' MIAN SAEEDUR REHMAN FARRUKH, J.---The appellants have assailed the legality and vires of the order dated 6-10-1991, passed by a learned Single Judge in chamber, whereby, while disposing of the contempt application moved against the Political Assistant and Hill-Torrent Officer, Dera Ghazi Khan, a direction was issued for removal of Bunds and obstructions constructed by them (appellants) for irrigating their lands from the water flowing in the hill-torrents, namely, Sufaido and Jhelo of village Karro.
2. Earlier, Ibrahim (respondent No,5) alongwith five others instituted a suit before the Political Assistant, D.G. Khan, under section 3/4 of the Civil Procedure (Special Provision) Ordinance, 1968 for issuance of permanent injunction restraining the defendants (appellants herein) from unauthorized construction of Bunds inside the hilly area of village Okaroo, de-excluded area, D.G.
Khan and also to refrain from obstructing the flow of water in the beds of hill-torrents, namely, Sufaido, Jhelo and Bairoot. This suit was referred to Jirga under section 4 of the Civil Procedure (Special Provision) Ordinance, 1968 for its verdict. A report was submitted by the Jirga on 2-2-1972 for dismissal of the suit, whereupon the Political Assistant dismissed the suit on 5-6-1972. Appeal failed before the Commissioner, Multan Division. However, the Provincial Law Secretary accepted the revision and the matter was remanded vide order, dated 27-11-1973 for production of additional evidence by the plaintiffs. It is during the post remand proceedings that Allah Bakhsh (respondent No,1 herein), on his motion, was impleaded as a party.
2-A. After remand, the suit was again referred to another Jirga, which again recommended for dismissal of the same. The Political Assistant, accordingly, dismissed the suit on 14-1-1979. Appeals and revisions met with failure before the Commissioner and Provincial Law Secretary respectively.
Feeling aggrieved by the order of the Law Secretary dated 4-10-1982 two writ petitions were filed: one by Ibrahim and others and the other by Allah Bakhsh. Ibrahim and others withdrew their wirt petition (No,1343 of 1982) while the writ petition of Allah Bakhsh (No,1311 of 1982) was proceeded with further on merits.
3. On 8-3-1989 both the parties agreed in writing that a commission/referee be appointed to inspect the said three hill-torrents and report if the appellants had built bunds in the beds of the said torrents depriving the respondent of water for irrigating his land. If it was found that Bunds had been constructed in the beds of the three hill-torrents, then the appellants would remove the same and in case it was found that no obstruction had been built, then the respondent herein would withdraw the writ petition. Consequently, the Hill-Torrent Officer, D.G. Khan was appointed as refereeto inspect the three hill-torrents to report as if any Bund had been constructed in the beds of the said torrents depriving the petitioner (respondent herein) and his tribesmen living towards downstream of water for irrigating their lands.
4. In pursuance of the aforesaid order, the Hill Torrent Officer visited the spot in the presence of the parties and prepared a rough plan showing the obstructions raised in the bed of Rodh Sufaido and Churs (tributaries).
' According to him, up to four miles inside the hills obstructions were noticed. Regarding Rodh Jhelo, it was reported that up to five kilometres inside the hills obstructions/Bunds were noticed in the bed of this torrent. About the third torrent the parties agreed that there were no obstructions and consequently, it was not surveyed. It was submitted thai his authority extended up to the plain area while the area falling in the hills was under the jurisdiction of the Political Assistant, the same being tribal area.
5. On 24-4-1989 the Political Assistant of D.G. Khan was directed to submit a report in terms of the order, dated 8-3-1989. The Political Assistant submitted report on 10-6-1989 which may be reproduced in extenso:--- "I, myself, have inspected all the three Hill-Torrents namely "Sufaido", "Jhelo" and "Bairoot" of village Karro, on 31-5-1989 in view of the detailed order, dated 8-3-1989. I found that the beds of all the three aforesaid Hill-Torrents are not clear and the people, including the respondents, have built bunds for irrigation of their lands. Due to obstructions in the beds of all the three Hill-Torrents, the petitioners are deprived of their rights."
