2008 PLP 106 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioners own land which is irrigated from Outlet No. 20500 TF. According to learned counsel for the petitioners, respondents Nos. 5 to 9, who are owners of land, were getting their irrigation water from other outlets bearing Nos.20500-TF and TR. These respondents moved an application before the Divisional Canal Officer (respondent No.2) for transferring their land onto outlet No.20500-TF. This application has been allowed by the Divisional Canal Officer vide order, dated 2-10-2004. The Superintending Canal Officer (respondent No.3) has confirmed the aforesaid order on 12-12-2005.

2. The petitioners filed a suit to challenge the aforesaid orders and along with their suit, filed an application under Order XXXIX, Rules 1 and 2, C.P.C. praying for interim relief against the implementation of the aforesaid orders. It was, inter alia, pleaded by the petitioners that they had not received any notice as required under section 20 of the Canal and Drainage Act, either before the passing of the order, dated 2-10-2004 or the confirmation thereof by the Superintending Canal Officer on 12-12-2005.

3. The application of the petitioners was dismissed by the learned trial Court on 27-1-2006 which dismissal has been upheld by the learned Appellate Court vide order, dated 7-3-2006. Learned counsel for the petitioners states that the Canal Department did not put in any reply or produce on record any document to prove that the petitioner had been served. Learned counsel has refused to a notice, dated 21-5-2005, which has purportedly been issued by the Sub-Divisional Canal Officer (respondent No.4) showing that service had been effected on the petitioners. Learned counsel for the petitioners pointed out that three of the persons, mentioned in the said notice, had died prior to the issuance of the said notice, while a fourth namely, Akram is not even an owner in the land irrigated through Outlet No. 20500-TF. On this basis, it is argued that the impugned orders were based entirely on fictitious service reports and, therefore, the petitioners were entitled to the interim relief sought by them. Learned counsel for the petitioners further contends that the learned Courts below have observed that the petitioners were served, but there is no basis for such finding on the record.

4. After examining the record and also hearing learned counsel for the private respondents and the learned Law Officers, who had the benefit of the original record, it has become apparent that the petitioners were not served before the passing of the order, dated 2-10-2004 by the Divisional Canal Officer. Nor is there any record to show that the petitioners were served or heard by the Superintending Canal Officer when he passed the confirmatory order, dated 12-12-2005.

5. In the above circumstances, the application filed by the petitioners-plaintiffs under Order XXXIX, Rules l and 2, C.P.C. is allowed and the orders of the learned Courts below, dated 27-1-2006 and 7-3-2006 are set aside.

6. The plaintiffs and the private respondents shall appear before the Divisional Canal Officer on 6-6-2006. On that date or any adjourned date fixed by the Divisional Canal Officer, the said officer shall pass a fresh order after taking into account the submissions made by the petitioners-plaintiffs, the private respondents and interested persons.

7. Learned counsel for the petitioners-plaintiffs also agrees that in view of the above order, the suit itself has borne fruit and may be disposed of by the learned trial Court. The trial Court shall deal with the matter accordingly.

8. The petition, therefore, succeeds in the above terms. Civil revision allowed/Stay application granted. H.B.T./P-23/L Revision allowed.