' MUHAMMAD AKHTAR SHABBIR, J.--- This writ petition has been filed to call in question the order, dated 3-8-2006 passed by respbndent No,10, President Farmers Organization, Rajbah Hamza Gogera Division, Faisalabad.
2. The petitioner is a share-holder of outlet No,15643/T.L. Of Rajbah Hamza Chak No,164/GB Tehsil Gojra District Toba Tek Singh. He submitted an application under section 68 of the Canal and Drainage Act for amendment of Warabandi for enhancement of the share for the said out-let before SDCO. On the said application, notice was issued to the parties and vide order, dated 24-4- 2006, the SDCO made amendment in the existing Warabandi.
3. The Respondents Nos.1 to 4 had filed number of suits, feeling aggrieved of the order of the SDCO but the same have been withdrawn. The respondent No,1 had also filed Writ Petition No,4708 of 2006 through respondent No,5 challenging the order, dated 22-4-2006 passed by SDCO and the writ petition was dismissed in limine by this Court on 15-5-2006. The respondents Nos.1 to 4 thereafter had filed an appeal before the Divisional Canal Officer Lower Gogera Division Faisalabad, which is still pending before him. The respondent No,10 President Farmers Organization has taken the cognizance of the matter and assumed the jurisdiction on a miscellaneous application filed by one Taj Din son of Sardar Muhammad and set aside the order passed by SDCO vide his order dated 3-8-2006.
4. Learned counsel for the petitioner contended that the respondents have availed of the remedy of appeal before the Divisional Canal Officer and the appeal is sub judice before the competent authority. Further contends that respondent No,4 is not the appellate authority qua the order passed by the Sub-Divisional Canal Officer under section 68 of the Canal and Drainage Act. Further contends that the order impugned has already been challenged by the respondents through Writ Petition No,4708 of 2006, which was dismissed on 15-5-2006 and thereafter, assuming the jurisdiction by respondent No,10 is without lawful authority. Further contends that the application by the petitioner has been filed on 16-4-2005 and the Punjab Irrigation and Drainage Authority (Pilot Farmers Organization) Rules, 2005 have been notified thereafter, not attracted to the present case.
5. While on the other hand, learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the petitioner contending that respondent No,10 is authorized to take the cognizance of the matter. Under Rule 18 read with Rule 23 sub-rule (3) of Punjab Irrigation and Drainage Authority Rules, 2005, the respondents proceed in the matter regarding share of water of the outlet.
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. Rule 23 of the Punjab Irrigation and Drainage Authority (Pilot Farmers Organization) Rules, 2005 empowers the Khal Punchayat or Farmers Organization for resolution of the disputes which read as under:-- "Rule 23. Disputes among Farmers.--- (1) All disputes relating to the use of the canal water between the Farmers or other water users including those matters which are covered under the Canal and Drainage Act, 1873 (VIII of 1873), and the rules framed thereunder, shall be resolved through mediation by the Khal Punchayat of the area.
(2) Where the Khal Punchayat is unable to resolve the dispute in a reasonable time, it shall refer the case to the Farmers, Organization or the Nehri Punchayat of the area, as the case may be.
(3) The Farmers Organization or the Nehri Punchayat as the case may be, shall thereafter proceed with the case and after notice to the parties and such inquiry which he or it may deem necessary, give decision thereon and provide a copy of the decision to the parties to the dispute: ' Provided that the Farmers Organization or the Nehri Punchayat as the case may be shall consult the Khal Punchayat of the area before deciding the dispute.
(4) A person aggrieved by the decision under this rule may appeal to the authority, to a duly Authorized Officer of the authority or to a committee constituted by the authority and the decision of the authority of the officer or of the committee shall be final."
Rule 18 of the said rules deals with the functions of Farmers Organization and Nehri Punchayat. The relevant provisions are reproduced as under:- "'(1) A Farmer Organization or a Nehri Punchayat formed under these rules shall ordinarily perform the following functions:--
(a) Resolution of dispute between two or more Farmers as to their mutual rights or liabilities in respect of the use, construction or maintenance of a water course after providing an opportunity of hearing to such dispute;
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(s) exercise powers and to perform such other functions as are necessary and proper for the performance of the above functions.
