P L D 1975 Supreme Court 359 (PLP)

SALAHUDDIN AHMED, J.‑This appeal, by special leave, is from an order of the then High Court of West Pakistan, Peshawar Seat, dismissing the appellant's writ petition. In the writ petition the appellant had challenged the validity of the order of the Commissioner, Peshawar Division, as contained in his letter dated the 14th of May 1959, whereby the electric connection given to the appellant by the Electricity Department for his irrigation pump installed on Nullah Gulbara, Tehsil Mardan, was directed to be disconnected. Appellant Gul Shad Khan, son of Captain Khawaja Mohammad Khan, owns lands in the area known as Gulbara. Gulbara Nullah bears Khasra No. 1053, and is fed by spring. The Nullah is owned by several persons including the appellant who has th share in it, and it lies adjacent to his barani lands. Respondent No. 3 Mohammad Afzal Khan is another co‑sharer of this Nullah to the extent of J share, and he had installed two electric pumps of 5 Horse Power each on the Nullah for the purpose of irrigation. Electric connection had been granted to the appellant by the Executive Engineer, Electricity, Mardan, by the latter's letter dated the 11th of Decem ber 1958. By another letter dated the 19th of May 1959, the said Executive Engineer informed the appellant that the latter's electric connection had been disconnected in compliance with the orders of the Commissioner, Peshawar Division. The appellant applied to the Commissioner for review of his order, but was unsuccessful. He, therefore, approached the High Court on a writ petition, and it was dismissed on the 7th of November 1966. In the written statements filed by the Commissioner. Peshawar Division, and the Government of West Pakistan, it was stated that Gulbara Nullah being owned by more than one person, was governed by section 42 of the Punjab Minor Canals Act, 1905, hereinafter called the Act, and it was, therefore, lawful for the Collector to act on behalf of the owners in any such case. Furthermore that the appellant was required under the law to have first obtained permission from the Deputy Commissioner (Collector), Mardan, before securing electric connection. The following contentions were advanced before the High Court in support of the writ petition, and they have been repeated before us:-‑ (1) That the Commissioner had no powers to order disconnection of the electricity connection, granted to the petitioner, as there is no law authorising him to pass any such order and (2) That Gulbara Nullah is neither part of Mukan Nullah nor a Nullah mentioned in Schedule II, and therefore, sections 42 and 49 of the Minor Canals Act and Notification No. 615‑Revenue‑N, dated the 1st of July 1912 (Exh. R‑4), are not attracted. With reference to the second contention, it has been argued that Gulbara Nullah not having been included in either Schedule I or Schedule II of the Act, is not a minor canal, and, therefore, the provisions of the Act are not applicable. In support of this contention the appellant has relied on section 41 of the Act which is as follows:‑ "Save as otherwise hereinafter expressly provided, the provisions of this Chapter shall be applicable to all canals, whether included under Schedule I or under Schedule 11." It is true that Gulbara Nullah as such is not mentioned in any one of the said two Schedules. It has, however, been contended on behalf of the respondents that as Gulbara Nullah drains into and is a source of Mukanan wala, the former is covered by clause (ii) of section 3 of the Act, which reds as follows:‑ "3(ii) `Canal' means any canal, natural or artificial channel or line of natural drainage or any reservoir, dam or embankment constructed, maintained or controlled for the supply or storage of water or the protection of land from flood or sand, and includes any portion of a canal or any watercourse or subsidiary works as defined in this section." This contention of the respondents finds support from the map prepared by the Patwari R‑3 (vide page 30 of the Original Record), on reference to which we find that Gulbara Nullah is a source of Mukananwala and the former drains into the latter. And Mukananwala is mentioned in Schedule II of the Act. It is, thus, evident that both sections 42 and 49 of the Act, which are as follows, apply:‑ "Section

42. Consent or decision of the owner how to be determined. Whenever, in respect of any canal, any question arises which has under this Act or the rules made thereunder to be determined by the request, consent or decision of the owner, and the ownership of such canal is vested in more persons than one who are unable to agree as to such request, consent or decision, it shall be lawful to the Collector to act on behalf of the owner in any such matter, and the request, consent or decision of the Collector, in any such case shall be binding upon every person who possesses any share in the ownership of such canal. In every such case the Collector shall give due consideration to the wishes of the shareholders or shareholders who possess the larger interest, and when the question is one whether the Government shall be required to take any action, the wishes of such shareholder or shareholders shall prevail and be accepted by the Collector. Section

49. Power to regulate flow ref water to rivers, creeks, natural channels, or lines of natural drainage and to prohibit therein or order removal therefrom of obstructions. The Provincial Government may, by notification published in the official Gazette, take power to regulate the flow of water in any river, creek, natural channel or line of natural drainage whether by the construction or removal of works or otherwise, and whenever it appears to such Government after enquiry through the Collector that the supply of water to a canal or the cultivation of any land or the public health or public convenience is likely to be injurious ly affected by the obstruction of any river, creek, natural channel or line of natural drainage it may, by notification published as afore said, prohibit within the limits to be defined by such notification the formation of such obstruction, or may within such limits order the removal or other modification of such obstruction." It appears that the appellant had applied to the Deputy Commissioner (Collector), Mardan for permission to install the aforesaid pump for irrigation, but it had been refused, vide copy of the order of the Deputy Commissioner, Mardan, dated the 7th of April 1959, at page 25 of the paper‑book. This fact was not disclosed when the appellant applied for and obtained the electric connection from the Electricity Department. The learned Judges of the High Court held that the Commissioner as the Administrative head of all the departments of the Division was competent to issue the impugned instructions under which the appellant's electric connection was discontinued by an order of the Executive Engineer. Further that the order by the Commissioner was necessary to enforce the said order of the Deputy Com missioner refusing permission to instal the pump. Both the contentions were, therefore, rejected by the High Court. The first contention advanced before the High Court raises a question of some complexity, and we do not think it necessary to express any opinion on this. It appears that it was under the order of the Executive Engineer, who was not a party before the High Court and is not a party before us, that the electric connection was discontinued. The real dispute between the parties is over the use of water of Gulbara Nullah and this is a matter that was within the jurisdiction of the Collector under sections 42 and 43 of the Act to decide. The appellant should have raised the dispute before the Collector and the latter was required to follow the procedure prescribed in the Act to settle the dispute. Both the sides appear to have misconceived the true character of the dispute. We, however, cannot help observing that both the appellant and res pondent No. 3 among others are co‑sharers of Gulbara Nullah, but while the latter had been permitted to set up two electric pumps for irrigating his lands situated on the bank of the Nullah, the former is totally denied any right to set up an electric pump to irrigate his lands similarly situated. There is a dispute between the parties and it should be resolved in accordance with the provisions of the Act and consistent with the right; of all the parties concerned. The appeal is, accordingly, dismissed but without any order as to costs. K. B. A. Appeal dismissed.