1996 PLP 1747 (CLC)

Mian Muhammad Jamal for Petitioners Nasir Ahmad respondent No.3 submitted the application under section 20 of the Canal and Drainage Act before the Divisional Canal Officer, Trimu Barrage Division, District Jhang/respondent No.2 wherein he prayed that his agricultural land measuring 2 acres situated in fields Nos.21‑ and 22 of Square No.39 in Chak No. l0lGhagh Tehsil Kabirwaia may be withdrawn from the Chakbandi of Outlet No.63335/L Rajbah Ghagh and same may be affiliated for irrigation purposes in the Chakbandi of Outlet No.64690/L Rajbah Ghagh. The Divisional Canal Officer/respondent No.2 after making thorough investigation rejected the said request of respondent No.3 about the change of source of water supply vide order dated 22‑2‑1994. Thereafter, on a Review Application filed on 8‑3‑1994 the plea of respondent No.3 was accepted vide ,order dated 12‑11‑1994. The petitioners were aggrieved by the aforesaid order dated 12‑11‑1994 who filed the objection petition under section 20 of the Canal and Drainage Act before the Superintending Engineer, Haveli Canal Circle, Multan/respondent No.

1. The proposal/order of the Divisional Canal Officer(respondent No.2) was turned down vide order dated 21‑6‑1995 by the Superintending Engineer (respondent No.l). A Review Petition was filed by Nasir Ahmad respondent No.3 against order dated 21‑6‑1995 before the same Officer i.e. Superintending Engineer(respondent No. l) who vide his order dated 24‑4‑1996 accepted the same and reviewed his previous order passed on 21‑6‑1995. He, accordingly, withdrew the land of Nasir Ahmad respondent No.3 from the Chakbandi of Outlet No.63335/L Rajbah Ghagh and transferred the same in the Chakbandi of Outlet No.64690/L Rajbah Ghagh. Feeling aggrieved by the impugned order dated 24‑4‑1996 about the change of source of water supply the petitioners have filed this writ petition with the proposed relief to get set aside the impugned order dated 12‑11‑1994 of the Divisional Canal Officer/respondent No.2 and the order dated 24‑4‑1996 passed by the Superintending Engineer/respondent No. l on the ground of being without jurisdiction, without lawful authority, unjustified, ultra vires and illegal. They contended that neither the Divisional Canal Officer nor the Superintending Engineer could review their respective order dated 22‑2‑1994 and 21‑6‑1995 and that the impugned respective order dated 12‑11‑1994 and 24‑4‑1996 could not hold the water in the filed especially when neither the correct procedure was adopted nor the jurisdiction vested in the aforesaid Officers of the Canal Department to review their respective earlier order. They maintained that there was no factual or legal justification to pass the impugned order about the change of source of water supply/order of Chakbandi.

2. I have heard the preliminary arguments. At the very outset I made the query from the learned counsel for the petitioner for the maintainability of this writ petition who expressed that fundamental right of the petitioners has been infringed/violated and for that reason the writ petition is maintainable. In this regard I have to express that where the alternative efficacious remedy is available the writ petition is not maintainable. At some time it was the controversy as to whether or not a civil suit is maintainable against an order passed by the Superintending Engineer about the change of source of water supply under section 20 of the Canal and Drainage Act, 1873. However, it would be convenient to reproduce as under the following portion at page 294 of the ruling published as Fazal Din and others v. Rehmat Ullah and others (PLD 1961 (W.P.) Lahore 293 (D.B): "In the High Court, before the Judge in Chambers the appellants' counsel raised a new point, namely, that the order of the Divisional Canal Officer was one sanctioning the construction of a new water course and, therefore, fell within the ambit of section 21 and not of section 68, the civil suit being consequently incompetent. The learned Judge repelled this contention merely on the ground that it had not been raised in the first two Courts. With great‑respect, we wish to say that if we had found any substance in the contention we would have entertained it even at the present stage, because it concerned a question of law." In the aforesaid judgment the findings of the lower Courts as well as the leaned Judge in Chambers were considered and dissected.

3. In the ruling printed as Shafiq Ahmad and others v. Abudl Latif Khan and others (PLD 1961(W.P) Lahore 439) the order of the Divisional Canal Officer relating to a water‑course which was sought to be constructed in the land the decision under section 20 of the Canal and Drainage Act was challenged. The objection about the jurisdiction of the Civil Court to hear the suit was raised which was brushed aside as no weight was given to the same. The suit was decreed by the trial Court while the appeal was accepted by the District Court. However, in Second Appeal the judgment and decree of the lower Appellate Court was set aside and that of the trial Court. was restored by the High Court. In view of the aforesaid aspect of the matter I have to give my view that against any type of order passed under section 20 of the Canal and Drainage Act the Civil suit shall have to be instituted and obviously for the reasons that the question of fact have to be considered after the same are highlighted through the production of evidence. The impugned respective order dated.12‑11‑1994 passed P by the Divisional Canal Officer and 24‑4‑1996 passed by the Superintending Engineer have been challenged by the petitioners through the filing of this writ petition which according to them are illegal, void, without authority and without jurisdiction. All the averments and the assertions raised in the writ petition can be agitated before the civil Court and analysis shall have to be made/effected on the basis of the production of the evidence and submissions through arguments.

4. At this stage I would be glossing over an important aspect of the matter by expressing that even if the order is without jurisdiction, the same shall have to be got set aside by adopting the correct procedure and availing the remedy before the competent forum. In the ruling published as Muhammad Shaft etc. v. Education Authorities (NLR 1992 T.D. 728) it has been held that even if the orders of transfer of civil servants were without jurisdiction the appeal would be maintainable before the Service Tribunal because an appeal lies from an order without jurisdiction just an appeal lies from an order with jurisdiction. Due to the availability of efficacious remedy of filing the appeal before the Service Tribunal many writ petitions were disposed of with the observation that the interference by the High Court in its Constitutional jurisdiction is not warranted.

5. In view of what has been said above, I hold that if any order passed under section 20 of the Canal and Drainage Act is to be challenged the civil suit shall have to be instituted and due to the availability of the said efficacious remedy the writ petition is not maintainable. At this stage I have also to express that the civil suit shall have to be instituted if an order passed under section 68 of the Canal and Drainage Act is to be challanged/impugned and in that eventuality as well the writ petition is not maintainable. I, therefore, hold that this writ petition need not be further processed with which stands disposed of in limie with my aforesaid observations. A.A./M‑98/L Petition dismissed.