2001MLD316 (PLP)

Date of hearing: 20th September, 2000. SALEEM DIL KHAN, J.‑‑‑Zakirullah and three others have filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 for a declaration to the effect that, the orders and judgments of Assistant Commissioner/Collector Revenue, Charsadda, respondent No.5, dated 5‑8‑1998 and his order in review application, dated 14‑5‑1999, and, that the order and judgment in appeal of Additional Commissioner, Peshawar Division, Peshawar, respondent No.6, dated 5‑6‑1999 are without lawful authority and of no legal consequence.

2. The facts relevant to the instant petition are that the petitioners and respondents Nos. l to 4 are co‑owners of agricultural landed property in village Sheikh Killi, Tehsil and District Charsadda. A dispute arose between the parties over the use of quantity of water by each side and respondents Nos.1 to 4 approached the Assistant Commissioner, respondent No.5, through a proper application, dated 1‑11‑1997 for 'Warabandi', that is, proper and just distribution of water. The requisite proceedings in accordance with law were taken up. Both the rival parties alongwith other co‑owners were heard and an order of amended Warabandi' was issued by Assistant Commissioner through order, dated 5‑8‑1998 whereby Suleman Shah and others, respondents, were given the right of irrigation for agricultural land measuring 142 Kanals, 9 Marlas. The petitioners were aggrieved of this order and they filed a review petition in the Court of Assistant Commissioner but the same was dismissed on 19‑8‑1998. The record indicates that Zakirullah and others, petitioners herein, did not go further and kept silent after 19‑8‑1998. However, on 17‑4‑1999; that is, after 8 months, 25 days of the rejection of review application on 19‑8‑1998, they moved yet another review application in the Court of Assistant Commissioner. For reasons best known to the then Assistant Commissioner, this second review petition was entertained and was allowed on .14‑5‑1999. Resultantly, upon the review of the first order of ' Warabandi' dated 5‑8‑1998, the irrigation rights of Suleman Shah and others, respondents herein, were reduced from 142 Kanals 9‑1/2 Marlas to 125 Kanals, 17 Marlas. Both the parties felt aggrieved of this order and went ahead.

3. It is evident from the record that both the parties, that is, Zakirullah and others, petitioners herein, and Suleman Shah and others, respondents herein, called in question the validity of the order, dated 14‑5‑1999.

4. There is no ambiguity on record regarding the proper hearing of the appeals filed by both the rival sides in the Court of Additional Commissioner, Peshawar Division, Peshawar, respondent No.6. It is also abundantly evident from the record that both the parties were afforded opportunity of being heard. The Additional Commissioner then passed a speaking order, dated 5‑6‑1999 wherein he has held that both the appeals are accepted and the impugned order, dated 14‑5‑1999 is set aside and the original order, dated 5‑8‑1998 is restored. There was some ambiguity with regard to the order that both the appeals are accepted but the position was clarified before us that, in fact, the Additional Commissioner used this phraseology for the reasons that Zakirullah and others, petitioners herein, and Suleman Shah and others, respondents herein, both parties had filed appeals and in their respective appeals Zakirullah and others had prayed for setting aside the impugned order, dated 14‑5‑1999 for the reasons that it had only reduced the area of the respondents whereas they wanted to get complete elimination of the landed property of Suleman Shah and others from ' Warabandi' . Similarly, Suleman Shah and others were also aggrieved because their irrigation rights were reduced from 142 Kanals, 9‑1/2 Marlas to 125 Kanals, 17 Marlas. Therefore, the Additional Commissioner held that both the appeals were accepted and the order, dated 14‑5‑1999 was completely set aside.

5. Keeping in mind the aforesaid background of the case we carefully heard the arguments propounded by the learned counsel for the rival parties. We also undertook the exercise of examining the record in detail with the valuable assistance of the learned counsel for the parties.

