The brief facts out of which the present revision petition arises are that the petitioners submitted an application before S.D.C.O. for change of wars bandi which was dismissed vide order dated 14.12.1996. The petitioners being aggrieved filed appeal before the D.C.O. who accepted the same vide order dated 14.4.1997. The respondents being aggrieved filed a suit for declaration before the Civil Judge 1st Class, Faisalabad on 15.4.1997. The contents of the plaint reveal that respondents are owners of square No, 16 and petitioners are owners of landed property in Square No, 9 Killa No, 11, 20 and 21 which are being irrigated from Mogha No, 16722/L Rajbah Jaswana. The contents of the plaint further reveal that the petitioners submitted an application before SDCO. for sanctioning Nakka at Killa No, 11 in Square No, 9 instead of Killa No, 5, Square No, 9 which was dismissed by the SDCO vide order dated 14.12.1996. The contents of the plaint further reveal that petitioners preferred an appeal against the said order before DCO who accepted the same vide order dated 14.4.1997 and sanctioned a Nakka at Killa No, 11 Square No, 9 which is against law and facts, void illegal and ineffective upon the rights of the respondents/plaintiffs. The contents of the plaint further reveal that the landed property of the respondents/plaintiffs was situated in Square No, 16 and spot level of the property is very high and the petitioners' property is. low line. If the order of DCO sanctioning of Nakka at Killa No, 11 Square No, 9 remains in tact then the respondents/plaintiffs would be suffering irreparable loss. The petitioners/defendants filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues :--
1. Whether the disputed orders dated 14.12.1996 and 14.4.1997 are against the facts and law, without authority, and liable to be set aside ? OPP.
2. Whether the plaintiffs are entitled to declaratory decree as prayed for ? OPP
3. Whether the plaintiffs have no cause of action ? OPD
4. Whether the suit is liable to be dismissed under Order 7 Rule 11 CPC ? OPD
5. Whether the respondents have violated the orders of this Court? If so, its effect ? OPP.
6. Relief.
2. The trial Court dismissed the suit vide judgment and decree dated 30.7.2002. The respondents being aggrieved filed appeal before the Additional District. Judge, Faisalabad on 26.8.2002 who accepted the same vide judgment and decree dated 22.4.2003. Hence the present revision petition.
3. Learned counsel of the petitioner submits that judgments of both the Courts below are at variance. He further submits that First Appellate Court did not advert to the reasoning of the trial Court. He further submits that D.C.O. was the competent authority qua the sanctioning of Wara- bandi between the land owners in view of the provisions of the Canal and Drainage Act. Therefore, suit of the respondents was not maintainable and the suit was rightly dismissed by the trial Court whereas the First Appellate Court erred in law to accept the appeal of the respondents. The judgment of the First Appellate Court is not in accordance with the law laid down by the superior Courts. In support of his contention he relied upon the following judgments :- 1. Bashir Ahmad versus Abdul Razzaq, (1996 SCMR 536).
2. Bashir Ahmad versus Muhammad Khan, (1995 SCMR 891).
He further submits that respondents have no cause of action and filed the suit without fulfilling the mandatory requirements of Order 1, Rule 8 CPC. Therefore, First Appellate Court erred in law to accept the appeal of the respondents. He further submits that judgment of the First Appellate Court is result of mis-reading and non-reading of the record. Therefore, the same is not sustainable in the eyes of law. In support of his contention he relied upon Col. (Retd.) Fakhr Hussain Shah versus Raja Muhammad Aslam (1991 MLD 243). He further submits that respondents did not sustain any loss for change of Nakka of the petitioners as the land of the petitioners falls before the land of the respondents. Therefore, respondents cannot sustain any loss of water and in fact they would be benefited by this arrangement. He further submits that impugned judgment is not sustainable in the eyes of law as the same was passed by the First Appellate Court without adverting to the mandatory provisions of Canal and Drainage Act.
4. Learned counsel of private respondents submits that petitioners filed application before SDCO under Section 68 which relates to Wara bandi. The SDCO was not competent to entertain the application for change of Nakka under Section 68. He further submits that SDCO decided the application under Section 68 as is evident from order dated 14.12.1996. The DCO also decided the appeal of the petitioners keeping in view Section 68. He further submits that petitioners should have filed application under Section 20 of the Canal and Drainage Act. He further submits that procedure prescribed qua both the aforesaid Sections is entirely different. He further submits that procedure under Section 20 was not followed by the authorities under the Canal and Drainage Act.
He further submits that First Appellate Court decided the case after proper appreciation of evidence whereas the trial Court decided the case without proper appreciation of evidence on record.
5. Learned Addl. A.G. submits that impugned judgment is in accordance with the provisions of the Canal & Drainage Act. He further submits that petitioners are enjoying the benefit from the present Nakka since 7 years ago without any interruption from any side except the private respondents.
Therefore, it is not in the interest of any of the parties to disturb the arrangement at this stage.
