1. MUHAMMAD HALEEM, J.-This appeal by special leave is against the judgment of the former High Court of West Pakistan, Lahore, dated 5th of June, 1971 by which Writ Petition No. 566 of 1967 was accepted.
2. The appeal arises in the following circumstances: The respondent herein which is a limited Company purchased .In 1951 barren State land measuring 211 acres, 2 kanals and 11 marlas by private treaty at Rs. 360 per acte for installing a tannery and industries subsidiary thereto.
3. Thereafter, it applied for permission to utilise some of the acrage for "agricultural purposes" and also prayed for the supply of the canal water to irrigate it. But permission was refused which gave rise to arbitration proceedings before the Divisional Commissioner in accordance with clause 12 (i) of the sale agreement between the parties, who, gave his award on 25th of November, 1959, in favour of the respondent subject, however, to the payment of additional price of the land @ Rs. 100 per acre. It was further stated in the Award that the conversion was intended for the reason for making the land fit for growing Keekar and Hara trees necessary for the tannery industry which needed the supply of canal water ; and that on 24th of October, 1958, by an order the canal authorities were directed to extend the supply of canal water to this land in the interest of tannery industry and `grow more food' campaign.
4. The respondent deposited the balance of the price for an area measuring 201 acres, 3 kanals and 18 marlas whereupon the Deputy Commissioner by a letter dated 3rd of May, 1960, requested the Executive Engineer of the Lower Bari Doab Canal for providing canal water for irrigating the land. In his reply dated 5th of July, 1961, the Executive Engineer informed the Deputy Commissioner that the area in question is neither included in the capacity of the outlet nor in the capacity of the channel sanctioned by the Chief Engineer vide his No. 331/S-.N. O. R. Dated 11th of August, 1934, and hence no canal water can be supplied to irrigate that land; and besides the case was referred to the Governor who had turned it down.
5. Thereafter, the respondent filed the Award in the Court of the Senior Civil Judge, Montgomery, under section 14 of the Arbitration Act on 24th of November, 1962, seeking to have it made a Rule of the Court. In the application filed along with it the Province of West Pakistan and the Superintending Engineer, Lower Bari Doab Canal were arrayed as defendants. In the objections filed by the defendants in that suit it was stated that they had the right to stop the supply of water; that the award awaited confirmation by the Board of Revenue under paragraph 92 (v) (vi) of the Standing Order No. 67; and that the Civil Court had no jurisdiction to entertain the award against the provisions of section 36 of the Colonisation of the Government Lands Act, 1912. The objections were dismissed and the Award was made a Rule of the Court by order dated 15th of September, 1964. No appeal was preferred against the decree which assumed finality.
6. Again, the respondent made an application to the Superintending Engineer, seeking the supply of canal water who by letter dated 7th of April, 1965, directed the Divisional Canal Officer, Montgomery, to include the land in the C. C. A. Of the relevant outlet. The respondent was also directed to contact the Divisional Canal Officer, Montgomery Division, in connection with the fixation of the Wara Bandi. By an order dated 30th of May, 1966, passed under section 20 of the Canal and Drainage Act, the Divisional Canal Officer directed that an area measuring 197-16 acres be included in "C. C. A. Of outlet No. 665500-R/IR/9L". He also made it clear in that order that no new Khal or Naqas were required to be sanctioned; and that in support of the order he gave technical data having a bearing on the question of water supply and that his order was subject to confirmation by the Superintending Canal Officer, Lower Bari Doab Canal Circle, Montgomery.
7. However, this order was not confirmed by the Superintending Engineer as would appear from his order dated 11th of September, 1966, who treated it as "a case of extension of irrigation" and as such it should have been considered by the competent authority under section 20 of the Canal and Drainage Act, 1973.
8. The respondent assailed this order in the High Court claiming the reliefs that it be declared as without lawful authority and a direction be issued to the Canal authorities to supply canal water as per order of the Superintending Engineer dated 7th of April, 1965. On behalf of the respondent it was contended in the High Court that in the face of the Award and the sanction granted by the Superintending Engineer on the 7th of April, 1965; his successor had no jurisdiction to pass the impugned order and, therefore, the refusal to confirm the order of the Divisional Canal Officer was without lawful authority. Support for the contention was taken from the fact that neither the Provincial Government nor the Superintending Engineer-who were parties to the suit appealed against the decree making the Award a Rule of the Court. Accordingly, the order of the Divisional Canal Officer dated 30th of May, 1966, could not have been rejected also the appellant was under an obligation to supply canal water. It was further contended that the impugned order was arbitrary and for this reason along it could be avoided. Lastly, it was urged that the technical data was sufficiently given by the Divisional Canal Officer in his order which showed that sufficient supply of water was available for irrigating the Land and, therefore, even on merits there was no reason to reject the proposal.
