1993 PLP 716 (MLD)

Ss.20 & 68

Wara Bandi

Normally a `Wara-Bandi' arrangement, ordered by Canal Authorities, has to remain in force, unless it was set aside by Civil Court. Ch. Irshad Ullah Chattha for Petitioners. Muhammad Farooq Oureshi Chishti for Respondents Nos-4 and

5. Respondent No.7 in person. Muhammad Ishaq Ziledar for Respondent No.8 in person, and as representative of Respondents Nos.1 to 3 and

6. The petitioners make a prayer to set aside the order, dated 24-9-1992 passed by the learned District Judge, Khushab, Ch. Muhammad Aslam Khokhar; reversing the order, dated 5-11-1990, pronounced by Ch. Nabi Ahmed, Civil Judge, Khushab, in the proceedings of a civil suit filed under section 68, Canal and Drainage Act. The present revision has been preferred by the plaintiffs in the suit, except Muhammad Khan son of Gheba Khan, who has been arrayed as a co-respondent (in the civil revision), alongwith the defendants in the suit (the authorities/officials of the Irrigation Department, together with the Province of Punjab, sued through the Collector, besides two private persons, Muhammad Rafiq Javed and Khalil, defendants-respondents Nos.4 and 5).

2. Main plea of the plaintiffs-petitioners is that they were not served and heard by the Sub-Divisional Officer of the Canal Department, Jauharabad, who ordered amendment in the `wara bandi' on 5-11-1990, and thus the cardinal principle of natural justice, audi alterem partem, was infringed. On a perusal of the file with the Ziledar concerned, this Court has however, satisfied itself, in a tentative manner, that service upon the plaintiffs in terms of rule 79 of the Rules framed under the Canal and Drainage Act was effected, inasmuch as Munshi Qadir Bakhsh, Manager of petitioners Nos.1 and 2 had been served. Petitioners Nos. 3 and 4 were served through their tenants. Petitioners Nos.5 and 6 did not figure in the previous arrangement of `wars bandi', but their co sharers, Janda, Falaksher, etc. was intimated. Petitioner No.9 Charagh was personally served. Petitioners Nos.6 to 8 appeared in person before the officer, dealing with the matter. Service through a recognised agent is to be treated as sufficient, and it seems that the departmental functionaries had made sure that all concerned were informed about the change proposed to be made in the apportionment of irrigation water. It will, of course, be open to the plaintiffs petitioners to establish in the course of trial that they had actually no information about the exercise in question and thus their view-point had remained un-represented and their interests unguarded.

3. It is additionally urged that in actual practice Muhammad Rafiq and Khalil, respondents Nos.4 & 5, had some dispute inter se and they had approached the canal people, with a view to resolve the same, and others in fact wanted no change, but the SDCO embarked upon reviewing the entire existing arrangement of `wara bandi' and altered it drastically to the detriment of irrigation interests of the plaintiffs. Appeal before the DCO was also preferred by two persons, Muhammad Hussain, petitioner No.7, and Muhammad Khan, respondent No.7. Others having unnecessarily been involved and unilaterally been proceeded against were also adversely affected and had no alternative but to approach the Civil Court for rescission of the `wara bandi' order, dated 5-11-1990.made by the SDCO.

4. Learned Civil Judge is of the view that the plaintiffs had raised material questions of law and facts and thus had an arguable case, balance of convenience was on their side and they were exposed to irretrievable injury, in the event of enforcement of the impugned `wara-bandi' order, and refusal of injunction order, as prayed for. He therefore conceded to them the relief of ad interim injunction that they had sought from the Civil Court.

5. The learned District Judge arrived at a conclusion to the contrary, while considering the question of propriety of issuance of an injunction pendente-lite in appeal, and vacated the stay order, and this has caused grouse to the plaintiffs-petitioners, who are adamant that their interests would seriously be prejudiced, if the 'wara bandi' order is allowed to be put into effect. The learned District Judge has taken special note of the fact that against the SDCO's order, the aggrieved persons, even if they all were not the plaintiffs-petitioners, had gone in appeal to the DCO, who was dealing with the matter, when a civil action was brought by the plaintiffs, and a stay order was obtained, with the result that the DCO could not proceed further. Otherwise, he would have given his verdict long before. The learned District Judge thus is not incorrect in observing that the aggrieved persons, even ifnot all of them, were pursuing their remedy in two different forums, and for invoking the jurisdiction of the Civil Court under section 68 of the Act, the condition precedent was that the 'wara bandi' order must have attained finality. SDCO's order, unless it is approved of by the DCO, would not finally be operative, and it cannot with certainty be said that the DCO would concur with the SDCO. In this view of the matter, the civil suit, filed to challenge the SDCO's order, may be treated as premature. Contention of the learned counsel for the petitioners that pendency of an appeal before the DCO would not operate as a bar against institution of the civil suit cannot be endorsed. The petitioners should have shown the patience to wait for the result of the appeal pending before the DCO. It was expected of him (DCO) that sitting in higher forum he would have scrutinized the matter elaborately in a bid to find out if his subordinate, the SDCO, had passed the order in conformity with and not in conflict with the statutory provisions, the departmental rules and practice, not oblivious of rights and interests of the share-holders in the outlet in question, at the same time. If he had come across any irregularity, having been committed by the SDCO, he would not have hesitated to correct it, or to strike down the order 'wara bandi', as a whole, maintaining the existing arrangement. Grant of an injunction order is certainly a discretionary relief, but in passing such an order, a Court of law is not expected to go by its whims. Familiarly-known and generally-accepted principles, governing exercise of such discretion, have to be abided by, for if it is not done, miscarriage of justice is occasioned. On having weighed and considered all attendant facts and circumstances of the case, this Court is of the view that the learned District Judge has adopted more rational, judicious, equitable and just view, while considering the plaintiffs-petitioners' entitlement to the relief of ad interim injunction. Normally a 'wara bandi' arrangement, ordered by the Canal Authorities, has to remain in force, unless it is set aside by the Civil Court. This is saner view and more accurate. approach, and I would uphold the impugned order passed on 24-9-1992 by the learned District Judge. IC The revision petition is dismissed, in consequences, with no order as to costs. Records of the Courts below shall be sent back without delay. H.B.T./M-821/L Petition dismissed.