1991 PLP 243 (MLD)

This revision petition under section 115 of the. C.P.C. by the defendant, Col.Fakhar Hussain Shah, has arisen in the following circumstances.

2. Major Feroze Khan, Major Muhammad Khalid and Subedar Malik Muhammad Ali, respondents herein, (to be called the plaintiffs) and the defendant, Col.Fakhar Hussain Shah, petitioner herein, are allottees of land from the Federal Government under the Horse Breeding Scheme which land is irrigated from Moga No.12089/L/1.L/1.R. Differences having arisen with regard to the distribution of water between the parties, Subedar Malik Muhammad Ali, plaintiff, made an application under section 68 of the Canal and Drainage Act, 1873 (hereinafter to be referred to as the Act). The Sub-Divisional Canal Officer, by his order dated 4-10-1984, sanctioned nakkas at two points viz. killas Nos.13/19 and 19/20. Aggrieved by the order of the Sub-Divisional Canal Officer dated 4-10-1984, the petitioner preferred an appeal before the Divisional Canal Officer on 23-1-1985. Before the Divisional Canal Officer, the petitioner's ease was that the warabandi had been sanctioned behind his back and had adversely affected his rights and that the matter should be sent back to the Sub-Divisional Canal Officer for fresh decision. The Divisional Canal Officer acceded to that request and sent the case to .the Sub-Divisional Canal Officer for fresh inquiry. The Sub-Divisional Canal Officer made the necessary inquiry and sent the file to the Divisional Canal Officer. The inquiry report of the Sub-Divisional Canal Officer has not been, placed on the record and it is not known whether he had stuck to, his earlier order dated 4-10-1984 or had recommended a modification thereof. What is known is that on receipt of his report, the Divisional Canal Officer heard the parties and modified the order dated 4-10-1984, in this way that for the nakka at killa No.13/19, he sanctioned a nakka at killa No.13/22 and for the nakka at killa No:19/20, he sanctioned a nakka at killa No.19/11.

3. Aggrieved by the order of the Divisional Canal Officer dated 7-1-1986, the plaintiffs instituted this suit to have it declared that the order of the Divisional Canal Officer was against law and facts.

4. The defendants, including the Divisional Canal Officer, the Sub -Divisional Canal Officer and the petitioner, contested the suit by filing their written statements. They denied that the order of the Divisional Canal Officer in any way prejudicially affected the plaintiffs' rights. The parties went to trial on the following issues. (1) Whether the plaintiffs have not come in the Court with clean hands? O.P.D. (2) Whether the plaintiffs have got no cause of action? O.P.D. (3) Whether the order of D.C.O. dated 7-1-1986 is against law and facts? O.P.D. (4) Relief. The learned Civil Judge decreed the suit by his judgment dated 16-7-1988. He found that the petitioner had been duly served in the proceedings before the Sub-Divisional Canal Officer; that the ground level of killa No.13/22 was lower as compared to killa No.13/19. For this later finding, the learned Civil Judge relied upon the testimony of Muhammad Sharif (P.W.1) and Muhammad Yaqub Patwari (P.W:2). He referred to the Divisional Canal Officer's order dated 7-1-1986 and observed that the Divisional Canal Officer had not bothered "to refer any technical report regarding the-ground level of the Nakkas he chose to sanction by his order in appeal. It was incumbent upon D.C.O. to seek an investigation on this controversy of fact". In. this connection, the learned Civil Judge relied upon the instructions for the guidance of the Canal Authorities on the modification of warabandi and concluded that "the impugned order dated 7-1-1986 is passed by the D.C.O. on a time-barred appeal, proper enquiry is not made by the D.C.O. before. passing the. impugned order" and that it was violative of the rules and instructions governing warabandi.

5. The learned Additional District Judge endorsed these findings. He too held that the appeal before the Divisional Canal Officer was out of time and the Divisional Canal Officer had not condoned the delay. He was also of the view that the petitioner had been properly served in the proceedings before the Sub- Divisional Canal Officer through his brother Syed Jewan Shah. The learned Additional District Judge also affirmed the finding of fact that the plaintiffs" have successfully proved about ground level of their land at a higher level as compared with the ground level with the newly sanctioned Nakas".

6. In short, the grounds which influenced the learned Courts below in reaching the conclusion that they did were:(i) that the petitioner's appeal before the Divisional Canal Officer was time-barred and (ii) that the nakkas sanctioned by the. Divisional Canal Officer in killas Nos.13/22 and 19/11 were situate at a lower level than the plaintiffs' land and, therefore, the plaintiffs' land could not be irrigated from these nakkas.

7. As regards the first point, the petitioner had a period of 15 days within which he could challenge the order of the Sub-Divisional Canal Officer dated 4-10-1984 before the Divisional Canal Officer. It is, however, well-settled and in this connection reference may profitably be made to Allah Dino v. Fakir Muhammad PLD 1969 SC 582 that the time does not run against a person who had no notice of the proceedings and that as regards him, the time runs from the date of his knowledge. Here, the learned Courts below very properly referred to the provisions of Rule 79-D of the rules framed under the Act. That rule requires that every summons, notice or order shall "whenever possible, be served, delivered or communicated: (a) personally on or to the person to whom it is addressed, or failing him, (b) on or to his recognized agent, or failing such agent; (c) on an adult male member of his family usually residing with him.

