P L D (Rev (PLP)

NASIR AHMAD, F. C. 'The petitioner Mian Jind Wadda etc., seem to have approached the Collector D. G. Khan that the irrigation of lands of the parties situated in Basti Pariah Ali and Raqba Aqil Muhammad from the common hill torrent Wah Mian Sahib should be carried out on the system of Serova piana both in respect of abe ziah (i.e., perennial supply) and lorra pani (i.e., rain water supply). The application was rejected and the petitioners were directed to follow the system of wara bandi which it peas stated had been in force for a very long time. Their appeal to the Commissioner was also rejected. In this revision petition it is urged that the procedure followed by the Collector is not in accordance with the provisions of the Minor Canals Act. The dispute relates to the mutual rights of owners in the use of the waters of a canal and should, therefore, have been decided as a Revenue Court under the provisions of the Tenancy Act as laid down in section 43 (a) of the Minor Canals Act. The contention of the other side is, that the dispute relates to a water‑course and not a canal and as such falls under section 43 (2) (b) of the Act. The word canal has been defined under section 3 (ii) of the Act as follows :‑ "Canal means any canal, natural or artificial channel or line of natural drainage or any reservoir, dam or embank ment constructed, maintained or controlled for the supply or storage of water or the protection of land from, flood or sand, and includes any water‑course or subsidiary works as defined in this section". The significant words are that canal includes a water‑course though water‑course is defined later on and differently in sub section (xii). The distinction is not very clear but in ordinary parlance a watercourse may be taken to mean the smaller channels, which take off from a canal and actually supply water for irrigation to the various fields. These smaller channels are maintained by the irrigators themselves. In this particular case it is the rights from the canal Wah Mian Sahib which are in dispute and the dispute does not relate to the smaller water‑course. The Collector should, therefore have dealt with the case as a Revenue Court under the provisions of the Tenancy Act and not as an application. only. The parties themselves have agreed that this case along with the other connected Case No. 98 of 1953‑54 may be remanded to the Collector for a fresh decision on the merits. I would accordingly accept this petition and direct that the Collector should proceed with the matter as held by me above and come to a fresh decision on merits. The parties should be informed. A. H. Petition accepted.