RESIDENTS OF MAUZA MAKHOR Versus RESIDENTS OF MOUZA BIAMA KHOR
ALI BAIG, J.--- This civil revision petition has been preferred against the impugned judgment/order dated 28.11.2017 passed by learned District Judge Ghanche, whereby the learned 1st appellate Court has dismissed appeal of the present petitioners/ plaintiffs and has maintained order of the learned trial court.
2. Briefly facts forming background of this revision petition are that the present petitioners/ plaintiffs instituted a civil suit for declaration and perpetual injunction against the respondents /defendants in the trial court at Khaplu to the effect that the abrupt decision of changing site of the construction of the 500 K.W Hydel power project Keris phase-II from upstream of the channel "Chanma" to its downstream is against the decision of high power sitting board's decision dated 19.06.2014, contrary to established water rights of the plaintiffs and heavy bar/ expenditure on the government exchequer. They further averred in the heading of plaint that the arbitrary and one sided decision /action on behalf of the District Administration would not only lead to disturbance in the irrigation system, infringe the flow and usage of water in the Chanma channel which will destroy thousands Kanals of agricultural lands/trees and will also result of an unending law and order situation in the area.
3. The answering defendants /present respondents contested the suit by filing their written statements in the trial court wherein they raised certain legal objections and factual grounds.
4. Along with the plaint the present plaintiffs/petitioners had also filed an application of under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction. The learned trial court after hearing arguments on behalf of both the parties has dismissed the aforesaid application of the petitioners vide order dated 23.10.2017. Accordingly the present appellants / plaintiffs had challenged the aforesaid order of the learned trial court in the court of learned District Judge Ghanche through civil first appeal and the learned first appellate Court has also dismissed the appeal of the present petitioners/plaintiffs and has maintained the order of the trial court vide the impugned order dated 28.11.2017.
5. Feeling aggrieved from the impugned judgment/ order passed by the learned first appellate Court the petitioners have filed the instant civil revision petition in this court.
6. The learned counsel appearing on behalf of the petitioners contended that the impugned order /judgment passed by the learned first appellate Court is contrary to law and facts on the record of the case as such the impugned order passed by the learned first appellate court is not maintainable and liable to be set aside. The learned Counsel for the petitioners further argued that the Chief Engineer water and power Baltistan region had constituted sitting board consisting of Deputy Commissioner Ghanche, representative of P&D department and engineers of GB PWD Baltistan Division to settle dispute of site for construction of the power house at Keris. The said board submitted its report /proceedings and has recommended to shift power house upstream of existing channel namely Chanma, but the respondents have failed to challenge the said board proceedings in their written statements. The learned counsel for the petitioners further argued that the petitioners/plaintiffs have a good prima facie arguable case, balance of convenience is also in favour of the plaintiffs and if temporary injunction is not granted in favour of the petitioners/ plaintiffs, they will suffer irreparable loss.
7. Conversely, the learned Additional Advocate General and counsel for respondents Nos. 1 and 7 supported the impugned order passed by the learned first appellate court by contending that the petitioners /plaintiffs have no water rights and they have filed the suit in the trial court with mala fide intention. The learned Additional Advocate General and counsel for the respondents Nos. 1 and 7 further argued that the plaintiffs / petitioners have filed the suit for perpetual injunction on the presumption/ apprehension that if the proposed Hydel power house is constructed below the existing water channel, then the water rights of the local people /plaintiffs will affect and as such the injunction cannot be granted on the basis of apprehensions of the plaintiffs, hence the plaintiffs have failed to make out prima facie arguable case in their favour. The learned Additional Advocate General and counsel for respondents Nos. 1 and 7 further argued that the balance of convenience is not in favour of the plaintiffs and if temporary injunction is not granted they will not suffer any irreparable loss. Concluding their arguments the learned Additional Advocate General and counsel for the respondents Nos.1 and 7 argued that construction work of power house below the existing channel has already been started by the concerned contractor and Rs. 90,00,000/- have been paid to the respondent No.7 /contractor by PWD authorities and hence at this stage site for construction of power house cannot be changed.
8. I have given due consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
9. It is well settled principle of law that in order to succeed in obtaining an order of injunction under Order XXXIX, Rules 1 and 2, C.P.C., the plaintiff is required to demonstrate a good prima facie case in his favour, the balance of convenience must also be in favour of the plaintiff and plaintiff will likely to suffer irreparable loss and injury if injunction is not granted. No order of injunction could be granted unless all the above said three conditions for grant of injunction exist.
10. In the instant case the petitioners/plaintiffs have filed a suit for declaration and perpetual injunction on the presumption that if the disputed Hydal power house is constructed below the existing water channel known as Chanma then the water rights of the plaintiffs will be suffered /affected. The respondents Nos.4 to 6 who are responsible officers of GB PWD have assured /undertaken in their written statement that they will not violate the water rights of the plaintiffs /petitioners as provided in Rewaja-e-Abpashi of concerned village. Hence the petitioners/ plaintiffs have failed to make prima facie arguable case, balance of convenience is also not in favour of the petitioners/ plaintiffs and petitioners/plaintiffs will not suffer irreparable loss if the temporary injunction is not granted in their favour as the answering respondents Nos. 4 to 6 have undertaken that they will not violate the water rights of the petitioners as evident from their written statement. Hence injunction cannot be granted in favour of the petitioners/plaintiffs on their future presumptions/apprehensions.
11. Moreover, grant of injunction is barred by clause (d) of Section 56 of the Specific Relief Act which lays down that an injunction could not be granted to interfere with the public duties of any department of the Federal Government or Provincial Government or with the Sovereign act of foreign government. However, where the department or its officers exceed or abuse of powers conferred upon them by the legislature, this clause cannot apply.
12. Nevertheless before parting with the judgment it is observed that the respondents shall not disturb /violate the water rights of the petitioners/plaintiffs after completion of construction work of disputed Hydal power-house project as provided in Rewaj-e-Abpashi of Keris District Ghanche. If the respondents violate/ interfere in the established water rights of the petitioners/ plaintiffs after construction of Hydal power house, the plaintiffs would be at liberty to file a fresh application under Order XXXIX, Rules 1 and 2, C.P.C. grant of injunction or suit against the respondents/ defendants.
13. The upshot of above discussion is that the counsel for the petitioners has failed to point out any material illegality and irregularity in the impugned orders passed by the learned first appellate Court as well the learned trial court warranting interference by this Court. Accordingly this revision petition is dismissed with no order as to costs. Consequently the impugned order dated 28.11.2017 passed by the learned District Judge Ghanche is maintained. File after due completion be consigned to record room.
ZC/162/GB Revision dismissed.