2014 PLP 1753 (MLD)

LAL JAN KHATTAK, J.

This revision petition under section 115 C.P.C. is directed against the judgment and decree dated 8-12-2010 of the learned Additional District Judge/Izafi Zilla Qazi, Mastuj at Booni, Chitral, whereby appeal preferred by the petitioners, against the judgment/order dated 29-3-2010 of the learned Civil Judge/Maga Qazi,, Mastuj at Booni, has been dismissed.

2. Brief facts of the case are that the petitioners had filed a suit for declaration etc to the effect that they are entitled to irrigate their lands from the water flowing in stream `Meter Tang' and the respondents. have no right to deny their such entitlement. It was the petitioners' case, as set forth in their plaint,' that in the year of 1930 the then Governor of Mastuj had given a chunk of arid land to their forefathers who, by dint of their blood and sweat, constructed a canal known as `Qayum Baig Canal' from nala Mehr Tang' and started irrigating their lands form it which rights have now been jeopardized by the respondents. Respondents contested the suit by filing their written statement. On the case issues, parties to the suit recorded their respective evidence, whereafter, the learned trial Court on 29-3-2010 returned the plaint to the petitioners by holding that the Court has no jurisdiction to proceed with the case in view of barring provisions contained in the Canal and Drainage Act, 1873. The judgment of learned trial Court was impugned in appeal but the learned appellate Court concurred with the trial Court and dismissed the appeal on 08.12.1010, hence the instant revision petition.

3. Arguments heard and record gone through.

4. Perusal of the case record would reveal that both the Courts below have taken into consideration section 68 of the Canal and Drainage Act, 1873 to ouster their jurisdiction over the issue brought before them and it was held that resolution of the dispute lies with the Canal authorities established under the ibid Act. The conclusion drawn by the learned two Courts below is not legal keeping in view the attending circumstances of the instant case. No doubt, differences as to mutual rights and liabilities of persons interested in the use of water from canals and outlets are ordinarily settled by the canal authorities under section 68 of the Canal and Drainage Act, 1873 and there is no cavil to it but this legal provision is not applicable then from the distribution of water in the District of Chitral subject to few exceptions.

5. In the terrain of Chitral, people by using their blood and sweat uplift the beds of natural streams from Miles away in order to irrigate their arid lands. They on their own expenses not only de-silt the streams but remove all sort of hurdles including the removal of avalanche and sliding from the outlets. In doing so, the labourious farmers get nothing from the Government and everything is done by them on self help basis. Therefore, applying ouster clause of the Act ibid to each and every case brought before a civil Court for the redresal of a grievance relating to the irrigation rights of landowners or farmers would not be an objective interpretation of section 68 of the Canal and Drainage Act, 1873.

6. Even section 68 of the Act ibid is not literally applicable to the facts and circumstances of the instant case. The provisions of the Act ibid are applicable only to those cases of water disputes where lands are irrigated from main canal constructed, maintained or controlled by the Provincial Government through irrigation department and this is the true import of section 3 of the Act ibid. Where any water channel or any outlet has neither been constructed by the Government nor is being financed, maintained, managed or controlled by the Government through irrigation department but has been constructed, managed and controlled privately then in that case the settlement of differences over irrigation rights cannot be resolved through the hierarchy of irrigation department and the issue is well amendable to the jurisdiction of civil Court.

7. On Court query it was admitted at the bar by the learned counsel for the respondents that the stream, channel or outlet in question, whatever the name thereof may be, has been constructed privately and the irrigation department has no say in the irrigation rights of the parties. When neither the source of irrigation has been controlled, managed or financed by the Government nor the source has been taken out from a main canal being managed or controlled by the irrigation department then refusal of the two Courts below to exercise their jurisdiction over the issue in hand is quite illegal which cannot be countenanced.

8. For the above discussion and reasons, I accept the instant revision petition, set aside both the impugned judgments and decree of the two Courts below and remand the case back to the learned trial Court for its disposal in accordance with law. AG/376/P Revision allowed.