' The matter was finally taken up by the learned Single Judge on 7-4-1991. Learned counsel for the parties agreed that instead of remanding the case to respondent No,1 in the writ petition for disposal of the revision petition filed by the writ petitioner, the matter may be disposed of in terms of the report of the Political Assistant by ordering the Hill-Torrent Officer and the Political Assistant, D.G. Khan to remove the Bunds and obstructions in the beds of the three torrents so as to ensure the flow of water in the fields downstream without any hindrance.
6. Consequently, the writ petition was disposed of with the following directions:--- "The Political Assistant, Dera Ghazi Khan and Hill-Torrent Officer are hereby directed to remove the Bunds in the beds of the three Hill-Torrents namely Sufaido, Jhelo and Bairoot due to which the flow of water in the beds of the said Hill-Torrents has been blocked and the petitioner has been deprived of his right for irrigating his land so that the water in the bed of the said Hill-Torrents flow down stream without any obstruction. The needful shall be done within three weeks and compliance shall be reported to the Additional Registrar of this Court. The parties are left to bear their own costs. The Writ petition stands disposed of in the above terms."
7. In pursuance of the directions contained in the judgment dated 7-4-1991, the Political Assistant visited the spot on 18-5-1991 alongwith the Hill-Torrent Officer, and in the presence of the parties, removed the obstructions found in the beds of hill-torrents, namely, Sufaido and Jhelo. No obstruction was found in the bed of hill-torrent Bairoot. He submitted a compliance report to this Court on 23-5-1991.
8. Thereafter, Criminal Original No,82-W of 1991 in W.P. No,1311 of 1982 was filed by Allah Bakhsh respondent in this Court against the Political Assistant as well as the Hill-Torrent Officer. It was contended that both the respondents had disobeyed the order/direction of this Court as contained in the judgment dated 7-4-1991. It was submitted that the respondents failed to appreciate that the Hill-Torrents in the upper reaches of the hilly area have no settled and demarcated lines of bed like a canal emerging from a river and the water tends to spread and in a zig-zag manner flows towards the lower reaches, and all the zig-zag lines of flow would comprise their beds and any obstruction created over those zig-zag lines of flow would prevent water from reaching the lower area to irrigate the land of respondent No,1 herein. It was submitted that the obstructions created in the upper reaches of the hilly area were also to be removed, but despite "entreaties" the respondents in the contempt petition had failed to remove the same and thus had committed contempt of Court.
' Notice was issued to the Political Assistant and the Hill-Torrent Officer. The Hill-Torrent Officer filed this reply on 15-4-1991. He submitted that he accompanied the Political Assistant on 18-5-1991 who got cleared all the obstructions in the beds of the Torrents "as we understood at the spot", and that no contempt was committed. Same day following order was passed:--- "Malik Shafiq Ahmad, Hill-Torrent Officer shall submit a report as to what is the extent of land of Allah Bakhsh petitioner which is to be irrigated from the Hill-Torrents in dispute and whether the said area is getting sufficient water from the said Hill-Torrent in spite of alleged blockade. The report shall be submitted within two weeks.
(2) TO come up on 2-10-1991."
10. In pursuance of the aforesaid order, the Hill-Torrent Officer submitted a report, inter alia, to the effect that the catchment area of the hill torent in question was the adjoining range of small hills and the embankment of fields scattered over there obstructed the final discharge of the water at the foot of these hills resulting in depreciation of water supply to the lands located there.
