1980 PLP 128 (CLC)

"The case was investigated through S. D. O., Lodhran who pre pared the command statement and reported commandable from outlet R. D. 28050/R Patti Minor, as per command statement attached. The area is Milkiati one and is not allotted on any scheme condition as per Fard Taqsim attached. The discharge for' the area in question comes to 0.81 C. S. and the 'same will be made up from the existing discharge available in the channel which remains within 10% as no extra discharge can be available for this area."

8. The respondent, No. 2 declined to record his approval for the reason that there should be no additional commitment of water as the distribution of the river supply amongst the Provinces was sub judice (Annex. H). As it is a short reply, it may be quoted in exrenso; "I enclose herewith the above quoted case as received from the Executive Engineer, Lodhran Division as the area in question is not included in the C.C.A. of Alipur Minor (Sidhnai Canal), it is not justified to provide the area with Canal water from Nlailsi Canal. This would tantamount to additional commit ments of Canal Water which are not desirable at present when the distribution of River supplies amongst the provinces is sub judice." Obviously, the reason given by the Superintending Engineer bears no reliance to any legal provision and is quite extraneous to law.

9. The respondent No. 1 on the receipt of the case asked the respondent No. 2 about the availability of water. The case was again sent to the Executive Engineer, Lodhran Division. He again reported the availability of the water and respondent No. 2 again disapproved the inclusion of the petitioners' land as it did not fall within the C.C.A. in the following manner :

"The area in question is outside the Irrigation boundary of this circle and there appears no justification for including, this area into C.C.A. The Missal as received from the Executive Engineer Lodhran Division vide the letter No. 156-WE/77R dated 31st January, 1979 is enclosed for perusal." (Annex. 'I'). The petitioners challenge the above orders through the present writ petition.

10. It is contended by the learned counsel that the approval having once been granted for the supply of water to the land owned by the petitioners, the respondents had no lawful authority thereafter to refuse to abide by those orders or to review the same. Reference was made to section 16 of the Northern India Canal and Drainage Act, according to which the Superintending Engineer is the final authority for providing water supply to an applicant. Section 20 was also gone into to show that the Superintending Engineer is the final authority. It will be seen that whereas the section 16 pertains to supply of water from a new or an existing water course to be sanctioned by the Superintending Engineer at the cost of the applicant, section 20 pertains to the procedure for sanction when request is made for supply of water from all existing watercourse Reliance was also placed on rule 7 whereby a Divisional Canal Officer may refuse to supply water if loss is likely to occur. Rule 7-A also authorises the Divisional Canal Officer to refuse supply of water if the available supply remains fully utilized.

11. The learned Counsel for the respondent who was assisted by Mr. Muhammad Ashraf Khan, Divisional Canal Officer, stated that as the land owned by the petitioners did not fall in the Culture able Commanded Area (C.C.A.) of the Patti Minor only the Chief Engineer was empowered to grant water supply. No legal provision or other statutory instrument was referred to or produced, though sufficient opportunity was provided for the purpose. The learned counsel then referred to section 57 read with section 3 (3) of the Canal and Drainage Act to show that the Canal authorities have the power to allow or to disallow supply of water. None of the two provisions, however, bear any relationship with the dispute in hand. Section 57 enables the Provincial Government to frame a scheme for drainage work if it appears necessary utter alia for the improvement of any land or the proper cultivation or irrigation thereof section 3 (3) defines `drainage-work'. The learned Counsel then relied on section 5 but that too is not applicable as it pertains to application of river, lake or still water for any existing or projected canal or drainage work.

12. After hearing the learned Counsel for the parties and the Divisional Canal Officer present in Court and the perusal of the record, I have come to the conclusion that according to the reports dated 16th September, 1976 (Annex. `A') of Mr. Tariq Jamil executive engineer Lodhran Division, the letter dated 18th September, 1976, from Ch. Muhammad Tahir, Superintending Engineer, tails Canal Circle to the Chief Engineer, Bahawalpur and other reports made thereafter, the requisite supply of 0.83 cusec of water was available: from Ptti Minor for a new outlet No. 28050/R. Further, these two officers had also approved the additional supply and the commandability of the land through the suggested watercourse.

