IJAZ AHMAD CHAUDHRY, J.---With the consent of both the parties, this case is admitted for regular hearing and is decided as a Pacca case today. Through this petition the petitioners seek setting aside of report dated 20-11-2003 submitted by respondent No.3 along with order dated 15-3-2004 passed by respondent No.1 being illegal and unlawful.
2. Brief facts of the case as narrated in this petition are that the petitioners and respondents Nos.6 and 7 are residents of same Mauza Sheikh Moosa Khalifa, Tehsil and District Muzaffargarh and both the parties own lands in the said area, being irrigated through the canal water. On 26-2-1996 respondent No.5 sanctioned Wara-bandi of Outlet No.23466/R of Rajbah Jakhri under section 68 of Canal and Drainage Act. The petitioners being not satisfied with the sanction of Warabandi, filed an appeal before the Divisional Canal Officer, who accepted the same vide order dated 26-6-1996 and case was remanded back to respondent No.5, who vide order dated 3-3-1997 sanctioned the Warabandi and also accepted the claim of the petitioners for irrigating their land which was not included in the earlier order dated 26-2-1996. Against the said order Writ Petition No.8632 of 2000 was filed by respondents Nos.6 and 7, which was dismissed for non-prosecution. According to the petitioners an application was moved by respondents Nos.6 and 7 to respondents Nos.1 to 3 and on the said application an inquiry was conducted by respondent No.2. The inquiry report was submitted by respondent No.2 before respondent No.1, who has passed the impugned order while directing the SE, D.G. Khan to take action in the light of inquiry report dated 20-11-2003 and that the issue be decided as per provisions of Canal and Drainage Act, 1873.
3. Learned counsel for the petitioners contends that under section 68 of Canal and Drainage Act, only Sub-Divisional Canal Officer is empowered to sanction the Warabandi, which has been sanctioned and against its order the remedy is to file an appeal before the SDCO; that appeal was filed before it and order passed by SDCO dated 21-9-1999 has attained the finality as nobody had challenged the same; that though respondents Nos.1 and 2 are high officials of Canal Department yet they were not empowered to pass the order for change of Warabandi, hence, the order passed by respondents Nos.1 and 2 being without jurisdiction may be set aside.
4. On the other hand, learned Addl. A.-G. On instructions has admitted that respondents Nos.1 to 3 are not empowered to pass such on order but only SDCO is empowered to sanction the Warabandi and the order can be modified in appeal by Divisional Canal Officer.
5. On the other hand, respondent No.7 opposes this petition on the ground that respondents Nos.1 to 3 are also empowered to change the Warabandi as under section 3(7) of the Act they are canal officers and under section 6 of Canal and Drainage Act canal officer can pass the appropriate order for the use of water. Hence,, the order passed in appeal by Divisional Canal Officer on 21-9- 1999 was rightly set aside.
6. I have heard the learned counsel for the parties and perused the inquiry report along with impugned order and the relevant law. Under section 68 of the Act only Sub-Divisional Canal Officer is empowered to make the changes in Warabandi and can sanction the fresh Warabandi. Against the order of SDCO, if any person is aggrieved, he can file an appeal before Divisional Canal Officer.
Respondents Nos.1 to 3 do not find figure anywhere in the Act for sanction of Warabandi and resolving the matters between the private persons regarding the passage of water as well as' supply of water A to their land, hence, any order passed by respondents Nos.1 to 3 regarding change of Warabandi and sanction of water is illegal and unlawful. However, according to SDCO, who has brought the record, no order has been passed for the change of Warabandi. It is also stated by him that the order dated 8-11-2001 was passed due to political interference at the behest of respondents Nos.6 and 7 and the same was not passed while keeping in view the factual position at the site or in the Revenue Record and it was the reason that said order was never implemented.
7. On the other hand, learned counsel for respondents No.6 and 7 also relied upon the order dated 21-9-1999 in W.P. No.8632 of 2000 filed by them claiming that order dated 3-3-1997 passed by Divisional Canal Officer was set aside in appeal. According to SDCO, who has brought the record, no such order is on the file and it was also disclosed in the proceedings of earlier writ petition filed by respondents Nos.6 and 7 that the order was not on the file. It is factual controversy that whether the said order was passed or not and this point cannot be resolved here in writ jurisdiction. Hence, the instant writ petition is accepted and the impugned order dated 15-3-2004 passed by respondent No.1 is set aside. However, if any of the party approaches the Sub-Divisional Canal Officer, he can pass afresh order in accordance with law after hearing both the parties without being influenced by the inquiry report of. Respondent No.3.