IFTIKHAR MUHAMMAD CHAUDHARY, J.-- Brief facts for the disposal of this petition are that respondent No. 1 filed an application before District Water Committee praying for issuance of 'No Objection Certificate, under the provisions of Baluchistan Ground Water Rights Ordinance 1978 (hereinafter referred to as 'the Ordinance') for excavating a tubewell in Killi Katir situated at Kuchlak, District Quetta, as such, certificate dated 30th of May, 1990 was issued to respondent.
2. The petitioner Abdul Rahim feeling aggrieved from the order of issuance of 'No Objection Certificate' challenged it before appellate authority i.e. Commissioner, Quetta Division, who accepted the appeal and remanded the case to District Water Committee vide order dated 20th of July, 1990.
3. On remand of case, after hearing the parties the District Water Committee, dismissed the application of petitioner vide order dated 01-9-1990 mainly for the reason that Government of Baluchistan has imposed ban on sinking of new boring by private individuals in Quetta Valley. The order of District Water Committee reads as under :- "Parties present and heard in person.
After lengthy discussion/delebration the Committee unanimously rejected the application submitted by Mr. Inayatullah with the. Remarks that:- "The Government of Baluchistan in the Planning and Development Department, Quetta has imposed ban on sinking of new boring by the private individuals in Quetta Valley and Cantonment, the request made by the applicant cannot be acceded to because the applicant wants to sink a new boring."
The respondent No.1 filed appeal against above said order before Appellate Authority i.e. Commissioner, Quetta Division who heard the case on 10th of November, 1990, however during arguments it was pointed out that Provincial Water Board vide order dated 4th October, 1990, had already allowed the respondent No.1 permission for sinking tubewell in view of this factual position following order was passed:- "10-11-1990: The Provincial Water Board vide its order dated 4th October, 1991 has allowed the appellant's prayer for installation of the tubewell. The appeal has thus become infructuous and is disposed of accordingly. Record of the case be returned to the lower court."
The petitioners have now assailed the order of Provincial Water Board in this Constitution petition.
4. In support of petition, Mr. M. Zafar, learned counsel for petitioners has contended as follows:-
(i) The Provincial Water Board has no jurisdiction under the Ordinance to issue 'No Objection Certificate' to respondent No.1 as District Water Committee has been authorized to issue 'No Objection Certificate, for excavation of New Tubewell, that too, after hearing the concerned parties therefore, the order dated 4th October, 1990 has been passed without jurisdiction.
(ii) The Provincial Water Board passed order impugned in petition without hearing the parties as such, order dated 9.10.1990 being in violation of principle of audi-alterum-partum is liable to be declared as without lawful authority.
5. On the other hand, Mr. Ehsanul Haq, learned counsel for respondent No.1 has contended as follows:-
(i) The petition is not maintainable because in pursuance of order of Provincial Water Board respondent No.1 has completed the excavation of tubewell and now no further excavation work is to be done, in support of this plea, he filed an under-taking in the court to the effect that no further excavation will be carried out in the tubewell, resultantly he requested that petition may be dismissed.
(ii) The petitioners even on merits have no case because in the objection filed by them before District Water Committee, they have not stated that if respondent No.1 will succeed in excavating the well it will adversely effect their existing tubewells.
(iii) The District Water Committee had also obtained report from the Revenue Staffs, copies whereof are available on record, according to reports, the respondent No.1 is excavating his tube well at a distance which is sufficiently away from 'Riwajee' distance.
(iv) The Provincial Water Board in exercise of jurisdiction under section 4 clause (P) of Ordinance, has authorized the respondent No.1 to excavate the well and the order has been passed with lawful authority and jurisdiction.
(v) The relief in writ jurisdiction is of discretionary in nature and even if it is held that order of Provincial Water Board is illegal and void still keeping in view the circumstances of this case regarding completion ofn tubewell, discretion may not be exercised in favour of petitioner and petition may be dismissed.
6. We have heard both the learned counsel and have also perused the record placed before us.
7. In order to resolve the controversy relating to the jurisdiction of Provincial Water Board, it is necessary to examine the provisions of Ordinance of 1978, whereby Provincial Water Board has been empowered to exercise revisional jurisdiction under section 4 sub-section-(P) for reference aforesaid subsection-(P) of section-4 is reproduced below: -
(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 these proceedings. It may set aside any of the order and quash the proceedings, if it considers that any material irregularity has occurred so as to occasion a miscarriage to justice."
7. The above provision of law can be bifurcated into two parts, firstly by virtue of which Board has been empowered to call for record of case pending before District Water Committee and Commissioner relating to the water rights in order to satisfy itself in respect of regularity, propriety and legality of the proceedings whereas secondly the Board enjoys jurisdiction to set aside the order or to quash the proceedings if it is found that material irregularity has been committed in the proceedings, which has occasioned miscarriage to justice, as such it is abundantly clear that Provincial Water Board enjoys the jurisdiction of supervisory nature in order to control the proceedings of lower forums however, Board does not enjoy powers for passing any order deems fit in the circumstances of case, if on having been satisfied that the order and proceedings pending before lower functionaries suffer from material irregularity then after setting aside the order or quashing the proceedings it would be the legal duty of the Board to remit the case to Commissioner or District Water Committee, as the case may be.
8. In view of above observations, the perusal of impugned order makes it clear that Board has exercised jurisdiction which was not available under aforesaid law hence the order is declared void and illegal.
9. Evidently impugned order was passed by the Board without hearing other side, therefore, on this score also the order is not sustainable in the eye of law.
10. Now reverting back towards the other contentions of learned Counsel of respondent namely that even if it is held that order of Provincial Water Board in void still under peculiar circumstances of this case, writ may not be issued because in complainanc of order of Provincial Water Board, excavation of tubewell has already been completed and presently water is flowing out of it.
This position has not been controverted on record. It is pertinent to note that petitioner except challenging validity of impugned order has not sought any relief in this Constitution petition. Now after completion of the well the whole complexion of dispute between the parties has altogether changed. In the peculiar situation, when well is already complete in pursuance of order which otherwise cannot withstand to the test at the touch stone of law as such, issuance of writ is likely to cause serious complication. We may observe here that provisions of Baluchistan under ground Water Rights Administration Ordinance, otherwise provide adequate remedy, and aggrieved party can approach the specified authority for effective redress keeping, in view changed factual position and settled law about right being discretionary relief cannot be granted merely for academic purpose. Reliance can be placed on case of Federation of Pakistan Vs. Mohammad Saifullah Khan reported in PLD 1989 S.C. Page-166. Relevant para reads as under:- "The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him the relief, if greater than harm is likely to be caused thereby than the one sought to be remedied. It is well settled that individual interest must be subordinated to the collective good."
In view of the above principle enunciated by the Hon'ble Supreme Court and subject to observations made hereinabove, we are not inclined to allow the petition, which is hereby dismissed with no order as to costs.