2017 PLP 170 (CLCN)

MUHAMMAD FARRUKH IRFAN KHAN, J.

This instant Intra Court Appeal is directed against the order dated 12.4.2017 passed by the learned Single Judge-in-Chambers of this Court whereby the appellant's writ petition challenging letter dated 5.11.2014 of respondent No.1, has been disposed of in the following manner: "At the very outset, learned Law Officer submits that the order of 5.5.1997 issued by Respondent No.2 cannot be implemented on account of the fact that there is a ban imposed by the Government of Punjab vide order dated 11.10.2006. Further states that once the ban is removed, the Petitioner may approach the competent authority to enforce the order of 5.5.1997 issued by Respondent No.2.

3. In view of the above statement, the instant petition is disposed of accordingly."

2. Learned counsel for the appellant submits that the impugned order is a non-speaking order and has been passed in a slipshod manner; inasmuch as it is deficient in its content. He further submitted that the learned Single Judge has failed to appreciate that application of the predecessor-in-interest of the appellant for inclusion of his land in Culturable Command Area ("CCA") was allowed by respondent No.2 on 5.5.1997 whereas the ban was imposed by the government on 11.10.2006 i.e. much after the acceptance of application of the appellant as there was no occasion for the learned Single Judge to pass the impugned order on the statement of learned AAG without appreciating the ground realities of the case; that the letter dated 13.12.2010, issued by the Irrigation Department to the Chief Engineer, Irrigation Zone, Faisalabad supported the contention of the appellant in this regard; that the objection of the other landowners having been rejected by Superintending Engineer/respondent No.1 the order dated 5.5.1997 passed by respondent No.2 had attained finality; and that the impugned order of the learned Single Judge failed to adjudicate upon the matter in its true perspective and passed the impugned order in a perfunctory manner which is not sustainable in the eyes of law.

3. Learned AAG has opposed the instant appeal by arguing that order dated 5.5.1997 of Divisional Canal Officer/respondent No.2 could not be implemented due to imposition of ban by the Secretary, Irrigation, Government of the Punjab. He further argued that the impugned order does not suffer from any illegality and the instant appeal being without any merit deserves to be dismissed.

4. Arguments heard. Record perused.

5. The record shows that application of the appellant for inclusion of his land in CCA was allowed by respondent No.2 on 5.5.1997. The said order was challenged in appeal by one Ahsan Ullah one of the land owners whose land was also being irrigated through moga No.5668/L but the same was dismissed. The order of respondent No.2 dated 5.5.1997 was forwarded for approval and confirmation by respondent No.1 but it could not be finalized for a considerable period of time due to inaction on the part of respondent No.1. Later in 2006 ban was imposed under which the respondents are now taking shelter.

6. We have inquired from the respondents as to when the ban was imposed and lifted but learned AAG has not been able to give satisfactory reply. We have also noted that the said ban was imposed by the Chief Engineer, Irrigation, Faisalabad and not by the Secretary, Irrigation, Government of the Punjab. It is also a matter of record that the ban was imposed twice. Be that as it may, it was duty of the respondents to have further processed the application of the appellant and to have either get it rejected or confirmed from the Superintending Engineer. It appears to be a serious anomaly and fulfillment of duty on the part of the Irrigation Department. It appears that such a deficiency existed in the working of the respondents which must have caused inconvenience to public so the legislation had to intervene by amending the law in the year 2006. Section 20(5) of the Canal and Drainage Act, 1873 provides that whereby it was provided that if the confirmation to order of DCO is not given by the Superintending Canal Officer within 90 days then the orders of the DCO shall be deemed to have been confirmed, therefore, as the order in favour of the appellant was pending confirmation since the dismissal of the appeal of the opponents, inaction on the part of the respondents to confirm or reject it further should not come in the way of the appellant and to the detriment of his interest. Moreover, when the law was amended in 2006 the application of the appellant was pending before the relevant authorities and by operation of law after introduction of the amendment supra it would be deemed to have been accepted after 90 days, by operation of law.

7. Learned Single Judge has not minutely examined the facts and circumstances of the case and has dealt with the petition in a cursory manner merely on the statement of the learned AAG. The Full Bench of the Hon'ble Supreme Court in case reported as Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173) has held as under: "To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable in the substance in the petition which is accepted", should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with the painful results, that justice has neither been done nor seem to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached. In this case the learned counsel naturally criticised the High Court's order for its utter barrenness but he was definitely at an advantage in presenting the various aspects of his argument without any hindrance offered by the ineffectiveness of the impugned order."

8. In view of above, the impugned order is set aside and the instant appeal is allowed. The respondents are directed to implement the order dated 5.5.1997 within a period of one month from the date of receipt of this order. MH/Z-16/L Appeal allowed.