2007 PLP 1317 (YLR)

IQBAL HAMED UR REHMAN, J.

Brief facts giving rise to this writ petition are that the petitioner is owner of 43 Kanals of Agricultural land in Chak No.380/W.B. Tehsil Dunyapur District Lodhran and the said land falls within the Chakbandi of Outlet No.132682 of Rajbah Tail Distributory. Unfortunately due to length of watercourse and other factors the said land was not being properly irrigated through the abovementioned outlet, therefore, the petitioner filed an application under section 20 of the Canal and Drainage Act to respondent No.2 Divisional Canal Officer, Western Bar Division Thingi, District Vehari, who initiated proceedings and after protracted and detailed inquiry, he passed order dated 22-3-2003 in favour of the petitioner by accepting his application. He also forwarded his decision for confirmation to respondent No.1 Superintending Canal Officer, Nili Bar Circle, Sahiwal, who outrightly rejected to confirm the recommendations of the Divisional Canal Officer, Western Bar Division, Thingi, District Vehari/ respondent No.2 vide order dated 28-9-2004. Against the said order, the petitioner has filed this writ petition.

2. It is contended by learned counsel for the petitioner that respondent No.1 has no power to outrightly reject the recommendations of respondent No.2 and as such the rejection order passed in excess of his powers is illegal.

3. Comments were called and the same have been submitted by respondents Nos. I and 2, wherein it was stated the order of the Divisional Canal Officer was subject to confirmation by the Superintending Canal Officer which was denied as the decision of the Divisional Canal Officer was not sound on technical ground and, therefore, no illegality has been committed by respondent No.1.

4. I have heard learned counsel for the petitioner and perused the comments.

5. Admittedly, the application of the petitioner was accepted by the Divisional Canal Officer, Western Bar Division, Thingi, District Vehari/respondent No.2 who after holding a detailed inquiry into the grievance of the petitioner, had recommended the shifting of the area of the petitioner from Outlet No.132682/L tail disty to Outlet No.133780/L tail disty. The same was to be confirmed or modified by the Superintending Canal Officer, Nili Bar Circle, Sahiwal/respondent No.1. But neither he confirmed nor modified the recommendations of the Divisional Canal Officer/respondent No.2 but the Superintending Canal Officer outrightly rejected to confirm the recommendations of the Divisional Canal Officer without giving any reason. According to section 20 of the Canal and Drainage Act, 1873, the A Superintending Canal Officer has the power to confirm or modify the decision of the Divisional Canal Officer. The Act does not provide any authority upon the Superintending Canal Officer to outrightly reject the decision of the Divisional Canal Officer in the matters of water-course. He could only make alternations or changes in the said order. The Superintending Canal Officer, Nili Bar Circle, Sahiwal/ respondent No.1 has outrightly rejected the decision of the Divisional Canal Officer/ respondent No.2 and as such he has passed an illegal order by exceeding his power. Moreover, no share-holders of the said land had filed objections before the Superintending Canal Officer/respondent No.1 so as to warrant the rejection of the decision of the Divisional Canal Officer/ respondent No.2.

6. In view of the above circumstances, this writ petition is accepted and the impugned order dated 28-9-2004 passed by the Superintending Canal Officer/ respondent No.1 is set aside. Respondent No.1 Superintending Canal Officer, Nili Bar Circle, Sahiwal, is directed to pass a speaking order after hearing the petitioner and in accordance with law. H.B.T./G-10/L Petition accepted.