P L D 1957 (W (PLP)

AKHLAQUE HUSAIN, J.

The lands of the respondents Nos. 2 to 6 were being irrigated from an outlet No. 2021 4/R. They applied, under section 20 of the Northern India Canal and Drainage Act, 1873 (hereinafter referred to as the Act), to the Divisional Canal Officer for being permitted to irrigate their lands from the 'watercourse 20184/R on Kukkr Hatta minor, for the maintenance of which the petitioners were responsible and from which the latter were irrigating their lands. This application of the respondents was granted by order dated the 3rd of April 1950 and the ' 0th of May 1951. The petitioners along with twenty other persons filed a civil suit challenging these orders on the ground that they had been passed without notice to them. The suit was decreed and both the appeals against it remained unsuccessful. Thereafter the Divisional Canal Officer passed an order upon the original application of the respondents Nos. 2 to 6 after issuing notice to the parties concerned. This order appears to have been modified by the Superintending Engineer, Haveli Canals Circle, Multan, in exercise of his powers under section 20 of the Act. The order of the Superintending Engineer is contained in his letter No. 16323/123W dated the 29th of December 1955, addressed to the Executive Engineer, Multan Canal Division. It is alleged by the petitioner, and not denied by the respondents, that at the suggestion of the Deputy Chief Engineer, the Superintending Engineer, respondent No. 1, has decided to re-open the matter and decide it afresh. The petitioners contend that the order of the Superintending Engineer contained in the aforementioned letter of the 29th of December 1955, is final and cannot be modified or set aside. They, therefore, pray that a writ of prohibition may be issued to the Superintending Engineer respondent No. 1, restraining him from reopening "the case concluded by the order dated 29th December 1955." None of the respondents has filed either a written statement or an affidavit. Learned counsel, who appears on behalf of the first respondent, contended that no finality attaches to the order passed by the Superintending Engineer on the 29th of December 1955. W e find no substance in this contention in view of the express statutory provision contained in the second paragraph of section 20 of the Act which runs as follows :- "When such Officer (the Divisional Canal Officer) determines that a supply of canal-water may be conveyed through any watercourse as aforesaid, his decision, shall, when confirmed or modified by the Superintending Canal Officer, be binding on the applicant and also on the persons responsible for the maintenance of the said watercourse." It will be noticed that the order of the Divisional Canal Officer by itself has no legal effect. It must be submitted to the Superintending Canal Officer, (who in this case is tile Superintending Engineer) for confirmation or modification. In fact it is the order of the Superintending Engineer which becomes binding. It was argued on behalf of the first respondent that an order of a Superintending Engineer setting aside an order of the Divisional Canal Officer granting the application, being neither one of confirmation nor of modification, is not binding. It was, however, rightly conceded that the Superintending Engineer does possess, under the section, the power to refuse to confirm the order of the Divisional Canal Officer. Such an order, being one contemplated by the section itself, must be held to be binding within the meaning of the section by necessary implication-in spite of the fact that the section does not expressly say so. The order of the Superintending Engineer must also be considered to be final in view of rule 81 of the Northern India Canal and Drainage Rules framed under, section 55 of the Act. This rule runs :- "No appeal shall lie from any decision or order given or made under any provision of the Act, except where any appeal is expressly allowed by the Act or by the rules made there under and for the time being in force." As admittedly the order passed by a Superintending Engineer refusing to confirm the order of the Divisional Canal Officer is an order under the second paragraph of section 20 and no appeal against it is expressly allowed either by the Act or by the Rules, it is necessarily final. It was next urged that although the order is binding on the applicant and the persons responsible for the maintenance of the watercourse, it is not binding upon the canal authorities. A short answer to this argument is that the canal authorities do not make the application under section 20 of the Act and the section does not authorise them to institute or start proceedings under it suo moto. The occasion, therefore, for the defiance of such an order by the Canal authorities, for the purpose of section 20, cannot arise. The party relying upon the order can hold the other party to it, in spite of the hostility of the Canal authorities. Learned counsel for the first respondent has placed on the file a letter Elated the 25th of, October 1956 from the Deputy Chief Engineer, Irrigation, Multan, Region, to the Chief Engineer, Irrigation Department, West Pakistan, Lahore. We might point out that it is admitted in the letter that "the decision of the Superintending Canal Officer, if dealt with properly, under para 2, section 20 of the Act, then the decision of the Superintending Canal Officer in such cases is final and the case cannot be re‑opened under any directive." The contention raised in that letter, however, against the order in question of the Superintending Engineer was that it had been passed without due notice to the parties. Neither of the parties concerned have alleged before us that they were not notified. There was no question of any notice to respondents Nos. 2 to 6, whose learned counsel admitted before us that they were heard before the order was passed. The petitioners also do not complain nor do they appear to have complained to any canal authority that they did not receive notice. For the foregoing reasons we accept the petition and, holding that the order dated the 29th of December 1955 passed by the Superintending Engineer, Haveli Canal Circle, Multan, is final direct the respondents not to re‑open it, or act in con travention thereof. A. H. Petition accepted.