2003 PLP 1445 (YLR)

‑‑‑‑S.20‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Passing order without issuing notice to petitioner or hearing him‑‑‑Contention of respondent was that question, whether any notice had been issued to petitioner or not being a question of fact could be dealt with by Civil Court‑‑ Validity ‑‑‑Petitioner's assertion stood proved from official record and stance taken by respondent‑‑‑Petitioner had not been issued any notice and he had been condemned unheard by Department‑‑‑Forcing petitioner to file suit before Civil Court, would be a futile exercise in view of such facts and circumstances‑‑‑Impugned order being contrary to law and principles of natural justice, was not sustainable‑‑‑High Court remitted matter to Divisional Canal Officer for deciding same afresh in accordance with law. Jalal Khan v. Zulfiqar Ali and others NLR 1985 UC 330; Muhammad Afzal and others v. Ch. Abdul Rehman Wahla and others 1994 CLC 921 and Qaim Khan and 17 others v: Superintending Canal Officer, Depalpur Canal Circle and 2 others 1982 CLC 804 ref. Jawwad Hassan for Petitioner. Muhammad Hanif Khatana for Respondents Nos. 1 to

4. Ch. Taj Muhammad for Respondent No.5. Date of hearing: 28th January, 2003: Order dated 8‑8‑2001 passed by the Divisional Canal Officer/respondent No.3, whereby the application of respondent No.5 was accepted, which order was confirmed by respondent No.2 on 22‑3‑2002, has been assailed through this petition by the petitioner who has the grievance that orders prejudicial to his rights and interests have been passed without any intimation, notice or hearing him.

2. It is contended by the learned counsel that prerequisites of section 20 of the Canal and Drainage Act, 1873 have not been met by respondents Nos.2 and 3 in passing the impugned order; rather their actions run contrary to the law laid down by the superior Courts. Reference has been made to Jala1 Khan v. Zulfiqar Ali and others (NLR 1985 UC 330); Muhammad Afzal and others v. Ch. Abdul Rehman Wahla and others (1994 CLC 921 and Qaim Khan and 17 others v. Superintending Canal Officer, Depalpur Canal Circle and 2 others (1982 CLC 804) that such an order is liable to be struck down and interfered with by this Court in writ jurisdiction. The learned counsel for respondent No.5 however, raised an objection as to the maintainability of this petition in view of the remedy available under the Canal and Drainage‑Act, 18.73: The learned counsel further contended that the question whether any notice was issued or not to the petitioner is a question of fact which can appropriately be dealt with by the Civil Court. The learned Additional Advocate‑General who is accompanied by the Sub‑Divisional Officer concerned, has also been heard.

3. There can be no cavil in view of the A established law that if there is violation of any mandatory requirement of law as to the notice and hearing or violation of the principles of natural justice, this Court can appropriately invoke its jurisdiction and undo the violation of law and remedy the wrong. The assertion of the petitioner that no notice was given or hearing provided to him before passing of the impugned order stands fortified by the official record and the stance of the Department. There, thus, remains no doubt whatsoever that the petitioner was not issued any notice and was condemned unheard by respondents Nos.2 arid 3 in the matter. To relegate the petitioner to the filing of suit before the Civil Court, will be a futile exercise in the facts and circumstances of the case. The order being contrary to law and the principles of natural justice is, therefore, not sustainable, it is declared so. There is however, a consensus that the matter be remitted to respondent No.3 for proceedings ‑ in the application filed by respondent No.5 afresh in accordance with law. Let the parties cause their appearance before him on 1‑3‑2003 as agreed by the learned counsel No order as to costs. S.A.K./A‑725/L Petition accepted.