6. Learned counsel of the petitioner in rebuttal submits that impugned judgment is not in accordance with law.
7. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
8. It is better and appropriate to reproduce the relevant provisions of law to resolve the controversy between the parties: "Section 20. Supply of water through intervening water-course or change of source of water supply.--Whenever application is made to a Divisional Canal Officer for a supply of water from a canal through an existing water-course or change of source of water supply of any land and he considers it expedient, shall give notice to all persons interested including the land owners through whose land any link water-course is to pass, to show-cause on a day not less than fourteen days from the date of such notice why the said supply should not be so conveyed, or the source of supply be changed, and after making enquiry on such day, the Divisional Canal Officer shall determine, whether and on what conditions the said supply shall be conveyed through such water-course or that the source of water supply shall be changed or the link water-course shall be aligned and constructed. After the expiry of thirty days of the announcement of the decision of the Divisional Canal Officer, if no objection is received and after giving the opportunity of hearing, if any objections is received, the Superintending Canal Officer may confirm or modify that decision. The decision of the Superintending Canal Officer shall be binding on the applicant, the persons responsible for the maintenance of the said water-course, all the persons affected by the change of source of water supply, and the land owners through those land the link water-course shall pass.
Such applicant shall not be entitled to use the said water-course until he has paid the expenses of alteration of such water-course necessary in order to his being supplied through it, and also such share of the first cost of such water-course as the Divisional or Superintending Canal Officer may determine.
The applicant shall not be entitled to use the link-water-course, if any, until (a) he has paid to the land-owner the compensation for the land occupied by such link water-course in whatever shape if it is determined through mutual agreement (b) possession of land for the said link water: course has been acquired under the provisions of this Act.
Such applicant shall also be liable for his share of cost of maintenance of the water-course as long as he uses it."
"Section 68--(1) 'Settlement of difference as to mutual rights and liabilities of persons interested in the use of water from a canal outlet--Whenever a difference arises between two or more persons with regard to the distribution of water from a canal outlet, construction, use, or maintenance of the water-course supplied with water from the outlet, or deposit of soil from water course clearance, or mutual rights and liabilities in that regard, any such person may apply in writing to the Sub-Divisional Canal Officer stating the matter in dispute. The Sub Divisional Canal Officer shall thereupon proceed in the matter as laid down hereafter. (2) Such officer shall give notice to all persons interested and liable to be affected that on a day to be named in such notice he will proceed to enquire into the said matter and after such inquiry, he shall pass his order thereon, unless he transfers (as he is hereby empowered to do) the matter to the Collector, who shall thereupon enquire into and pass his order on the said matter. (3) Any person aggrieved by an order made by such Officer under Sub-section (2) may within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer. (4) Where an appeal has been preferred under Sub-sec. (3), the Divisional Canal Officer-- (a)shall decide the appeal as expeditiously as possible, and (b)may pending the disposal of the appeal stay the operation of the order appealed against; provided the stay order does not adversely effect any standing crops.
(5) The applicant shall not be entitled to use the water-course that may be sanctioned under Sub- secs. (2) or (3) above for conveyance of water to his land or the land require& for the deposit of soil from water-course clearances, until-- (a)he has paid to the land-owner the compensation for the land occupied for any of the aforesaid purposes in whatever shape it is determined through mutual agreement; or (b)possession of the land has been acquired under the provisions of this Act. (6) Any order passed under Sub-sec. (2) if there be no appeal preferred against it and an order passed in appeal under sub-sec. (3) 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 shall thereafter remain in force until it is set aside by a decree of a Civil Court" In case the aforesaid provisions of law are put in a juxta-position then the case of the petitioners does not fall under Section 68. It is pertinent to mention here that all the functionaries under the Canal and Drainage Act and Courts below did not advert to Section 20 of the Canal and Drainage Act. Therefore, public functionaries as well as the Courts passed the orders, judgment and decrees without applying their mind and without adopting the proper procedure prescribed in Section 20 aforesaid, therefore, orders are without lawful authority. In arriving to this conclusion I am fortified by the following judgments:-- Shamas-ud-Din v. Province of Punjab (PLp 1992 Lahore 370). Ghazanfar Khan and others vs. Taj Muhammad (1970 SCMR 139). Nawab Din vs. Abdullah and another (PLD 1977 Lahore 220).
Kania Lal & others vs. Narain Singh and others (50 Indian Cases 299).
It is settled principle of law that Courts are bound to decide the controversy between the parties in accordance with law with reasons as per principle laid down by the Hon'ble Supreme Court in Mollah Ejahar Ali vs. Govt. of East Pakistan (PLD 1970 S.C. 173). After addition of Section 24-A in the General Clauses Act it is the duty and obligation of the public functionaries to decide the controversy between the parties with reasons. The orders of the SDCO and DCO do not contain any reasons and proper application of mind. Therefore, same are not sustainable in the eyes of law as per principle laid down by the Honourable Supreme Court in M/s. Airport Support Services case (1998 SCMR 2268). It is settled principle of law that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not proper excuse in the matter as per principle laid down by the Honourable Supreme Court in Muhammad Sarwar's case (PLD 1969 S.C. 278). Respondents Nos, 2 and 3 had considered the application of the petitioners under Section 68 which is not in accordance with the parameters prescribed under the law in Section 20. It is settled principle of law that when the basic order is without lawful authority then the superstructure would have to fall on the ground automatically as per principle laid down by the superior Courts in the following judgments:- Crescent Sugar Mills' case (PLD 1982 Lahore 1). Yousaf Ali's case (PLD 1958 S.C. 104).
9. In view of what has been discussed above, the orders of Respondents Nos, 2 and 3 and judgments of both the Courts below are set aside. As the petitioners are availing the facility from the present Nakka for the last 7 years in the interest of justice and fair play the parties are directed to maintain the same arrangement for two months. The petitioners are directed to file proper application under Section 20 before the competent authority within 10 days from today. The competent authority shall decide the same positively within 1-1/2 months after completing all legal formalities even at the cost of day to day proceedings. With these observations this revision petition is disposed of.