself is regulating and supervising the issue as urged in the petition, we are not inclined to interfere in the matter which is purely between the two departments and as stated by the learned Additional Advocate General same will be resolved on permanent basis no sooner the scheme allocated to ADB is executed for which funds are allocated it is expected that such scheme is materialized. The High Court will ensure that its orders are complied with in letter and spirit.
The authority shall ensure to supply water from either of the available source of supply in accordance with share list. In this view of matter , we are not inclined to interfere in the impugned judgment. Petition disposed of"
9. The above orders passed by the Honorable Supreme Court resolve the issue, which is also subject matter of these petitions. Learned counsel for the petitioners took us through various provisions of Sindh Irrigation Act, and demonstrated that sanctioned watercourses were personal properties of individual landowners, who were required to construct and maintain them from their own resources in terms of Sindh Irrigation Act. Be that as it may, no authority has been conferred upon the khatedars to utilize water more than their sanctioned share as per the prescribed share list and the Irrigation Department is bound to ensure this.
10. Further , we have noticed that Section 16 of Sindh Irrigation Act requires that any person with permission of duly empowered Canal Officer may construct watercourse for his land after obtaining consent of owners of the land.
Under Section 17 of the Act, land may even be acquired to enable a person to construct the watercourse to irrigate his land and it may also cause to be constructed by the Canal Officer, but all expenses would be borne by the person applying for construction of watercourse. Any person desirous of obtaining the benefit of such watercourse may also apply for joint ownership thereof and upon paying his share in constructi on can be benefited. Section 21 of the Act, however , deals with rights and obligations of owners of watercourses and apart from requiring them to maintain them, confers upon such owners a right to have supply of water on such terms as prescribed in the relevant Rules.
11. A reading of above provisiohs show that though receiving of water in terms of Section 21 is the right of petitioners, but it is subject to water sharing policy as discussed in the preceding paragraphs. Such right, however , would not be translated to mean depriving other khatedars, even at tail end from their due share in the water . The water sharing policy is to maintain equitable distribution of water to benefits of all khatedars including those at the tail end of water course/source.
12. A perusal of record and consideration 'of contention of petitioners raised before us has persuaded us to believe that the issue involved in the present proceedings is distribution of water to the lands of genuine Khatedars of the area concerned in accordance with Sindh Irrigation Act. Distribution of water according to its availability in equitable manner without discrimination to sanctioned channels in accordance with Sindh Irrigation Act is the sole responsibility of Irrigation Department, Government of Sindh.
13. There are three (03) Barrages in Sindh Province viz. Guddu, Sukkur and Kotri, which provide required water to the lands in Sindh. The pivotal issue as stated above is equitable distribution of irrigation water by the Irrigation Department and other ancillary water related issues of Khatedars. The Irrigation Department and/or all its officials are under statutory obligation not only to perform their duty in conformity with the policy of equitable distribution of water , but also to keep close and constant vigilance and supervision to ensure uninterrupted supply of water to the lands as per the prescribed share lists and also to take action against illegal connections.
14. In view of the main grievance of the petitioners discussed above, we hold that Irrigation Department shall ensure supply of water to every khatedaras per his share prescribed in the share list; and shall take action forthwith according to law against such khatedars who have violated or violate the law by tampering with the sanctioned modules and/or by changing the watercourse and/or by creating obstruction in the water supply of other khatedars.
15. The Irrigation Act provides a complete mechanism for equitable distribution of water amongst khatedars and remedies for redressal of their other water related grievances, which exercise cannot be undertaken by this Court under Article 199 of the Constitution and it is for the official respondents to take prompt action to redress the genuine grievances of the khatedars.
16. In all these petitions allegations have been made by the petitioners against Irrigation Department regarding unfair distribution or stoppage of water supply at the instance of influential persons private parties, illegal change/cancellation of the watercourse or refusal to change the watercourse. According to the petitioners, they were constrained to file these petitions as the Government functionaries had failed to discharge their functions according to law. However , it may be observed that in all the cases / situations discussed above, an aggrieved person has to first avail the remedy provid ed to him by law before the competent authority of Irrigation Department and he must exhaust such remedy before approaching this Court instead of bypassing the appellate forum. Office is, therefore, directed to entertain only such petitions in future wherein all remedies, including remedies provided under the Irrigation Act and/or litigation before any forum, have been fully exhausted by the person before approaching this Court.
17. In view of the above discussion, the competent authority of the respondent-department is directed to ensure regular of supply of water to the lands of the petitioners and khatedars/land owners in the Province of Sindh according to the Irrigation Act, and grievances/complaints, if any, placed before them by the aggrieved khatedars shall be addressed/ decided promptly within a period not exceeding thirty (30) days from the date of complaints strictly in accordance with law after providing opportunity of hearing to all concerned. Issue notice to the Chief Secretary Sindh and the Secretary Irrigation Department, Government of Sindh, to ensure compliance of the above directions in letter and spirit.
18. All these petitions and applications pending therein stand disposed of in the above terms with no order as to costs.