2005 PLP 441 (CLC)

2. The petitioner has pleaded in the petition that he is owner of 39 Acres, 15 Ghuntas of the land in Deh Wangi, Taluka Tando Allahyar under the command area of Watercoruse No.5BR, Ex Nasir Branch from which he was not getting water since 1981 and had approached the Irrigation Authorities for transfer of Peach from Watercoruse No.5BR to Watercourse D.O.155 RD Ex Nasir Canal. The concerned Officer allowed the transfer of the petitioner's' Peach subject to however, following codal formalities as provided under the Sind Irrigation Act, 1879.

3. The record reveals that the Khatedars of the Watercourse No. D.O.155 (presently called 2‑R) objected to the transfer of Peach and as a result of which the litigation ensued between the petitioner and the Khatedars of the Watercourse 2‑R. The record further reveals that the matter was remanded by the District Judge to the Collector to decide the dispute between the petitioner and the Khatedars of 2‑R. By an order, dated 17‑4‑2002, the District Officer (Revenue), Hyderabad who was the competent officer, allowed the transfer of the Peach of the petitioner from 5BR to 2‑R against which the rival Khatedars filed a revision under the Irrigation Act and by order, dated 10‑7‑2003 the Revisional Authority has allowed the revision against the petitioner.

4. The petitioner impugned the said order of the Revisional Officer before this Court in Constitutional Petition No.D‑327 of 2003. This Court by its order dated 11‑2‑2004 dismissed the petition of the petitioner holding therein that he was not entitled to seek transfer of Peach from 5BR to D.O. 155 Ex Nasir Branch.

5. The present petition appears to have been filed by the petitioner on the ground that he was not allowed to irrigate his land from the Watercourse No.5BR on account of the influence of the neighbouring Khatedars and the Irrigation Department had failed to discharge their duties by not providing the petitioner his due share of water from 5BR. He, therefore, had prayed that this Court may issue direction to the Official respondents (Irrigation Department) to provide outlet to the land of petitioner from Nasir Canal to supply irrigation water to the land of petitioner or the respondents be directed to provide water from existing Watercourse No.155 RD, which is now called as 2‑R. This Court by its order dated 31‑3‑2004 directed the officers of the respondents after hearing them to ensure that the petitioner gets water according to his due share from Watercourse No.5BR. The order passed on 31‑3‑2004 is reproduced hereunder:‑‑ "Heard the petitioner. Perusal of case record shows that the petitioner has earlier filed C.P. No.D‑327 of 2003 which was disposed of by this Court in terms of the order, dated 11‑2‑2004. Now he has again filed present petition substantially with the same grievance. The petitioner contends that he is not getting any water from Watercourse No.5BR as per his entitlement. The Executive Engineer Nasir Division present in Court states that new water share list of the Khatedars is being prepared and as per entitlement of the petitioner water for his lands will be supplied to him from Watercourse No.5BR. In view of the above statement, the petitioner seems to be satisfied the petition is accordingly disposed of."

6. The petition was disposed of in terms of the aforesaid order.

7. After disposal of the petition the petitioner made a contempt application C.M.A. No.1120 of 2004 in which he has pleaded that the respondents have failed to provide him water in defiance with the orders dated 31‑3‑2004 passed by this Court.

8. Notice of this application was issued, upon which the alleged contemners Executive Engineer and Assistant Engineer, Irrigation Department, appeared and had submitted their reply to the show cause in which they have pleaded that when they reached the site for compliance of the Court's order they were offered resistance by 50 to 60 persons, who did not allow them to comply with the order. In this respect the officials also showed this Court, the F.I.R. which was registered against the persons who interfered with the implementation of the order passed on 31‑3‑2004. Upon hearing this, this Court passed further order on 14‑9‑2004 and the D.P.O., Hyderabad was directed to provide assistance to the Irrigation Officials for compliance of the order and the matter was adjourned. Today, we were informed that petitioner was provided water which fact is confirmed by the petitioner. The Police Officers present in Court have informed its that the Neighbouring Zamindars are creating hindrances for which huge police force was deployed.

