1996 SCMR 536 (PLP)

SAAD SAOOD JAN, J.

Abdul Razzaq and Mushtaq, respondents Nos.l and 2, owned land in Theh Sheikhan of Tehsil Kasur. They irrigated the land by canal water. They filed a Constitutional petition in the High Court alleging that they were .drawing water from a Khal which had been in existence for more then 20 years and that the said Khal was the only source of irrigation for their land; however, the appellant had without any lawful 'rights or power' dismantled the same; as a consequence their lands had become arid. They applied to the Canal Authorities for the restoration of the Khal under section 68-A, Canals and Drainage Act, and despite favourable reports by the local officers their application was not being processed. They sought a direction from the High Court that the Canal Authorities should be directed to decide their application within a short period so that their standing crops should not be adversely affected.

2. In the report submitted by the Canal Authorities in pursuance of a. direction given by the High Court, the official position was that there was already in existence a Khal from which the land of respondents Nos. l and 2 was being irrigated; despite that Khal the respondents wanted a new Khal which passed through the lands of the appellant; for the sanctioning of the new Khal proceedings under section 68-A, did not lie and that the proper course for respondents Nos. l and 2 was to move an application under sections 20 and 21 of the Canal and Drainage Act. ,

3. The learned Single Judge who was seized of the Constitutional petition did not examine whether the application of respondents Nos. 1 and 2 to the Canal Authorities under section 68-A, ibid, was competent or not; instead, he made the following order: "The Divisional Canal Officer states that he is ready to hear the petitioner Abdul Razzaq with a view to remove his grievance according to law: He further says that the petitioner himself did not avail of the irrigation facility available to him. However, the petitioner states that no water has been given to him to irrigate his lands. The settlement arrived at by the petitioner with the respondents Canal Authorities the Divisional Canal- Officer may hear the parties and shall resolve their difficulties over their the distribution of water amicably. Petitioner is satisfied. The Divisional Canal Officer also, undertakes to resolve the controversy between the parties within 7 days without fail. The parties have been directed to appear before the D.C.O., for settlement of their dispute on 23-4-1991. While these observations, this petition stands disposed of in terms of the compromise. " Subsequently, respondents Nos. l and 2 moved a miscellaneous application before the Court for taking action under the law of contempt against the Canal Authorities as they were not prepared to comply with the above order of the High Court. On this application, the High Court made the following operative order: "The Divisional Forest Officer is directed to comply with the order of the High Court on or before 11-6-1991. under intimation to this Court. In case of non-compliance of the said order the D.C.O. shall appear before this Court on 12-6-1991 to face the contempt proceedings." In response to the above direction the Divisional Canal Officer submitted the report wherein he reiterated his stand that respondents Nos.l and 2 did not want to draw water from the existing source and that they wanted a new source to be opened for them; this could not be done except in pursuance of proceedings under sections 20 to 23, Canal and Drainage Act.

4. Without resolving the legal difficulty expressed by the Canal Authorities the High Court directed:-- "Mr. Muhammad Asgar, Divisional Canal Officer is present. He states that he would provide water to the petitioner from a better source (A-B Khal). Learned counsel for the petitioner is satisfied with the statement having been made by the Divisional Canal Officer. In the circumstances, water shall be supplied to the petitioner by the Divisional Canal Officer within next 10 days as agreed. This petition is accordingly disposed of." From the order of the High Court the appellant has come in appeal by special leave to this Court.

5. It is difficult to support the order of the High Court. The disputes with regard to the supply or apportionment of water are to be decided by the Canal Authorities under the provisions of the Canal and Drainage Act; the High Court cannot give a direction which would enable or force the Canal Authorities to bypass or violate the provisions of that Act. We would accordingly set aside the order impugned in this appeal.

6. However, there is a direction by the High Court in the main writ petition that the dispute between the parties should be resolved amicably. The Canal Authorities should comply with that direction but strictly in accordance with the provisions of the Canal and Drainage Act. With these observations this appeal is accepted but with no order as to costs. A.A./B-263/S Appeal accepted