2003 PLP 1231 (MLD)

Approbation and reprobation

Permissibility

Approbation and reprobation in the proceedings is neither permissible nor could be sanctified. A.R Khan v P.N Boga through Legal Heirs PLD 1987 SC 107 fol. Malik Muhammad Akram Khan Awan for Petitioners. Jawad Malik, A.A.-G. for Respondents Nos. 1 to

4. Ch. Rashid Ahmad for the Complainant. Nemo for the Remaining Respondents. Date of hearing: 10th April, 2003. On an application filed by the petitioners, the Divisional Canal Officer, Jhang passed order dated 2-7-1997 granting the application for the bifurcation of Khan Chand Distributory which, however, was subject to the confirmation by the Superintending Canal Officer. Whereafter the Superintending Engineer, Lower Chanab Canal West Circle, Faisalabad recommended the bifurcation of 'Khan Chand' distributory vide his communication dated 24-9-1997 addressed to the Chief Engineer Irrigation Faisalabad Zone. On 11-2-1998, the Chief Engineer Irrigation Faisalabad approved the proposal with the condition that "the Drawing of proposed Head Regulator should be approved by the competent authority before execution of the work at site. All over the expenditure will be borne by the shareholders of the proposed distributory." The matter then came back to the Superintending Engineer for further proceedings. At the same time, the order of the Divisional Canal Officer had been agitated before the Superintending Canal Officer, who vide order dated 6-8-1998 rejected the appeal/objections and proposal made by the Divisional Canal Officer was confirmed by him. It was, however, vide order dated 20-8-1998, that the Chief Engineer Irrigation Faisalabad, proceeded to withdraw his sanction dated 11-2-1998 and also observed that "proceedings in respect of above case conducted by Ex-Superintending Engineer Canal Officer (Ch. Muhammad Aslam Cheema) stand cancelled forthwith and should not be implemented at site. It is this order which has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The learned counsel contends that the Chief Engineer acted illegally and without lawful authority in the matter inasmuch as he had no jurisdiction either to recall the earlier sanction or to set aside the order passed by Superintending Engineer. It is further contended that such a unilateral withdrawal of sanction without notice or hearing the petitioner was contrary to the law and principles of natural justice. The learned Law Officer and learned counsel for the respondents have also been heard.

3. Through the parawise comments submitted by the statutory functionaries an attempt has been made to justify the order passed by the Chief Engineer. The perusal of the impugned order, however, makes it abundantly clear that before the withdrawal of the approval dated 11-2-1998 vide Canal Wire dated 20-8-1998 none of the parties was issued any notice or heard in the matter. The order per se offends and is violative of the principles of natural justice and is not sustainable for that reason alone. The necessary consequence would be to direct the Chief Engineer to dispose of the matter afresh after hearing all concerned.

4. The learned counsel for the petitioner, however, contended that the Chief Engineer had no power and jurisdiction under the law. It is, however, not possible to countenance the contention of the learned counsel in the peculiar facts and circumstances of this case inasmuch as the very tenor of the petition and documents on the record would itself show that it was the Chief Engineer on whose intervention and approval the Superintending Engineer had passed the order dated 6-8-1998. Suffice it to observe that the order passed by Superintending Canal Officer itself makes reference to the approval accorded by the Chief Engineer on 11-2-1998. The petitioners cannot for taking benefit ensuing from an order of the authority concede to him the necessary power and to assail his power and jurisdiction when the order goes against them. Such a plea would suffer from an inherent inconsistency. Approbation and reprobation in the proceedings is neither permissible nor can be sanctified. Reference in this context may be made to A.R. Khan v. P.N. Boga through legal heirs (PLD 1987 SC 107).

5. In view of the above while declaring order dated 20-8-1998 (Canal Wire) of the Chief Engineer Irrigation, Faisalabad, being violative of the principles of natural justice is set aside, it is directed that he will dispose of the matter afresh in accordance with law after affording opportunity of hearing to all concerned before whom the parties will be entitled to raise all such pleas permissible under the law. In view of the request for expeditious disposal of the matter, made by the parties, it is directed that the Chief Engineer will dispose of the matter within three months. The petition is disposed in the above terms. No order as to costs. S-643/L Petition disposed of.