13. The question then arises as to what is legal effect of the orders or approval of the two officers? According to section 16 of the Canal and Drainage Act, any person desiring to use the water of any canal may apply in writing to the Divisional or the Sub-Divisional Canal Officer requesting him to construct or improve a watercourse at the cost of the applicants. There is nothing like sanction by the .Divisional Canal Officer or the Sub-Divisional Canal Officer in that section. The appli cants have to state the estimated cost or the amount which they are willing to pay and the mode of payment. The assent of such an applica tion is to be given by the Superintending Engineer and thereupon the applicants become liable to pay the cost and the Canal authority is obliged to supply water. This is, however, subject to rules 7 and 7-A.

14. It appears that the Superintending Engineer is to be guided by rules 7 and 7-A in granting his assent to the application for supply of -water. Rules 7 and 7-A read as under :- "

7. Apprehended wastage (section 16) : A supply of water shall not be granted where, in the opinion of the Divisional Canal Officer, loss from wastage is likely to occur. From his decision an appeal may be preferred to the Superintending Engineer. 7-A. A new supply of water shall not ordinarily be granted in respect of lands where the available supply of water in the canal, distributary or watercourse is already fully utilized, The communications referred to above show that not a single officer reported that there was likely to occur any waste or that the available water supply in the canal or the distributory was already fully utilized. Rather, all the reports and recommendations were based on the fact that the land in question will be fully commanded by the outlet No. 28050/11 and that water supply was available from the Chit Dain Branch. In this view of the matter, the requirements and import of section 16 read with rules 7 and 7-A stood fully fulfilled.

15. As the arguments raised on the side of the petitioners meant that no discretion was left with the Divisional Canal Officer or the Superintending Engineer, if they had no objection under rules 7 and 7-A, I repeatedly asked Mr. Ashraf Khan to refer to any other provision of law or other legal instrument providing to the contrary or something different. He felt very strongly though against the proposition advanced by the petitioners yet, could not refer to any legal provision whereby any discretion was left with them, if additional supply was available and there was no likelihood of any wastage. The provisions referred to above thus fully stand out to show that the Canal authorities cannot refuse to supply the available water to an applicant unless it is shown by them that the case fell within the prohibition to rule 7.

16. Reference was also made to section 20 on behalf of the res pondents to say that as the procedure given therein had not been followed, no new supply could be allowed to the petitioners. Section 20 comes into play only if the new supply of water is to be made through an existing watercourse. That is not the case here. Under section 20 a notice has to be given, to the other persons responsible for maintaining that watercourse, to show cause why the said supply should not be given ? The documents placed on record show that the water shall be supplied to the petitioners through a new outlet 28050/11 and not through an existing watercourse. Section 20, therefore, does not apply.

17. It will also be noticed that there were three rounds of recom mendations in this case. The Executive Engineer (D. C. O.) in all the cases recommended the case of the petitioners. The Superintending Engineer in the first round did approve but the Chief Engineer turned down the case. In the last round, the successor Superintending Engineer did not approve of the move. The reasons given by him have already been reproduced in para 8 abade. A bare reading of it would show that it bears no relationship to the contents of rules 7 and 7-A. The second order of the Superintending Engineer is extraneous to law and is thus ineffective and inoperative. This is apart from the fact that the Superintending Engineer in his second order could not ignore the one passed by his predecessor unless he had shown that the same was incorrect or unlawful. In view of the above, the refusal to supply water to- the petitioner through RD/28050-R of Patti Minor, for reasons extraneous to law an dl particularly after the Superintending Engineer allowed the same vide his order dated 18th September, 1976, is declared to be without lawful authority and of no legal effect. As the question involved was not free from difficulty, there will be no order as to costs. M. Y. M. Petition allowed.