1988 PLP 1870 (CLC)

This order will dispose of Writ Petition No. 4432 of 1986 and Writ Petition No. 762 of 1987 as these relate to the same dispute.

2. For unauthorised extra discharge from an outlet No. RD‑58223 LT on Khanuana Distributory of Chak No. 79‑G.B. Tehsil and District Faisalabad, a notice was issued by Sub‑Divisional Canal Officer on 20‑1‑1985 for imposition of Tawan. The notice was served upon the shareholders in accordance with Rule 79 of the Canal and Drainage Rules. Muhammad Yahya Khan and others petitioners in the first petition filed an appeal against the Tawan proceedings. The case was taken up by the Divisional Canal Officer, Lower Gugera Division finally on 18‑2‑1986. Muhammad Yahya Khan petitioner also being attorney of his family submitted that he or his family had committed no such offence of damaging the outlet. He further submitted that he had no need as he was getting extra garden supplies for about 41 squares. The Divisional Canal Officer found that other shareholders had produced no defence. He, therefore, exempted Muhammad Yahya Khan and his family from the special charges and levied Tawan upon the remaining shareholders of the outlet at the rate of six times the actual crop rates vide his order, dated 18‑2‑1986. The remaining shareholders Ghulam Rasul etc. petitioners . in the second petition filed an appeal in the Court of Additional Commissioner, ‑Faisalabad who held that it appeared that Muhammad Yahya Khan and others have been exempted wrongly and the entire Tawan has been imposed on the then appellants, accepting their appeal, he directed that the Tawan be imposed on all shareholders in accordance with their holdings. This is vide order, dated 14‑9‑1986. This is challenged by Muhammad Yahya Khan and others through the first writ petition.

2. Learned counsel for the petitioners contended that the petitioners' plea that they were not liable was accepted by the Divisional Canal Officer on 18‑2‑1986 and others were found liable. Against this order, the others had filed an appeal. No appeal had been filed against the order in favour of the petitioners. Therefore, no order could be passed against them.

3. The other petition bearing W.P. No. 762 of 1987 has been filed by the other shareholders whose appeal has been accepted by the Divisional Canal Officer vide order, dated 18‑2‑1986 whereby imposition of Tawan has been levied on them in accordance with their holdings. Learned counsel for the petition has contended that the petitioner had not committed any offence and they were not liable for imposition of Tawan.

4. Since nobody had represented the respondent authority the learned Advocate‑General was requested to appeared. In pursuance thereof, the learned Additional Advocate‑General has appeared. He has gone through the two orders passed by D.C.O., dated 18‑2‑1986 and the order passed on appeal of Ghulam Rasool etc. petitioners in the second petition by the Additional Commissioner, Faisalabad on 14‑9‑1986. The latter order has been passed against Muhammad Yahya Khan and others (petitioners in the first petition) without them being impleaded as a party and without affording an opportunity to these petitioners. The order is patently without jurisdiction and illegal. As far as Muhammad Yahya Khan and other petitioners in the first petitions are concerned, the proper thing is that the appeal of Ghulam Rasool etc. the petitioners in W.P. No. 762 of 1987 is‑ reheard after, notice to all the persons concerned likely to be affected by the appellate order. In this view of the matter, the impugned order of the Additional Commissioner, dated 14‑9‑1986 is declared to be without lawful authority and of no legal effect. The matter is remitted to the learned Commis sioner, Faisalabad for rehearing the appeal of Ghulam Rasool, etc. in accordance with law. The petitions are accordingly allowed with no order as to costs. H.B.T./M‑611/L Case remanded.