The Divisional Canal Officer of SCARP l Distribution Division (West), Lyallpur by an order made on 25-9-1971 directed that 159 acres of area of village Udhoke be transferred from Tube-well No. 293, village Udhoke Hafizabad, to Tube-well No. 285 of village Notheen. This order was expressed by him to have been passed under section 17/28 of the Punjab Soil Reclamation Act XXI of 1952 as amended. The residents of village Notheen already receiving supply of water from Tube-well No. 293 have invoked the Constitutional jurisdiction of this Court for challenging such a transfer of the area. The beneficiary respondents stated by an application which is dated 17-8-1977 that in view of the stay order pa3sed, the petitioners were not getting any water either from Tube-well No. 295 or 293 and they submitted to the claim of the petitioners and wanted that the orders be declared to be without lawful authority as admitted by them. Notwithstanding such an admission and failure of the statutory authority whose order is under attack to contest the proceedings as a declaration had to be given I had to hear the legal grounds on which such a petition was sought to be maintained.
2. The grounds taken up are mainly two. Firstly, it is stated that if this order is taken to be as expressed under sections 17/28 of the Act then the powers thereunder to transfer one area from one tube-well to the other was reserved for the Board which has not been shown to have been delegated to the Divisional Canal Officer and further that such a transfer or allocation of area has to be a part of the scheme of reclamation or soil conservation. 1n the present case. It is not a part of the scheme nor by the appropriate authority. Further, it has been stated and this ground has great merit, that the same dispute identical in nature and content had been considered by the Divisional Officer on 13-8-1961 and disposed of by a speaking order. Thereafter no change at all had taken place and the grounds which were then taken into consideration or were available could not be made the grounds for getting that decision re-opened. In this context it has also been urged that the statutory authority had not freely and willingly exercised its power for apart from ignoring the well considered order of his own predecessor, the statutory authority had been dictated to by the commands that it had received from the Chief Engineer who in turn had received it from the Governor in 1jlas-i-Aam. It was therefore, not a proper exercise of power.
3. The second ground, and it is in the alternative, taken up is that if the impugned order has been passed under the Canal and Drainage Act then in January, 1971, i.e. Before the impugned order was passed the Divisional Canal Officer was left with the appellate authority and not the original authority of passing an order under section 68 of the Canal and Drainage Act.
4. 1t is true that a well-considered order had been passed by the Divisional Canal Officer, Distribution Division (West), Lyallpur on 13-8-1966; (Annexure `B"). 1t bad taken into consideration all the factors and the circumstances which the statutory authority has taken in passing the impugned A order. There was no new factor which could be availed of by the statutory authority for reviving his jurisdiction which has for all purposes exhausted by a final order in the field. The same matter could not be after a period of five years, materially altered or reversed by the successors of the same authority, with no new factor coming into existence.
5. There is nothing on the record to show that in fact the Divisional Canal Officer was a delegate of the authority entrusted to the Board. On that account also the power exercised would appear to be without lawful authority.
6. In view of the facts brought on record and the arguments urged this petition is allowed and the impugned order is declared to be without lawful authority. No order as to costs.