1986 PLP 745 (CLC)

‑‑‑S. 16‑‑Provisional Constitution Order (1 of 1981), Art. 9‑Constitutional jurisdiction‑‑Permission of some land owners from whose land, watercourse would pass having not obtained, permission of construction of new watercourse by Canal Officer, held, was without lawful authority and of no legal consequence‑‑Order construction of new watercourse set aside by High Court in Constitutional jurisdiction being in violation of legal requirements. Muhammad Ismail H. Memon for Petitioners. S. Sarfraz Ahmed, Asstt. A.‑G., Sind for Respondents. Date of hearing: 14th October, 1985. NAIMUDDIN, J.‑‑This Constitutional petition under Article 9 of the Provisional Constitution Order, 1982, calls in question the Order No. 5/151‑3‑259/81/3‑IB/13884, dated 17‑11‑1981, whereby the Chief Engineer, Irrigation, Sukkur Zone, Sukkur, respondent 1 allowed under section 16 of the Sind Irrigation Act, 1879, construction of a new watercourse Ex‑Meel Minor for irrigation of the lands of Ali Ahmed, respondent, 2 measuring 177 Acres. The order was passed on submission of a joint statement purporting to be by 16 Khatedars namely, (1) Rajo Khan son of Muhammad Khan, (2) Mst. Hakimzadi Shahli, (3) Rasool Bux son of Nigh Ali, (4) Anwar Ali son of Haji Ahmed Khan, (5) Yamin son of Mir Khan, (6) Abdul Rehman son of Abdul Qadir, Minor, (7) Ashraf Ali son of Haji Ali Murad, Minor, (8) Abdul Qadir son of Haji Ali Murad, (9) Liaqat son of Haji Ahmed Khan, (10) Jan Badshah son of Dhani Parto, (11) Haji Ahmed Khan Dhani Bux and (12) Sanghar son of Muhammad Ali.

2. The facts as stated in this Constitutional petition are that the petitioners, some other Khatedars and respondent 2 hold their agricultural lands in Deh Koraiki and Deh Meel, Taluka Tando Allahyar, District Hyderabad. They are settled on Watercourse No. 1‑R Ex‑Meel Minor and watercourse tail ex‑Kohi Minor for the purposes of irrigation. Some time back respondent 2 applied to respondent 1 through the Executive Engineer, Hala, and Superintending Engineer, Rohri Canal Circle, Hyderabad, for permission to construct a new watercourse Ex‑Meel Minor for irrigation of his lands measuring 171 Acres, which was granted by the order impugned in this Constitutional petition. He also stated that the owners of the lands bearing B.Nos. 257/1,2; 258/1‑2‑4, 264/1,4; 299/1,4; 326/1, 4; 321/1,4; 328/1,4; 341/1,4; 348/1,4; 361/1,4; of Deh Koraiki and Nos. 141/1,4; 142/1,4; 183/1,4; 184/1,1; 160/3,4; 159/3,4; and 158/4 of Deh Meel, Taluka Tando Allahyar though which the proposed watercourse would pass, had no objection to its construction.

3. The respondents have not filed any counter‑affidavit nor has respondent 2 cared to appear though served. Therefore, the facts as stated in the petition including the fact that the proposed watercourse for irrigation of the lands of respondent 2 has to pass through the lands of petitioners Nos. 1 to 10, remain unrebutted. Similarly the claim that the joint statement was signed on behalf of petitioner 1, by his father showing him as minor though in fact he is a major also remains unrebutted.

4. We have heard Mr. Muhammad Ismail H. Memon learned counsel for the petitioners and Mr. S. Sarfraz Ahmed, learned Assistant Advocate‑General, Sind, for the respondents.

5. It is submitted by Mr. Muhammad Ismail H. Memon that the permission sought have been granted only under section 16 of the Irrigation Act, 1879, with the consent of Khatedars through whose lands the proposed watercourse is to be constructed. But in this case as stated in paragraph 8 of the petition the lands of petitioners 4 to 19 would also be effected by the proposed watercourse and their consent has not been obtained. It is also submitted that the joint statement on the basis of which the new watercourse has been sanctioned by respondent 1 was signed on behalf of Anwar Ali, petitioner 1, by his father showing him to be a minor though in fact he is a major as stated in paragraph 6 of the petition. It is also pointed out as stated in paragraph 7 of the petition that petitioner 3 namely, Abdul Rehman, is a minor and permission on his behalf was given by Haji Ali Murad, who had no authority as it could be given only by his father Abdul Kadir, who is petitioner 2, therefore, it is contended that the watercourse has been sanctioned without the consent of petitioners Nos. 1, 3 and 4 to 10, whose lands would be effected.

6. Under section 16 of the Sind Irrigation Act, 1879, a Canal Officer who is duly empowered could grant the permission to any person to construct a new watercourse, if he has obtained the consent of the E holders of lands required therefor. We may here quote the provisions of said section which read as follows:

16. At any time after the day so named, any Canal Officer duly empowered in this behalf may enter on any land, remove any obstruction, close any channel and do any other thing necessary for such application or use of the said water, and for such purpose may take with him, or deputy or employ, such subordinates and other persons as he deems fit."

7. Since the allegations made in the petition have gone unrebutted and it is not denied that the lands of petitioners Nos. 1, 3 and 4 to 10, would be effected and since their consent was not obtained, therefore, respondents 1 and 3 could not have sanctioned the new watercourse on the application of respondent

2. We, therefore, declare that the sanction for construction of new watercourse by the order impugned in this petition is without lawful authority and of no legal effect. Since respondent 2 has not filed any counter‑affidavit in defendence of the petition we leave the petitioners to bear their own costs. A . A . Petition granted.