9. The appellant took the stand that as the land sold was barren State land and that too for the tannery industry there was no obligation to supply canal water having regard to the purpose for which the land was sold. It was next submitted that the Award did not provide for the supply of canal water, and that the Superintending Engineer who had turned down the proposal was not a party to the proceedings resulting in the decree and as such he was not bound by it. Objection was also taken to the order passed by the Superintending Engineer dated 7th of April, 1965 sanctioning water supply as it was against the provisions of section 20 of the Canal and Drainage Act, 1873, as no notice was given to the shareholders prior to the sanction. Finally; it m as urged that the Divisional Engineer had properly exercised his jurisdiction on merits in refusing to accord permission as the authority to include additional area within the irrigation boundary rested with the Chief Engineer and the Provincial Government and that they had rejected the prayer in this behalf.
10. The High Court considered the contentions of the parties and held :- "The interim order, partly reproduced above, shows unmistakably that whatever the scope of the arbitration clause, as contained in paragraph 12 of the sale-deed, the petitioner was seeking a conversion from industrial to agricultural purposes and was also demanding water supply for the same. It is, therefore, not possible to accept the contention raised on behalf of the Superintending Engineer were not aware of the real purpose of the arbitration proceedings, nor is it possible to agree that the Superintending Engineer was not bound by the Award, or the consequential decree of the civil Court, as he was not a party to these proceedings. The assertion is factually incorrect, as in the judgment and decree granted by the Senior Civil Judge the Superintendent Engineer and the Province of West Pakistan are both cited as defendants. In the copy of the arbitration Award, placed on the record, the names of the defendants are clearly stated to be the same as were arrayed before the civil Court."
11. As such it was held that it was not possible to accept that individual department of the Provincial Government was not bound by the decree passed .Against the Government. Equally it appears that the High Court also went into the question of the scope of the Award in the context of para. 12 (i) of the arbitration clause contained in the sale agreement and reached the conclusion that supply of canal water for agricultural purposes was included within its scope. Accordingly, it rejected the appellants contention that this question was not referable as a dispute to the decision of Arbitrator.
12. The High Court further held that it was patent from the order of the Divisional Canal Officer dated 30th of May, 1966, that he had fully complied with the formalities prescribed by section 20 of the Act and that the share--holders were duly served with the notices and heard on 25th of April, 1966 ; and it was thereafter that the order was passed; that therefore, there was no reason either for the Superintending Engineer or the Provincial Government to raise this objection; and that the further submission that it should have been the Divisional Canal Officer who should have in the first instance invoked this provisions was a mere technicality in the context of the Award having been made a rule of the Court and no appeal having been filed against it. The High Court on the merits of the impugned order held that it did suffer from serious infirmity as no cogent reasons were given to withhold the permission. Accordingly, it' was -without lawful authority and of no legal effect, with the result that the order of the Divisional Canal Officer dated 30th of May, 1966, held the field and the High Court while accepting the petition directed the Provincial Government and the irrigation Department to supply canal water in accordance with the decision of the Divisional Canal Officer dated 30th of May, 1966.
13. Leave was granted to consider the question as to whether such direction could be given by the High Court as it amounted to bypassing the mandatory provisions of section 20 of the Canal and Drainage Act. The learned Assistant Advocate-General, in support of the submission that the High Court should have remanded the case to the Superintending Engineer Io pass a fresh order has relied on Shahadat Khan and another v. Home Secretary to the Government of Pakistan and others ( PLD1969SC158). In that case it was held that under Article 98 of the 1962 Constitution, clause (2)
(a) (ii) thereto does not provide for the making of any consequential order. It merely gives t the High Court the power to declare the act done or a decision taken by C the functionary of the Government in the province or a local authority to have been done or taken without lawful authority and of no legal effect; and the consequences of this declaration will follow of their own force.
14. The High Court in the facts and circumstances of the case has held that the impugned order of the Executive Engineer was without lawful authority and of legal effect; and that the respondent was legally entitled to the supply of water pursuant to the decree. This conclusion seems to us to have assumed finality as leave was granted only to consider the question as to the propriety of the direction issued by the High Court. As the foundation of the order of the Divisional Canal Officer dated 30th of May, 1966, is the sanction accorded by the Superintending Engineer on 7th of April, 1965, pursuant to the legal obligation created by the decree, it seems to us that the direction given by the High Court was nothing more than the expression of the consequences , which flowed from that order and by way of abundant caution, considering the highly contested nature of the dispute in regard to the supply of canal water. We also do not give any importance to the passing of any fresh order as sanction had already been accorded by the Superintending Engineer and it would thus be a futile exercise, considering the prior approval and the finding given by the High Court on the merits of the case. This case, accordingly, is distinguishable of facts and does not militate against the principle laid down in the case cited above.
15. This appeal has no merit and is dismissed but with no order as to costs.