2007 PLP 2179 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

Ghulam Fareed petitioner through this constitutional petition seeks annulment of the order dated 12-9-2002 passed by Divisional Canal Officer/ respondent No.1 directing restoration of KHAAL under section 68-A of the Canal and Drainage Act. At the time of limine hearing on 2-2-2007 it was submitted by learned counsel for the petitioner that as the impugned order was passed without any notice and inquiry, hence, was without jurisdiction. In this view of the matter, respondent No.1 was directed to appear and explain the position. Today Ch. Muhammad Hussain Jahania, Advocate has appeared to represent both the respondents, respondent No.1 is also present in person along with record.

2. The respondent No.1 has voluntarily filed reply. to this petition, wherein, it has been submitted that the order dated 12-9-2006 having been implemented on 14-9-2006 the KHAAL was restored- in terms of said order, however, the petitioner later on again dismantled the restored KHAAL on 19-1-2007 and through the order dated 22-1-2007 the same has again been ordered to be restored, therefore, the order dated 12-9-2006 impugned in this petition being not in the field having merged in the last order dated 22-1-2007, the writ petition is not maintainable and .the petitioner may, if feels aggrieved, challenge the same afresh.

3. Learned counsel for the petitioner submits that since the very order dated 12-9-2006 was passed without notice and in the absence of the petitioner, therefore, same was not only void but also having no binding effect on the petitioner and all the subsequent proceedings conducted being outcome of a void order, are also not " sustainable.

4. On the other hand, learned counsel for the respondents in the light of the amended provision of section 68-A of the Canal and Drainage Act submits that Sub-Divisional Canal Officer after getting the matter inquired into through Field Staff and after hearing " the petitioner submitted his report that the petitioner after restoration of the KHAAL in terms of order dated 12-9-2006 again dismantled the same on 14-1-2007, therefore, the same was liable to be restored, as such, according to the learned counsel the petitioner cannot say that he was either condemned unheard or the said order was passed without notice because in terms of amended section 68-A of the Canal and Drainage Act, the Sub-Divisional Canal Officer had to hold such inquiry as he deemed necessary, meaning thereby that it was not essential for the Sub-Divisional Canal Officer to hold inquiry personally and in case the matter was got inquired into through the Field Staff the same was sufficient compliance of section 68-A of the Canal and Drainage Act as amended by Canal and Drainage (Amendment) Act 2006 (XVII of 2006).

5. I have considered the arguments of learned counsel for the parties and have also gone through the available record.

6. At the very outset, I have no doubt in my mind that after section 68-A of the Canal and Drainage Act as amended by Canal and Drainage (Amendment) Act 2006 (XVII of 2006), re-produced below:-- "

25. Substitution of section 68-A in Act VIII of 1873.

In the said Act, section 68-A shall be substituted by the following:- 68-A. Power to restore interrupted supply.

(1) If canal-water supply of any land is interrupted by dismantling' a water-course or internal Khal, the Sub-Divisional Canal Officer, may, upon application made in this behalf and after such enquiry as he deems necessary, order interim restoration of the dismantled water-course or the internal khal and the interrupted supply of water at the cost of person who interrupted the supply and if necessary by use of such agency or force as may be called for and such order shall remain in force until the dispute is finally settled under section 68 and, if necessary a water-course link is constructed under this Act." (underlining by this Court). the Sub-Divisional Canal Officer before passing any order for the restoration of dismantled water-course or internal KHAAL has to hold inquiry himself and neither such. inquiry can be got conducted through Field Staff nor any report submitted by the Field Staff can be utilized before passing any order under section 68-A of the Canal and Drainage Act as amended. It is established principle of law that when law requires a thing to be done in a particular way the same must be done in that way and anything done or action taken in a manner other than the one required by law, is not legal compliance of the provisions requiring performance of duty or doing any act as required by law. Reliance is placed on the case "Raja Hamayun Sarfraz Khan and others v. Noor Muhammad (2007 SCMR 307) and "Government of West Pakistan and another v. Bcgurm Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14). As admittedly before passing the order dated 12-9-2006 the Sub-Division Canal Officer himself did not hold the inquiry as required by section 68-A of the Canal and Drainage Act, therefore, the order dated 12-9-2006 having been passed on the basis of some inquiry allegedly conducted by the Field Staff cannot be considered as valid and lawful order, therefore, the said order is declared as such. The Sub-Divisional Canal Officer in future shall ensure that while acting under section 68-A of the Canal and Drainage Act as amended, and before passing order for restoration of dismantled watercourse or internal KHAAL the inquiry shall be conducted by the S.D.C.O. himself because delegate cannot further delegate his authority unless so allowed by law a held by this Court in case "Shaukat Ali v. Government of Punjab through Secretary, Industries and Mineral Department and 8 others" "(PLD 1992 Lahore 277) and "Syed Anwar Ali Shah v. Fiayaz Ali Khan and others" (PLD 1962 (W.P.) Lahore 483). So far as the contention of learned counsel for the respondents that subsequent to the order dated 12-9-2006 a fresh order dated 22-9-2006 was passed independently is concerned, I am satisfied that same was outcome of a void order dated 12-9-2006, therefore, all the proceedings conducted subsequent to the order dated 12.9-2006 are liable to be declared as without lawful authority, as it is established principle of law that subsequent proceedings conducted as a result of a void order, are also void and without lawful authority. Reliance is placed on "Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab Lahore and others" (PLD 1990 SC 1070) and "Yousaf Ali v. Muhammad Aslam Zia and 2 others" (PLD 1958 SC (Pak) 104).

7. The upshot of above discussion is that the writ petition is allowed and by declaring the order dated 12-9-2006 as well as all the subsequent proceedings as without lawful authority and of no legal effect having been passed without notice as well as inquiry as mandated in section 68-A of the Canal and Drainage Act as amended and the Sub-Divisional Canal Officer Western Bar Canal Division, Thingi District Vehari is directed to ensure fresh proceedings in terms of amended provision of section 68-A of the Canal and Drainage Act, as reproduced above. F.B./G-44/L Petition allowed.