2009 PLP 1368 (MLD)

In these proceedings, the petitioner has prayed for following relief:

(a) Declare that the transfer of 217 acres of land of respondent No.4 to the watercourse No.BA/1 AR ,West Branch of Jamrao Canal is illegal, void, mala fide and without any lawful authority as no compliance of mandatory provision of section 91 of Sindh Irrigation Act, 1879 is made. (b) The respondents Nos.1 and 2 and their subordinate be directed to stop the illegal supply of water to respondent No.1, not to deprive the petitioner from his legal share of water and to distribute the water justly as per legal procedure and irrigation laws. (c) The respondent No.3 be directed to take legal action against the respondents Nos. 1 and 2 for their unlawful act and for illegally supporting Qurban Ali Shah. (d) The respondents Nos. 4 and 5 be directed to take legal action against the assailants and armed persons present at the water course. (e) Any other relief, which this Honourable Court deems fit and proper, may be granted to the petitioner. The petitioner has pleaded that he has agricultural lands on watercourse No.BA/I.AR from West Branch Jamrao Canal, Mirpurkhas along with other Khatedars. These lands of the petitioner and of their Khatedars were settled at ramouse water courses including water course No.1-L, 5-L and 6-L of Male Minor. The petitioner and other Khatedars were facing shortage of water since 1991 had moved a joint application to the Secretary Irrigation, who sanctioned the water course direct outlet for cultivation of an area 'admeasuring 863-06 Acres, which included lands of the petitioner as well. It is pleaded that grant of water course direct outlet was conditioned upon the fact that expenditure involved in implementing of such sanction shall be borne by the petitioner and other khatedars. The petitioner claims that the entire amount for construction of the outlet and adjusting the module was jointly paid by them and since 1994 it is functional. The petitioner claims that he and the other khatedars are getting supply of water to their lands from the said outlet till date. It is further pleaded that all of a sudden in 1997 the share list was manipulated and prepared at the instance of Respondent No.4 and when it was objected to it was recalled and thereafter the respondent No.4 filed a Suit bearing No.37/2004 challenging the withdrawal of the said share list. However, the said suit was withdrawn by him when the manipulated share list which was withdrawn, was restored. The Irrigation Department thereafter had transferred the land of the petitioner and private respondents on the water course of the petitioner, which is in use of the petitioner and other khatedars unauthorizedly without their consent in deviation of the procedure provided in the Irrigation Act, which action of the Irrigation Department has been challenged in these proceedings. It is contended by the counsel for the petitioner that after filing of present petition a Suit bearing No.1 of 2005 was filed by the petitioner in the Court of Senior Civil Judge, Tando Allahyar which was withdrawn under the direction of this Court. The petitioner has also modified the prayer clause by making application of amendment. We have perused the prayer clause in the original petition and in the amended petition. We do not find any substantial difference between them except that the prayer clauses in the original petition were not happily worded and in fact the prayers made in the amended petition were almost similar, but are better worded. The petitioner also impleaded respondents Nos.5 to 10 by making an application under Order I, Rule 10, C.P.C. as they were also getting water with the respondent No.4 from the petitioner's water course. Notices were issued but nobody has turned up. Before hearing the matter we had put to notice that we will hear the matter and decided it at Katcha Peshi level to which all counsel had consented. The counsel for the petitioner has contended that in the comments filed by the respondents Nos.1 and 2, it has been stated that provision of section 91 of the Irrigation Act, 1879 has come to an end in view of the fact that Magisterial powers of the Deputy Commissioner have been withdrawn in the recent set up of the reforms introduced in the District Government. We have asked the learned Addl. A.-G. to satisfy this Court as to whether section 91 of the Irrigation Act is applicable. He candidly concedes that the section 91 is still applicable and it has not lost its efficacy as has been pleaded in the comments. The learned counsel for the petitioner states that the comments of the respondents Nos. 1 and 2 are misleading and no suit is pending in regard to the subject proceedings either from the side of the petitioner or from the side of the respondents. This statement has not been controverted either by the learned Addl. A.-G. or by the counsel for respondent No.4. It is however, stated by the Addl. A.-G. that the Government has filed a civil revision against the petitioner which is pending adjudication. The said revision will have no bearing in deciding the present proceedings. The learned counsel for the petitioner in substance has argued that the transfer of lands on water course of the petitioner and other Khatedars was without their consent and was violative of the provisions of sections 22 to 25 and 91 of Irrigation Act which is causing damage to their crops for want of water and is causing losses to the petitioner and other khatedars as on transfer of water course the scarcity of water has increased. He further states that this order of transfer was procured by respondent No.4 on account of his influence being M.N.A. and the Government has overlooked the mandatory procedure laid down under the Irrigation Act, 1879, while extending benefit to the respondents Nos.4 to

10. We have asked the Executive Engineer and learned Addl. AA.-G. to show us from the record that procedure which was adopted by the Government while transferring the lands of the respondents Nos.4 to 10 on the water course owned by the petitioner and other khatedars, but they could not place before us a single document to establish that the transfer of the lands of respondents Nos.4 to 10 on the water course of petitioner and others was made in accordance with Irrigation Act. The learned counsel for the respondent No.4 on the other' hand has argued that the petition is not maintainable as the prayer in the amended petition was different than the prayers in the original petition and this by itself brings the relief sought in the petitioner within the mischief of Order II, Rule 2, C.P.C. We with profound respect do not find any force in the contention of the learned counsel as general principles of C.P.C. apply to writ petition and the amendment in the petition was allowed by this Court, therefore, the arguments are misconceived. Even otherwise the provisions of Order II rule 2, C.P.C. as such do not apply to constitutional petition. On perusal of the prayer clause we can say that in the original petition the prayer clauses were not happily worded and by amendment in prayer clause the defect was cured which in no way change the complexion of the petition. Moreover, this Court in exercise of constitutional jurisdiction is competent even to grant any relief, which has not been prayed for, therefore, the contention of learned counsel is misconceived. We are clear in our mind that the section 91 of the Irrigation Act fully applies to the cases where the water courses are sought to be changed or transferred. It is mandatory provision and cannot be bye-passed by the authority to extend favour to any party. The withdrawal of Magisterial powers of the Deputy Commissioner has no bearing. There is an amendment in law, whereby the word Collector used in statute is to read as D.-G. (Revenue). Moreover, before applying section 91 of the Irrigation Act, the law requires that Irrigation Department shall seek consent of the owners of the water course if they intend to transfer the lands of any person on a water course in terms of sections 22 to 25 of the Irrigation Act and in case of dispute procedure is provided which includes section

91. Therefore, in the present case these mandatory provisions have been overlooked while transferring the water course. No consent from the petitioner and other Khatedars, who are the owners, was sought and this act of, the Irrigation Department was violative of the Irrigation Act. The consent of petitioners and other Khatedars, who own water course, having not been sought coupled with non-compliance of the procedure laid down in the Irrigation Act of not invoking the provisions of section 91, we are of the view that transferring the source of water from the water course of the petitioner, was illegal. Ex facie, this action of the Irrigation Department was unwarranted and is nullity in the eye of law. We accordingly allow this petition and direct the Irrigation authorities to immediately take steps to redress the grievance of the petitioner and other Khatedars in terms of the prayers clauses and restore the water course of the petitioner and other khatedars to its original position as it stood before the transfer of water course of respondents Nos.4 to 10, at their costs, within one moth from today. H.B.T./B-21/K Petition allowed.