1987 PLP 1117 (CLC)

Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 and Ahmad Hussain and others v. Punjab Province and others 1987 S C M R 769 ref. Kh. Haris Ahmed for Petitioner. Muhammad Ashraf Wahlah for Respondent No.

3. Nemo for other Respondents. Date of hearing: 6th May, 1984. Order sanctioning supply of 0.1 cause water through outlet No. 72157/R, at Tarkhani Distributory, in Chak No. 204/G.B. of Tehsil Samundari, District Faisalabad to Mirza Nazir Beg petitioner passed by the Superintending Engineer Canal on 9‑12‑1981 for his fish‑farm, was challenged by respondents Nos. 1 to 4 in a civil suit to be declared illegal, ultra vires and of no effect against them for the reason of its having been passed without hearing them despite its being likely to cause reduction in the water supply duly sanctioned for them. They also prayed for a decree of permanent injunction to restrain its implementation. Alongwith the suit, they also filed an application under Order XXXIX, rule 1 of the C.P.C. for grant of a temporary injunction to the same effect. The suit, as also the application, was contested by the said beneficiary of the order under complaint, on the plea that this small quantity of water, even otherwise falling within the limit of additional water available in reserve at the outlet, is not capable of causing any reduction in the water being supplied to the plaintiffs and that water for the fish‑farm had been sanctioned in accordance with the rules framed on the subject. The official‑defendants also assured that there was no possibility of reduction in the water‑supply of the plaintiffs and that, if need may ever be, the outlet can be suitably widened. The suit appears to have still to go through the trial, but by his order, dated 6‑6‑1983, learned trial Judge accepted the application and issued the prohibitory order on the sole consideration that they had not been given notice of hearing under section 20 of the Canal and Drainage Act, VIII of 1873 before the passing of the impugned order wherefore they had got a prima facie case and will also suffer irreparable loss and inconvenience.

2. An appeal thereagainst filed by the defendant‑petitioner was dismissed on 4‑12‑1983 by a learned Additional District Judge to affirm the order of the trial Court for the reason, as he put it, that supply of water for fish‑farm does not fall within the definition of water which is supplied for agricultural purposes and, curiously enough, he himself held also as under:‑‑

"It is also evident from the letter, dated30‑9‑1964 that Superintending Engineer is competent to sanction supply of canal water for other than irrigational purposes. However, this letter also shows that this sanction will be for a period not exceeding three years. The impugned order does not show, if the supply of water has been sanctioned for how much period." Even the learned Additional District Judge proceeded on the assumption that the order for sanction of water for the fish‑farm had not been passed in accordance with the law, not specified by him, and dismissed the appeal of the defendant without attending to the question whether or not the required considerations to justify the issuance of a temporary injunction had been established. The said defendant has now come up to this Court on revision.

3. A perusal of the orders passed by the two Courts below reveals that whereas the trial Judge assumed the existence of a prima facie case in favour of the plaintiffs with reference merely to section 20 of the Canal and Drainage Act, 1873 and did not either attend to any question of right of the plaintiffs to claim the prohibition or give any reason for concluding the considerations with regard to irreparable loss and balance of inconvenience in favour of the plaintiffs, in the order passed by the learned Additional District Judge, the above‑quoted portion, does not follow as a rational conclusion of the immediately preceding observation recorded by him. It defies comprehension as to how could the absence of the mention of period in the order have led to the conclusion of invalidity thereof. More particularly so, when there is the requirement of the execution of an agreement before the actual supply and the limit of period had to be incorporated in it in accordance with the policy. Learned Judge in the appeal below has proceeded to dismiss the appeal upon the mere assumption, which even followed from inconsistent reasoning, that the plaintiffs had a prima facie case in their favour and has not adverted to the other two considerations. It has been held in Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 S C M R 519 that injunction has not to be granted upon the mere finding about the existence of a prima facie case and the other considerations relating to irreparable injury and balance of convenience have also to be weighed. Since the sanction of additional water for gardens and fish‑farms is a separate subject within the competence of the Superintending Engineer and i, governed by the Rules framed for the purpose which contemplate such supply to be made out of the reserve water retained at every outlet, therefore, it is not possible to assume that the plaintiffs may be entitled to be heard before the passing of such orders. An identical case decided by the Supreme Court reported as Ahmad Hussain and others v. Punjab Province and others 1987 S C M R 769 cited before the Additional. District Judge has been refused by him to be followed on the untenable plea that its facts are distinguishable (which actually are not) and neither has he been able to set out any distinction nor has he given any reason of his own. Even in this case, it is inconceivable as to how may the plaintiffs suffer irreparable loss on account of supply of additional water to the petitioner out of the reserve resources? As such, they do not have a prima facie case to justify the issuance of temporary injunction and even the other two considerations are on the side of the petitioner.

4. A temporary injunction issued in the similar circumstances was recalled in Sub‑Divisional Canal Officer etc. v. Fazal Ahmad etc. 1982 C L C

59. The two Courts below have actually not attended to the, question whether all the three conditions required for issuance of temporary injunction exist in this case, Their orders fall short of the legal requirements and are both arbitrary and fanciful within the rule of law laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139 and re‑affirmed in Kanwal Nain' and 3 others v. Fateh Khan and others P L D 1983 S C

53. They are hence liable to be set aside.

5. In result, this civil revision is accepted and setting aside the orders passed by the two Courts below, application for the purpose filed by the plaintiff‑respondents is rejected. There is, however, no order as to costs. A. A. M‑8/1, Revision accepted.