(2) Notwithstanding the provisions of sub-rule (1) the Authority may empower a Farmers Organization with all or any of the following functions, namely:--
(a) To manage, operate and maintain the irrigation infrastructure of the channels including by hydraulic structure according to the approved design;
(b) to obtain irrigation water supplies from the main or branch canal at its head regulator;
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(i) to settle water disputes relating to the Farmers or other water user of the area; and
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(3) Where a Nehri Punchayat has been established within the area of a Farmers Organization, the Nehri Punchayat shall assist the Farmers Organization in the performance of its duties and functions as per the directions of the Farmers organization."
8. From plain reading of the above said rules 17, 18 and 23, it is manifestly clear that all the disputes between the farmers shall be resolved by the Khal Punchayat or the Farmers Organization or the Nehri Punchayat of the area as the case may be and that the power shall be exercised through mediation, the first application shall be made by the party before the Khal Punchayat in the first instance. If the Khal Punchayat is unable to resolve the dispute in a reasonable time, it shall refer the case to the "Farmers Organization" or the "Nehri Punchayat" as the case may be. In case the "Khal Punchayat" fails to refer the dispute a party to the suit may make an application to the "Farmers Organization" for resolution of the dispute. The order passed by respondent No,9 was directly challenged before the President Farmers Organization respondent No,10. Neither the application was filed by Taj Din son of Sardar Muhammad before the Khal Punchayat nor the case was referred by the Khal Punchayat to the Farmers Organization. The applicant could not file the application before the respondent No,1 without exhausting the remedy provided in the Rules. The requirements of rules have not been complied with by the respondents or the applicant before respondent No,10.
9. The word "shall" has been used in Rule 23 sub-rules (1) (2) and (3) which is a mandatory in nature. The Farmers Organization cannot take the cognizance of the dispute directly without referring the matter by the Khal Punchayat. The respondent/applicant was duty bound to approach the Khal Punchayat for resolution of the dispute, in the first instance, which shall mediate the dispute between farmers for equitable distribution of the canal water as per rules 17(a) of the Rules.
10. Learned counsel for the petitioner has not been able to establish that the Canal and Drainage Act has been repealed by the PIDA Act. Section 68 of the Canal and Drainage Act also deals with the settlement of difference as to mutual rights and liabilities of persons interested in the use of water from a canal outlet. The provisions of said section are also reproduced as under:- "68. Settlement of difference as to mutual rights and liabilities of persons interested in the use of water from a canal outlet.--- (1) Whenever a difference arises between two or more persons with regard to the distribution, use, or maintenance of the watercourse supplied with water from that outlet or deposit of soil from watercourse 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 thereunder 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 subsection (2) may within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer.
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(6) Any order passed under subsection (2) if there be no appeal preferred against it and an order passed in appeal under subsection (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."
11. In the instant case, the SDCO has passed the order under section 68 of the Canal and Drainage Act on 22-4-2006. No appeal within 15 days has been filed by the aggrieved persons instead they have challenged the order through a writ petition, which was dismissed on 15-5-2003 and thereafter they resorted their remedy through different suits which were later on withdrawn. If the appeal is not filed, or if filed, any order passed in appeal shall be final and it shall remain enforced unless set aside by a decree of Civil Court. The impugned order passed by the SDCO had attained finality because the appeal has not been filed within the stipulated period.
12. Learned counsel for the petitioner has miserably failed to refer any provision of law to show that respondent No,10 is the appellate authority qua the order passed by the SDCO. The case has also not been referred by the Khal Punchayat to the Farmers Association. The application under section 68 of Canal and Drainage Act was filed before the .SDCO on 4-5-2005. The PIDA Rules were enforced through Notification in the official Gazette thereafter, therefore, this notification has no retrospective effect as laid down in the case of Dr. Shahida Nasreen, Additional Medical Superintendent, Services Hospital, Lahore v. University of the Punjab through Vice-Chancellor, Lahore and 2 others PLD 1999 Lah. 207 .
13. In view of the above discussion, I find that the order passed by respondent No,10 setting aside the order, dated 22-4-2005 passed by SDCO is not sustainable in law, which is declared to have been passed illegally, without lawful authority and of no legal effect. Resultantly, the writ petition is accepted as prayed for.