' The matter was finally placed before the learned Single Judge in chamber on 6-10-1991, who after hearing the parties and perusing the report of the Hill-Torrent Officer, issued a direction that the Bunds constructed by the respondents in the writ petition for irrigating their lands, adversely affecting the flow of water to the downstream, should be removed. The petitioner in the contempt petition was allowed to clear the obstructions at his own expense, under the supervision of the Hill- Torrest Officer and the Political Assistant. The Criminal Original was disposed of in the above terms.
11. The appellants, who claim to be the occupants/owners of lands in the upper reaches of the hills, feeling aggrieved of the above order, have filed the present appeal.
12. It is contended by the learned counsel for the appellants that: (i) the parties to the writ petition had agreed that the obstructions in the bed of the hill-torrents, as found by the Hill-Torrent Officer, be removed. The Political Assistant, in the presence of the Hill-Torrent Officer, having removed the obstructions submitted a report and no exception could be taken with regard thereto by either of the parties as per law and, in fact, the contempt petition moved by respondent No,1 herein was an attempt to back out of his solemn commitment of entrusting the matter to the Hill-Torrent Officer as referee; (ii) it was specifically agreed that it was only the obstructions in the beds of the hill- torrents which were to be cleared. Respondent No,1 is not justified to later on make an attempt for overreaching the agreed terms of the reference and claim that even the upper parts of the hills should also be cleared, in that the water falling from the heavens on the hills could be lawfully utilised by those living there for agriculture over the small plots of land carved out at different places; and (iii) the learned Single Judge in chamber, while being seized of the contempt matter, could not, in any case, enlarge the scope of inquiry relating to the action complained of by asking for report as to whether the area of Allah Bakhsh respondent was getting sufficient water or not.
The consequential order for removal of the blockades in the upper reaches (with the purported object of restoring full supply of water to him) which would adversely affect the appellants, was liable to be set aside.
' In elaboration of the above formulations, learned counsel for the appellants has argued that the term 'bed' not having been defined in any law applicable to the situation in hand, its dictionary meanings will have to be followed. In Black's Law Dictionary the word 'bed' is defined as follows:--- "The hollow or channel of a watercourse; the depression between the banks worn by the regular and usual flow of the water. The land that is covered by the water in its ordinary low stage. Area extending between the opposing banks measured from the foot of the banks from the top of the water at its ordinary stage, including sand bars which may exist between the foot of said banks as thus defined."
' According to the learned counsel, the water coming down from the ridges of the hills could not be termed to be flowing through bed of the hill-torrents and, therefore, there is no justification available for a direction regarding the demolition/removal of the obstructions created for irrigating small fields in upper part of the hills by the appellants. According to the learned counsel, the learned Single Judge in chamber has erred in law, while being seized of the contempt matter, in giving the impugned direction which, in effect, amounts to reviewing the judgment passed in the writ petition. It is pointed out that the appellants, who are living in the hills and have carved out small fields thereby creating embankments around the same so as to eke out their living, would be ruined and dislodged if those embankments are also demolished.
13. On the contrary, Mr. Faiz Muhammad Khan Khosa, learned counsel for the respondents, has raised a preliminary objection with regard to the maintainability of the appeal. According to him, under section 10 of the Contempt of Court Act only such orders are appealable in which conviction is recorded. In this connection he has relied on West Pakistan Water and Power Development Authority v. Chairman, National Industrial Relations Commission PLD 1979 SC 912.
' We are afraid, this is not so. The facts of the present case are distinguishable. In the precedent case the High Court while being seized of contempt matter, found the case not fit for taking action under the Contempt of Court Act and thus declined to proceed further. The Supreme Court refused to interfere and observed that the matter of contempt was essentially between the Court and the contemner, and the Court concerned, for reasons of its own and in exercise of its discretion not having felt inclined to take any action, the case was not fit for interference by the Supreme Court.
' It is not denied that in case the obstructions existing in the upper reaches of the hills are removed, the appellants would be adversely affected. The impugned order is, therefore, open to be appealed against by the appellants, and in this view of the matter the present appeal is competent.