6. Learned counsel for the petitioners mainly contended that the impugned orders passed by Assistant Commissioner/Collector Revenue, respondent No.5, and order passed by Additional Commissioner, Peshawar Division, Peshawar, respondent No.6, are without lawful authority and, thus, of no legal consequence in that the jurisdiction in the matter in hand is vested in the authorities of the Irrigation Department as per the Canal and Drainage Act, 1873 and, therefore, both respondents Nos.5 and 6 are corum non judice. It was further contended that the report of Abdullah Jan Girdawar is incorrect and the Assistant Commissioner had erred in law by acting on this report; that the Collector was bound in duty to further verify the contents of the commission report, dated 5‑5‑1999 from Civil Canal Department; that the appeal of the petitioners was argued by a junior counsel as the senior counsel had gone to Attock in connection with a criminal case before Additional Sessions Judge, Attock and that the petitioners were thus, not given proper opportunity to defend their case.

7. Learned counsel for the respondents contested all these arguments and stated that the instant case falls under Minor Canal Act, 1905 because the irrigation channel in question is an ordinary small channel and, therefore, falls under the definition of Minor Canal Act, 1905. He further contended that the report of Girdawar is correct and in accordance with law and that no illegality has been committed muchless to declare the orders as without lawful authority.

8. On correct reading of record it transpires that the main contention which was strenuously argued before us vis‑a‑vis the jurisdiction of the Revenue Authorities is without foundation. It is advantageous to state the legal position in this behalf. There are two Statutes in the field namely Canal and Drainage Act 1873 and the Punjab Minor Canals Act, 1905. The latter was made applicable to this Province through Notification dated 1st July, 1926 as per amendment inserted through subsection (2) in section 1 of the said Act. A perusal of the Punjab Minor Canals Act, 1905, as applicable to North‑West Frontier Province, indicates that section 2 of the Act prescribes that the provisions of this Act shall apply to the extent and in the manner hereinafter provided to every canal specified in either Schedule I or II as the case may be. It was pointed out to the learned counsel for the respondents that the present case falls in the domain of Minor Canals Act because the canal in question is included in the Schedule I of the Act and not because it is a minor channel of water. Learned counsel for the respondents candidly conceded this position in law. It would not be out of the place to state that whenever a canal finds place in Schedule I and Scheduled II of the Minor Canals Act then any matter pertaining to such canal shall be determined under the Minor Canals Act. In this behalf section 43 of the Act is more than elaborate for determining the authority for resolving dispute as, the Collector. Similarly, section 43(2)(b) vividly prescribes Commissioner of the Division as the Appellate Authority. Therefore, both the respondents Nos.5 and 6 were the proper and correct Authorities for adjudication upon the matter. We also find it necessary to explain that .any canal which is not included in Schedules I and II of the Minor Canal Act, shall be governed by the General law, that is, the Canal and, Drainage Act, 1873. Therefore, the contention vis‑a‑vis the jurisdiction of respondents Nos.5 and G is dispelled.

9. We have given our anxious mind to the record and have examined the report of Abdullah Jan, Girdawar which has also been appended with the petition as Annexure 'E'. It is an exhaustive report which engulfs the entire landed property of the rival parties and their respective irrigation rights. Neither the learned counsel for the petitioners could lay hand on any material defect in the said report nor we could detect any such infirmity. Therefore, the said report, in the capacity of Commissioner, enjoys the sanction of law.

10. The next contention with regard to consultation with and verification by the Civil Canal Department is also misconceived. On detail examination of the record it transpires that civil canal authorities were duly consulted and the matter was also verified through them. It is important to note that certain documents in this behalf have been appended with the petition as Annexure 'B' page 14, report page 15, document Annexure 'C' and documents on page 17 of the petition. In view of these documents present on record, this argument also does not hold water.

11. So far as the grievance regarding the absence of senior counsel is concerned, we are unable to understand as to how this can be made a ground for interference by this Court while exercising its Constitutional jurisdiction. The record is clearer than crystal that the petitioners were properly represented by the counsel and that he argued the case at length before the e Additional Commissioner and he was neither hampered or handicapped in properly defending the petitioners.

12. In view of the aforesaid observations we do not find any justification for interference in exercise of the extraordinary jurisdiction of this Court. Resultantly, this petition is dismissed with costs alongwith C.M. No. 1665 of 1999. H.B.T./191/P?????????????????????????????????????????????????????????????? Petition dismissed.