8. In this case, the finding returned by the learned Courts below was that the petitioner was served through his brother Syed Jewan Shah and that the latter had entered appearance before the Sub-Divisional Canal Officer. There was, however, no evidence that it was not possible for the petitioner to be personally served. In any case, Syed Jewan Shah was not shown to be the recognised agent of the petitioner or an adult male member of his family. Thus, the act of Syed Jewan Shah in accepting service and entering appearance on his behalf was a gratuitous act and was not binding upon the petitioner. It follows, therefore, that the petitioner had not been served in due course of law and as there is no evidence that he had knowledge of the order dated 4-10-1984, his appeal before the Divisional-Canal Officer must be treated to have been presented timeously.

9. Regarding the finding of fact of the learned Courts below that the points viz. killas Nos.13/22 and 19/11, at which points the Divisional Canal Officer sanctioned the nakkas, were, at- a lower level than the plaintiffs' land, learned counsel for the petitioner raised a two-fold contention. The first is that the Divisional Canal Officer had the jurisdiction to decide- the question rightly as well as wrongly and the learned Courts below were, therefore, not competent to interfere with his order and the second is that the learned Courts below wrongly relied upon the evidence of Muhammad Sharif (P.W.1) and Muhammad Yaqub Patwari (P.W.2).

10. Section 68 of the Canal and Drainage Act, 1873, provides for the settlement of differences as to mutual rights and liabilities of persons interested in the use of water from a canal outlet by the Divisional Canal Officer and provides an appeal against the order of the Sub-Divisional Canal Officer to the Divisional Canal Officer. The order made by the Sub-Divisional Canal Officer and if there is an appeal, the order made by the Divisional Canal Officer, to quote from subsection (4) of section 68, "shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made, and remain in force until it is set aside by a decree of a Civil Court". The order under section 68, therefore, belongs to that class of cases in which the statute provides that orders made thereunder shall be final and remain in force until set aside by a decree of Civil Court. Learned Counsel referred to Munshi v. Ali Muhammad 1980 C L C 234 for his contention that if the canal authorities have acted within their jurisdiction, there is no power in the Civil Court to interfere with their orders.

11. Learned counsel was fair enough to refer to Badar Din v. Bahadur Ali and others PLD 1968 Lahore 573 also where it was held that "the Civil Court has the jurisdiction to set aside the order of the. Canal Officer, if it is wrong, illegal or ultra vices". '

12. It appears to me to be obvious that the reason why the legislature thought it proper to leave the final determination of the rights and liabilities as to the use of water to the Civil Courts is that those rights and liabilities are rights and liabilities of civil nature. If the intention were to vest the canal authorities with power to decide rightly as well as wrongly, then their orders would not have been made liable to be set aside by the civil Courts. Secondly, the legislature itself has not stated the grounds of attack upon which an order of the canal authorities may be challenged in Civil Court, the implication being that no limitation; as regards the nature of the grounds, was intended. In other words, the absence of, any words of limitation in section 68 is more in consonance with the view that the power of the Civil Court to set aside an order under section 68 is not limited to any particular ground, factual or legal. If that be the legislative intent, it is not open to the Courts, by the process of interpretation, to introduce any ground into the section. In my opinion therefore, an order of the canal authorities made under section 68 is challengeable not only on the ground of jurisdiction but on other factual and legal grounds as well. It must, however, be added that as in the case of any other official act, in determining the correctness or legality of an order of the canal authorities, it is helpful to bear in mind that there is a presumption that official acts have been regularly performed, i.e. with due regard to the relevant formalities and within the relevant powers. A conclusion of excess and irregularity is therefore not to be lightly reached. Province of East Pakistan v. Muhammad Abu Miah PLD 1959 SC (Pak) 276 and that the canal authorities are experts in their own field and have the advantage of spot inspection and their decisions should not ordinarily be interfered with except on the ground of ultra. vires, illegality, material Irregularity or that the order is manifestly unjust.

13. As to the finding of fact, namely, that the sanctioned nakkas at points 13/22 and 19/11 are situate at a lower level than the plaintiffs' land, it appears that the findings of the learned Courts below are vitiated by misreading of the evidence of Muhammad Sharif (P.W.1). and Muhammad Yaqub Patwari (P.W.2). Muhammad Sharif Ahlmad was summoned to produce the record of the case. He referred to a plan and stated that the point 13/22 was situate at a lower level and the point 13/19 was situate at a higher level. He was not a field officer and had not had the advantage of spot inspection. Muhammad Yaqub Patwari P.W. also made a similar statement as to the level of the points; he did not have the relevant record before him. He admitted that it was not one of his duties to determine the level of land. He said that his knowledge of the level of land was based on record , but what that record was, the Court was not taken into confidence.

14. It is obvious, therefore, that the learned Courts below were wrong in relying entirely upon these witnesses.

15. Now the Sub-Divisional Canal Officer's inquiry report, made by him on the direction of the Divisional Canal Officer, has not been placed on the record. Admittedly, the Divisional Canal Officer did not have the advantage of spot inspection. It is plain that the question being whether the points 13/22 and 19/11 are situate at a lower level than the plaintiffs' land, spot inspection was necessary. As the record does not show that the Sub-Divisional Canal Officer or the Divisional Canal Officer had inspected the spot, the fair course to adopt, in my view, will be to send the case back to the Divisional Canal Officer for fresh decision after inspecting the spot in the presence of the parties and after affording an opportunity of hearing to them.

16. For these reasons, I would accept the revision petition, set aside the judgments and decrees of the Courts below and direct the Divisional Canal' Officer to decide the matter afresh after affording a hearing to all the parties concerned 'and after inspecting the spot. The parties are left to bear their own costs. A.A./F-228/L Case remanded.