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The Underground Water is Public Trust owned by the State --- Islamabad High Court, Islamabad

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The Underground Water is Public Trust owned by the State --- Islamabad High Court, Islamabad

Islamabad 15-05-2024: In a recent judgment, the Islamabad High Court, Islamabad issued directives regarding the regulation of underground water drainage through tube wells and its licensing in the Islamabad Capital Territory (ICT). The judgment extensively analyzed various legal provisions, including those under the Constitution of Pakistan, 1973, and pertinent statutes such as the Capital Development Authority Ordinance, 1960, the Islamabad Capital Territory Local Government Act, 2015, the WAPDA Act, 1958, the Easements Act, 1882, and the Pakistan Environmental Protection Act, 1997.

The case [WP No. 1670 of 2022] revolved around the ownership and regulation of underground water within the Islamabad Capital Territory. The court posed three crucial questions regarding water ownership, commercial tube well operations, and licensing requirements. The judgment highlighted the historical evolution of the Capital Development Authority (CDA) and its functions, particularly after the enactment of the Islamabad Capital Territory Local Government Act in 2015. The Act redistributed municipal functions, including water supply schemes, to local government bodies, aiming for decentralization and better governance.

The Court emphasized the international recognition and constitutional embedding of the Public Trust Doctrine, affirming water as a public trust and the government as a trustee of natural resources. Article 9 of the Constitution guarantees the right to life, encompassing environmental health. The judgment underscored the challenges facing water resources in the ICT, including scarcity exacerbated by population growth and urban expansion. It acknowledged efforts by the Pakistan Environmental Protection Agency (Pak-EPA) to conserve water resources and enforce regulations against illegal practices. Notably, the court directed the Federal Government to expedite approval for tax charges and license fees related to water supply within 45 days. The Municipal Corporation Islamabad (MCI) was tasked with notifying charges and initiating a licensing regulatory mechanism within specified timelines.

The Article 155 of the Constitution empowers the Council of Common Interests to address water supply matters, particularly in cases affecting multiple provinces or territories. The judgment reiterated that groundwater is owned by the state for public benefit, aligning with the principles of the Public Trust Doctrine. The judgment highlighted the global imperative to protect natural resources for future generations, echoing views from Supreme Courts of India and Canada.