9. During the hearing of this matter Mr. Jhamat Jethanand, Advocate, has appeared and filed two applications one under order 1, rule 10 read with section 12(2), C.P.C. and the other under Order XLI, rule 5, C.P.C. on behalf of 9 applicants seeking modification of the order passed on 31‑3‑2004. These applications were listed for orders. We have heard Mr. Ramat and petitioner besides the officials of Irrigation Department who were present in Court. The grievance of Mr. Jhamat, learned counsel for the applicants, is that the petitioner in his petition has not prayed for supply of water from 5BR and has prayed for supply of water from Watercourse D.O.155 (2‑R) and, therefore, this Court has erroneously passed an order directing the respondents to provide water to the petitioner from 5BR. He further submitted that the in compliance with the order of this Court passed on 31‑3‑2004, the Irrigation Department had unlawfully excavated the land of the applicants and allowed the water to flow through their lands for providing the water to the lands of petitioner. We, on query from the Executive Engineer, present in Court, were informed that in view of the final order passed by this Court in Constitutional Petition No.D‑327 of 2003, the petitioner was not entitled for his water share from Watercourse D.O. 155 (2‑R). According to the record of the Irrigation Department, the petitioner s sanction of water is from 5BR since 1981 when the petitioner purchased the land. This Water Course sanction of 5BR of the petitioner was never in dispute nor it has ever been challenged before any forum by ails party, including the applicants.

10. The grievance of the petitioner was the transfer of Peach from Watercourse 5BR to 2‑R and it was ultimately resolved against them by this Court in the C.P. No. D‑327 of 2003. After the order of this Court in C.P. No.D‑327 of 2003, the petitioner, in law, was entitled to avail his water share from his sanctioned Watercourse SBR and the Khatedars of 5BR, in law, could not object to this position as no proceeding, challenging the sanction on Watercourse 5BR was ever filed against the petitioner by any of the Khatedars on Watercourse SBR. Moreover, the Ordinance of the 9 applicants in regard to the alleged excavation of the land by the Irrigation Department to supply water to the petitioner is also misconceived inasmuch as according to the Irrigation Department the petitioner has been provided water through the sanctioned Nali and no one can object to such an excavation which is covered by law.

11. The objection of Mr. Jhamat Jethanand, that relief granted to the petitioner was different than the one prayed for. It is an established law that the Court can mould the relief in favour of the petitioner even if it is not prayed for. Therefore, the petitioner was entitled to the relief granted by this Court in order to meet the ends of justice as the petitioner appears to be was without supply of water. Moreover, all these questions cannot be gone into in the proceedings initiated by the petitioner. The petitioner, in law, was entitled to his due share of water under Watercourse 5BR, which the Irrigation Department shall continue to supply to the petitioner according to his due share and if somebody offers resistance he should be dealt with the assistance of police, in accordance with law. We do not find any merits in the applications made by the applicants which are accordingly dismissed. The contempt application made by the petitioner is also disposed of as officials respondents have complied with the order. We direct the official of the Irrigation Department to ensure that the petitioner gets his due shah, of water from Watercourse 5BR and if anybody offers resistance, D.P.O., Hyderabad shall take action against him in accordance with law and simultaneot4sly provide assistance to the officials of the Irrigation Department.

12. The applicants, who made the applications, if intervene, resisting and or restraining the Irrigation Officials from discharging their duty inclusion of duty to provide water share to the petitioner, would be exposed to contempt proceedings for wilful defiance of the orders of this Court as the applicants have the knowledge of the orders of this Court dated 31‑3‑2004 and 14‑9‑2004. The petitioner can approach this Court in case of the defiance of the orders by anyone besides the D.P.O., Hyderabad shall take appropriate action against those, who are guilty of defiance of law and provide lawful protection to the petitioner as and when he approaches him. M.B.A./M‑164/K Order accordingly.