2005 PLP 1135 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.‑‑‑

This petition for leave to appeal is directed against order, dated 11‑12‑2001 passed by the Lahore High Court, Lahore in Civil Revision No.2563 of 2001.

2. The petitioners and the respondents Nos.4 and 5 were the land, owners in Square No.78 of Chak No.26/D, Tehsil Depalpur, District Okara which was irrigated through minor canal outlet No.30180/T. R according to the Warabandi sanctioned by the canal authorities in the year 1992. Subsequently, the respondents Nos.4 and 5 approached the respondent No.3 who after hearing the petitioners and others and holding enquiry passed an order dated 25‑7‑1995 thereby sanctioning a new internal watercourse for the use and distribution of the canal water. The petitioners preferred an appeal which was dismissed by respondent No.2 by order dated 13‑1‑1996. Thereafter, the petitioners instituted a civil suit for declaration and permanent injunction against the orders passes by the canal authorities. The civil suit of the petitioners was dismissed by the Senior Civil Judge, Okara by judgment, dated 20‑9‑2001 and their appeal was also dismissed by the Additional District Judge, Okara by judgment, dated 13‑11‑2001. The Civil Revision No.2563 of 2001 before the High Court also failed vide impugned judgment, dated 12‑11‑2001. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners submitted that Warabandi sanctioned by the canal authorities in 1992 had attained finality. Thereafter, any change or modification therein could be made only by a decree of the Civil Court and not by the canal authorities in view of subsection (6) of section 68 of the Canal and Drainage Act, 1873 (hereinafter referred to as the Act).

4. We have heard the learned counsel for the petitioners at length. We find that the petitioners did not raise any objection before the Civil Court and the Appellate Court at any stage of the proceedings that the canal authorities were powerless to pass the orders which were challenged before the Civil Court. The civil suit and the appeal were decided on merits on the basis of the evidence led by the parties in the light of the issues framed by the trial Court. The orders dated 25‑7‑1995 and 13‑1‑1996 were passed on merits by the canal authorities after hearing the petitioners and others. The petitioners have not brought the said orders on record of this Court. In the facts and circumstances of the case the High Court was justified in refusing the petitioners to allow a new ground to be raised for the first time at the revisional stage. However, reference may be made to the case of Bashir Ahmad v. Muhammad Khan through Legal Heirs and 4 others 1995 SCMR 891 where while interpreting the provisions of section 68 of the Act, the following observations were made:‑‑ "The preparation of Warabandi and distribution of canal water and the fixation of turn of water of each irrigator is the exclusive responsibility of the canal authorities who are supposed to be well‑versed in the technical subject and perform their duties in accordance with the situation prevailing at the spot. At the preparation of new Warabandi or amendment in the existing Warabandi which have long been acted upon, the earlier Warabandis are also taken into consideration." In another case of Muhammad Sultan v. Lab Din 1976 SCMR 260 it was held that except for the period of crop sown or growing, the Divisional Canal Officer could reopen and modify earlier arrangements as many times as difference arose subject to fulfillment of conditions laid down in section 68 of the Act.

5. The learned counsel failed to point out any miscarriage of justice as having been caused in this case either by the canal authorities or by the Courts. The impugned judgment of the High Court does not suffer from any legal infirmity so as to warrant interference by this Court. This is not a fit case for grant of leave to appeal. For the foregoing reasons, we do not find any merit in this petition and the same is dismissed accordingly. S.A.K./K‑84/S Leave refused.