1994 PLP 921 (CLC)

This writ petition has been directed against the order dated 1‑6‑1977 passed by the Superintending Canal. Officer, Lower Bari Doab Canal Circle, Sahiwal respondent No.7 whereby he sanctioned supply of canal water for 119.77 acres of garden situated in Chak No.150/10‑R from Outlet No.87208/L.2/10‑R in the area of District Khanewal, in favour of respondents Nos.l to 4.

2. The facts giving rise to this petition are that petitioners and the respondents are share‑holders in the Outlet No.87208/L.2/10‑R. The respondents being owner of the agricultural land to be irrigated from the abovementioned outlet, applied for supply of additional water for garden from the outlet in question which was sanctioned vide order dated 1‑6‑1977 on the direction of the Chief Minister, Punjab. This ex parte order could not be implemented till 15‑2‑1986, when an application was moved by the respondents for the implementation of the same. The petitioners on coming to know about the order in question filed the present petition before this Court.

3. The main ground urged, for setting aside the order impugned in this petition was, that the supply of the additional water to the respondents, adverse to the interest of the shareholders including the petitioners, without issuing notice and hearing them, was illegal. It has been contended that the Canal Authorities further bifurcated the outlet in question at the cost of loss of water to the petitioners.

4. The respondent No.7 in the comments to the writ petition admitted that respondent No.l was earlier allowed water supply for an area of 18.0 acres of garden and subsequently an additional supply of water for another area measuring 119.77 acres of garden was sanctioned under the direction issued on behalf of Chief Minister, Punjab vide letter dated 13‑4‑1977 and letter dated 5‑5‑1977 of the Secretary to the Irrigation and Planning Department, Government of the Punjab, Lahore as a special case in relaxation of rules but it could not be implemented till 1986 for want of competency of the Superintending Canal Officer to sanction water for an area more than 18.0 acres. However, on the direction of the Government of the Punjab, the water supply was released. The replying respondents have admitted that before passing the order in question or release of the water supply in favour of the respondents, no notice was issued to the share‑holders or the petitioners. It was also admitted that after sanction of the water for garden, necessary process for implementation of the order was initiated and outlet was adjusted on 25‑2‑1986. However, he denied the reduction in the water supply or any loss to the petitioners.

5. Pending disposal writ petition, Muhammad Akram and Muhammad Aslam petitioners, as a result of compromise with respondents Nos.8 to 20 successors‑in‑interest of Fazal Dad respondent, withdrew themselves from the contest: Their names were accordingly ordered to be deleted as petitioners.

6. It has been contended on behalf of respondents Nos.8 to 20 successors‑in‑interest of the original owner of the land and respondent No.l in the writ petition that the present arrangement of the water supply was made with the consent of the petitioners and each share‑holder was getting water as per his entitlement. Much stress was laid on the point that orders dated 24‑12 1982 and 25‑5‑1983 of the bifurcation of the outlet, having been not challenged by the petitioners, they were estopped by their conduct to challenge the subsequent order of release of water and also the order dated 1‑6‑1977. It was also urged that civil suit was the proper remedy to raise the dispute of supply and distribution of water.

7. The parties are admittedly shareholders in the outlet and respondents were allowed additional supply of water for garden without notice to the share holders including the petitioners. The sanction of water detrimental to the rights of the co‑sharers whether under a special direction in relaxation of the rules or by way of proper proceedings under the Canal and Drainage Act, 1873 without hearing the interested parties was nullity in law. A notice was necessarily to be given to the persons responsible for the maintenance of watercourse and Canal Authorities without providing an opportunity to the interested persons and conducting an inquiry to determine the conditions for the supply of the water, were not justified to extend extra favour to the respondents. The additional supply of water sanctioned in favour of the respondents through an existing water‑course, effecting the rights of the share holders in the said outlet could not be allowed without following the procedure provided under the law and issuing necessary notice to the concerned people. The contention that the order has attained finality and the interference by this Court at this stage shall cause loss to the respondents carries no weight to be entertained. An order having no legal sanction cannot be provided protection for the convenience of a party deriving benefit under it and is bound to be struck down. The question whether the case falls under section 20 of the Canal and Drainage Act or it is a matter to be covered by section 68 of the said Act is not material to be gone into. The proceedings under either section, shall be nullity in law, if finalized without following the proper procedure and hearing the interested and affected people. The Canal Authorities are not empowered to reduce or add the supply of water adverse to the rights of others and that too without hearing the interested parties.

8. For the foregoing reasons, I accept this writ petition, set aside the order dated 1‑6‑1977 passed by the Superintending Canal Officer, Lower Bari Doab Canal Circle Sahiwal, and remand the case back to him with the direction that without disturbing the existing arrangement of the supply of A water to the concerned parties, the Canal Authorities shall pass a fresh order in the matter after following the procedure. and hearing the parties, determining their rights within a period of six months. AA./M‑1329/L Petition accepted.