' On 28-9-1973 the respondent filed a suit challenging the order of the Divisional Canal Officer, dated 3-9-1973 by which he had set aside the order of the Sub-Divisional Canal Officer, dated 13-7- 1973.
2. The dispute in the present case related to Warabandi of Chak No, 361/GB, Tehsil Toba Tek Singh, District Faisalabad, on the distribution of the water from outlet No, 54197/TR initially. Warabandi had been sanctioned on 6-8-1966 and the respondent had also made an application earlier which was rejected by the Sub-Divisional Canal Officer on 23-12-1972, No appeal was filed against the said order but instead second application was made on which Warabandi was changed by the Sub- Divisional Canal Officer vide his order dated 13-7-1973 and old Warabandi was changed. The suit was contested and the learned Civil Judge, Faisalabad, vide his order dated 31-5-1975 dismissed the suit. The respondent filed an appeal which was accepted by the learned Additional District Judge, Faisalabad vide his judgment dated 15-9-1979. The defendants have challenged the said judgment in the present revision.
3. On the pleadings of the parties the following issues had been framed : (1)Whether the impugned order of D, C.
0. Dated 3-9-1973 is illegal and void for reasons given in para. 9 of the plaint?
(2)Relief.
4. The learned trial Court on Issue No. 1 had observed that no dispute had arisen in relation to previously sanctioned Warabandi based on the existence of the new facts and as such there was no justification to amend the Warabandi and the impugned order of the Divisional Canal Officer, dated 3-9-1973 (Exh. P. 9) was held justified. The learned trial Court further observed that the Court could not sit in judgment for the Canal Authorities who were the best judge of the circumstances whether the Warabandi should be changed or not. The learned Additional District Judge found that the order of the Sub-Divisional Canal Officer, dated 3-9-1973 was most unjust and inequitable and for that he found the justification in the following words:- "Muhammad Yaqub appellant owns five acres of land in Square No, 61 situated in Chak No, 361/GB.
This land is irrigated by outlet No, 54197/TR. The respondents own land in Square No,
64. According to the sanctioned Warabandi, the turn of water supply of the respondent has been fixed after the turn of water supply of the appellant. Thus the appellant has to lead water from naka at Killa No, 5, Square No, 58, i,e, from a distance of seven or eight acres to irrigate bis land. On the other hand the owners of. Square No, 64, i,e, the respondents take turn after the turn of the appellant and thus do not have to lead water from any distance. The respondents own more land than the appellant who owns only five acres of land. The arrangement of distribution of water supply appears to be unjust and inequitable on the face of it."
' The learned Additional District Judge also observed that this inequitable distribution of water has resulted in a dispute between the land-holders and as such Warabandi could be changed under section 68 of the Canal and Drainage Act and accordingly reversed the order of the learned Divisional Canal Officer, dated 3-9-1973 and ordered the suit to be decreed.
5. The learned counsel for the petitioners has raised the following contentions :
(I) That no dispute had arisen after the sanctioning of Warabandi that would entitle the Canal authorities to re-open the matter;
(ii) That no new facts had come into existence and for that reason as well provisions of section 68 of the Canal and Drainage Act were not attracted to;
(iii) Order of the civil Court was not competent to sit in judgment over the decisions of the Canal Authorities and in case the order of the ' Divisional Canal Officer dated 3-9-1973 was found to be illegal, the case ought to have been remitted for fresh decision.
6. The last point has been conceded by the learned counsel for the respondent. Even otherwise the learned Additional District Judge was not competent to decide the matter on merits and ought to have remitted the case for fresh decision, and reliance in this behalf may be made to Badar Din v.
Bahadar Ali (1). In this case it was observed that from the reading of section 68 of the said Act it appeared that the intention of Legislature was to set aside the order of the Canal Officer but they are not vested with the power to determine the suit under section 68 on merits. It was further observed that the Canal Officers were in a better position to determine the panel of Warabandi.
