1994 PLP 1178 (CLC)

Mian Muhammad Jamal for Petitioners. Ch. Muhammad Abdul Razzaq Kamboh for Respondents Nos. 2 and

3. Date of hearing: 25th September, 1993. The parties are related inter se and are locked in litigation with each other with regard to agricultural lands. The petitioners filed an application under section 68 of the Canal and Drainage Act before SDCO that due to partition of the lands between the parties, a: dispute had arisen between the shareholders and the petitioners were unable to smoothly irrigate their land so a fresh Warabandi be sanctioned. During the pendency of the application, respondents, Nos.2 and 3 allegedly dismantled the watercourse, leading to the lands of the petitioners in second week of October, 1993, located in Khasra Nos. 42, 4/5, 7/6, 14/15, 17/16, 24/25, 57, 4/5 and 7/6. Feeling aggrieved, the petitioners moved an application under section 68‑A of the Canal and Drainage Act to the DCO on 10‑2‑1993 who forwarded the same to the subordinate officials for report. In the meantime due to the intervention of the (sic) and source of irrigation was restored. With a view to protect their rights the petitioners filed a suit for permanent injunction in which initially temporary injunction was granted but later on the stay application was dismissed by the learned trial Court. The petitioners filed an appeal which was entrusted to the learned Additional District Judge, Khanewal. During the pendency of the appeal the private respondents again dismantled the watercourse on 26‑5‑1993 forcing the petitioners to move another application under section 68‑A of the Canal and Drainage Act for restoration of the Khal. Again the matter was enquired into by the DCO through Ziledar who paid a visit to the spot and reported that Khal in dispute had indeed been dismantled forcibly by the private respondents. In view of demolition of Khal, the petitioners withdrew their suit as well as the appeal. . The respondent No.2 then filed a suit on 29‑6‑1993 for permanent injunction so as to restrain the petitioners from restoring the dismantled watercourse. An application for interim relief was also moved on which the learned trial Court restrained the petitioners from illegally interfering in ,the possession of respondent No.2. It was, however, clarified that the said injunction order would not affect the proceedings, order or execution of any order issued by the Canal Authorities. The Canal Authorities took up the matter of restoration of demolished Khal and DCO on 2‑8‑1993 directed the SDCO to "restore" the Khal. According to the petitioner, this Khal would pass through Khasra Nos. 30, 24/25, 4/1, 4/5, 6/7, 14/15, 14/17, 13/18, 19, 22, 51, 1, 10 and 11, 58/11.

2. The petitioners , have, through this writ .petition, assailed the validity/legality of the order of respondent No.l dated 2‑8‑1993. It is contended that the power of the Canal Authorities under section 68 A of the Canal and Drainage Act, during the pendency of proceedings under section 68 are confined/limited to the restoration of the demolished Khal only. It is argued that in the instant case it having been verified by the Divisional Canal Officer through Ziledar that the. watercourse which was demolished ran through Khasra Nos. 42, 4/5, 7/6, 14/15, 17/16, 24/25, 57, 4/5 and 7/6, the restoration of watercourse could take place only through the route originally earmarked for the watercourse in these Khasra numbers. Fresh route could neither be chalked out nor ordered to be adopted for restoration of supply of water to the lands of the petitioners. 'On the contrary, it is submitted by the learned counsel for the respondents that the petitioners were not justified to insist for restoration of water supply through Khasra numbers mentioned by them in that no watercourse did function through this route prior to the institution of application under section 68 of the Canal and Drainage Act. In any case, it is submitted that the petitioners should not grudge the restoration of water supply through different set of Khasra numbers for the reason that it was an interim arrangement which was to come to an end with the decision of the main application under section 68 of the Canal and Drainage Act.

3. In my view, the writ petition merits acceptance. The Divisional Canal Officer, in terms of section 68‑A is competent only to order the restoration of dismantled Khal during the pendency of the petition under section 68 of the Act in case he feels satisfied that indeed such a demolition has taken place. A different route can neither be chalked out nor resorted to in the purported exercise of such a power so as to connect the lands of the aggrieved party with irrigation facilities. In the instant case the Sub‑Divisional Canal Officer having reported that the watercourse which was demolished ran through particular Khasra numbers, the same route should have been adopted and reconstruction of the demolished Khal ordered. Whether or not the lands of the petitioners are likely to get sufficient canal water through the alternate route as ordered to be adopted by the Divisional Canal Officer is besides the point. In this view of the matter, the writ petition is accepted and the impugned order dated 2‑8 1993 is declared to be without lawful authority and of no legal effect. A direction in the nature of writ is issued to respondent No.l to restore the demolished Khal which ran through Khasra Nos. 42, 4/5, 7/6, 14/15, 17/16, 24/25, 57, 4/5 and 7/6. With a view to put an end to the litigation between the contesting parties, it is expected that he would decide the main application under section 68 of the Canal and Drainage Act at an early date. No costs. AA./N‑199/L Petition accepted.