14. It was then contended that the direction regarding the removal of the obstructions in the beds of the hill-torrents were issued to ensure adequate supply of irrigating water to the writ petitioner, and since part of the water was being retained by the appellants in the upper reaches, it had been rightly concluded by the learned Single Judge in chamber that the said water was also to be made available to the respondents by removing the obstructions in the upper reaches.
15. In order to appreciate the physical position obtaining at the spot, we summoned the Hill-Torrent Officer. He drew our attention to the plan prepared by him at the time of removal of the obstructions in the beds of two hill-torrents, namely, Sufaido and Jhelo in compliance with the order dated 8-3-1989. He submitted that not only the beds of the hill-torrents were got cleared, but so also some of their tributaries. According to him, few hundred persons are living in the upper reaches of these hills and the main source of their livelihood is agriculture. Since there was no spring water available, the only source of irrigation was the rain falling on the hills water whereof was partly diverted by those persons to their fields through embankments raised there.
16. No notification in terms of section 10, defining the bed of Nullah, which term includes "hill-torrent" vide section 2(b) of the Punjab Land Preservation Act, 1900 has been issued so far by the Deputy Commissioner in respect of hill-torrents Sufaido and Jhelo and, in any case, none was brought to our notice.
We are not in agreement with the learned counsel for the respondents that even the upper area of the hills as well as the ridges would also constitute bed of these torrents, inasmuch as 'bed' has a definite connotation and will have to be construed to be the locale in the lower part of the hills where there is a regular flow of water as and when rain falls on the hills and water gushes down.
Small trickling streams come to life in the hills during rains and in their downward course converge into tributaries. Even the meandering of a tributary, like many others, leading to the formation and emergence of a hill-torrent, cannot be termed to be the bed of said torrent.
' Whether or not the entire land of the respondent was being irrigated through the supply of water downstream, in our view, was beside the point in issue.
17. No objection was raised to the report of the Political Assistant dated 10-6-1989. The task assigned to him and the Hill-Torrent Officer on the basis of the report having been complied with, the respondent should have felt satisfied therewith. Since under the law no objection petition to the proceedings taken by the referee was competent, the respondent thought of an ingenious plan of filing the contempt application with a view to indirectly challenge his report. Further reports in the matter were not called for from the officer, nor the direction contained in the impugned order could have been issued, in that it amounted to enlarging the scope of reference which already stood exhausted vide compliance report dated 23-5-1991.
' It is clear that if this direction is complied with, the appellants would be forced to leave their places of abode in the upper parts of the hills as not a drop of water would be available even for drinking purposes to the appellants and their animals, much less for irrigating their fields.
18. At the fag-end of the arguments, learned counsel for the respondents tried to rely on some provisions of the Punjab Minor Canals Act, 1905, with a view to argue that since in the earlier settlement there was a provision that no obstructions would be raised in the upper part of the hills, the appellants could not raise any objection qua the impugned order.
This argument is misconceived, in that Rawaj-i-Haqooq-i-Aabpashi, 1919 is stated to have been prepared under the Punjab Minor Canals Act, 1905. Vide section 1, the provisions of the said Act are not applicable to the tribal area, and it is not denied that the upper reaches of the hill-torrents in question fall within the tribal belt. Furthermore, the hill-torrents, namely Sufaido and Jhelo, do not find mention in Schedules 1 and 2 of the Act and as such the reference to settlement of 1919 is misdirected.
19. Lastly, no direction of the kind issued in the present case during the course of hearing of contempt matter, could be given, as the Court can either hold the respondent guilty or discharge him. Even further time for obeying order of the Court could not be granted, much less specifically ordering him to comply with the order passed in the writ petition. See Federation of Pakistan v. H.
Ghulam Mohyuddin PLD 1960 (W.P.) Lah.
677.
20. The upshot of the above discussion is that the impugned order is not sustainable in law.
Consequently, the appeal is accepted and the same is set aside, with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.