Similar observations were made in Din Muhammad v. Tufail Mohammad, etc. (2) passed in review by which the earlier judgment was reviewed and modified by directing the Divisional Canal Officer to redefied the matter after allowing an opportunity to both the parties as it was deemed to be just and equitable and that it would have the effect of avoiding any anomalous position.
7. As regards the first contention it may be pointed out that the correct position seems to be that merely because there was in existence a Warabandi it cannot be said that the Divisional Canal Officer had no jurisdiction to pass an order relating to the use or distribution of water whenever a difference arose between two co-sharers in a particular outlet. Reliance in this behalf may be placed on a judgment reported as Shahab-ud-Din v. Mohammad Sharif (3). The relevant observations at page 335 may be quoted below : "The fact that a Warabandi exists does not debar the Divisional Canal Officer from acting. In fact if such interpretations were put on section 68 it would become almost useless for Warabandi exist for all outlets. Section 68 is like an arbitration clause and is attracted whenever a dispute arises. It may be that even with reference to facts which were already in existence a person raises a dispute.
As long as that dispute had not been decided by the Divisional Canal Officer, he would have jurisdiction to pass an order under section 68. The fact that the dispute is being raised on facts which have been in existence for a long time may affect the decision of the Divisional Canal Officer on the merits of the dispute but the competence of the Divisional Canal Officer does not depend on the coming into existence of new facts."
' Reliance may also be placed on Faqir Mohammad and others v. Ganda Singh and others (4) wherein it has been held that the Divisional Canal Officer has the jurisdiction to decide any difference arising between the co-owners even after Warabandi is fixed.
8. The learned counsel for the respondent has pointed out that apart from the harshness of the distribution of water there are two additional facts which had come to existence. After the sanctioning of the old Warabandi by the order dated 6-8-1966 some area had been included while the Forest Department who had been provided with water from the outlet in question had been excluded and reference in this behalf has been made to Exhs. P. 4 to 6. {{FOOT NOTE}}
(1) PLD 1968 Lah. 573 (2) PLD 1979 Lah. 826
(3) PLD 1958 Lah. 333 (4) AIR 1929 Lah. 260 {{FOOT NOTE}}
9. After the examination of the entire evidence on record it becomes abundantly clear that the first Warabandi of this outlet was sanctioned by the Canal Authorities vide order dated 6-8-1966. The first application of the respondent was dismissed on 29 3-1978 and there were some observations relating to hardship. In the subsequent order of the Divisional Canal Officer though no new fact was noticed but the dispute had been tried to be resolved. This order of the Sub-Divisional Canal Officer had been set aside vide order dated 3-9-1973 (Exh. P. 9) only on the ground that no new fact had come into existence so as to justify action under section 68 of the Canal and Drainage Act. In my view since the learned Additional District Judge was not justified to substitute his own judgment for the Canal Authorities the case has to be remanded for a fresh decision. However, it is hereby held that a dispute had arisen for taking action under section 68 of the Canal and Drainage Act and the Canal Officer ought to have given a finding or adjudicated upon the same. The two circumstances pointed out by the learned counsel for the respondent do not find mention in the judgment of the learned Additional District Judge but these facts may be taken as additional grounds for the change in Warabandi before the Divisional Canal A Officer.
10. In the light of the above discussion his revision is accepted, order of the learned Additional District Judge, Faisalabad, dated 15-9-1979 and that of the learned Civil Judge, Faisalabad, dated 31-5-1973 are set aside holding that the order of the Divisional Canal Officer, dated 3-9-1973 refusing to interfere under section 68 of the Canal and Drainage Act, 1873 was illegal. The case is remitted with a direction that the matter be decided after hearing both the parties and by resolving the dispute inter se the parties.
11. The learned counsel for the respondent submits that Warabandi has been changed and given effect to. Since the order of the Divisional Canal Officer has been set aside and only the order of the Sub-Divisional Canal Officer holds field and the present Warabandi is based on the said order, there is no need for giving any direction for maintenance of status quo However, the Divisional Canal Officer shall be competent to pass any appropriate order. In the circumstances of the case there will be no older as to costs.
Revision . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.