' RAJA MUHAMMAD SHAFQAT KHAN ,ABBASI, Through this writ petition, the petitioner has assailed the order dated 27-5-1997 and 12-8-1997 passed by respondent No.1 i.e. Divisional Canal Officer, Lodhran, Canal Division Multan (DCO) and respondent No.2, Superintending Canal Officer, (SCO), respectively.
2. Brief facts giving rise to this petition are that the petitioners and the respondents were the irrigators from Outlet. No.8780/L of Rajbah Jangal; the respondents preferred an application before respondent No.1 for conversion of their Nakka from 8780/L to 9220/L Rajbah Jangle Tehsil Dunyapur, District Lodhran. The said application was turned down by respondent No.1 i.e. DCO by virtue of his order dated 24-3-1996; being aggrieved thereof the respondents preferred an appeal before respondent No.2 SCO, who bifurcated the irrigable land into two Mogas i.e. Mogas No.8780/L and 9660/L with the direction to respondent No.1 to prepare the case/order and present for confirmation. The order by respondent No.1 was pronounced on 27-5-1997 and was approved by respondent No.2 on 12-8-1997. Petitioner assailed the order dated 27-5-1997 and the order dated 12-8-1997 passed by respondent No.1 and respondent No.2 in this writ petition.
3. Writ petition was admitted for regular hearing on 10-2-1998. Notices were issued to the respondents to file written statement, meanwhile, operation of the impugned order was suspended on 10-2-1998. Respondent Nos.3, 9 refused to accept the service while respondents Nos.10, 11, 12 were served by their family members (sons and brothers) but they were not turned up. They were proceeded ex parte on 23-12-2003.
4. Learned counsel for the petitioner contends that the order dated 27-5-1997 understands digging of new water course for Moga Burje 660/L which was confirmed by respondent No.2 in its order dated 12-8-1997. The new water course cannot be raised without abridging one of the clauses of section 20 of the Canal and Drainage Act, 1873; that respondent while passing impugned orders have not complied or fulfilled the required conditions of section 20 of the Act, 1873; that impugned orders have been passed at the back of the petitioner, which is violation of principle of natural justice; that order dated 12-8-1997 is patently illegal and void as he has not applied his mind; that respondent No.2 had already rejected the application of the respondents Nos. 3 to 13 vide order dated 24-3-1996 (Annexure "A") in which he called the reasons after making enquiry, but he again passed the order dated 27-5-1997 just contrary to his previous order. This also proves the mala fide of the respondent No. 1 . By passing the order dated 27-5-1997 he cannot up set his own order dated 24-3-1996 because the appeal is provided under the law and it was only the respondent No.2 who could modify, reverse or confirm the order. Under the law, the respondent No.1 has no jurisdiction to change his own order. As a matter of fact the impugned order has been passed under political influence of the local MPA; that the order dated 27-5-1997 shows that respondent No.1 has passed this order in appeal against the order dated 24-6-1996 passed by the Sub- Divisional Canal Officer; under section 2 of the Canal and Drainage Act, 1873, no application can be given to the Sub-Divisional Canal Officer nor he is authorized to pass any order under Canal and Drainage Act, 1873; the original order under section 20 of the Canal and Drainage Act, 1873 can only be passed by respondent No.1 which is subject to the confirmation of the Superintending Canal Officer; in this view of the law, the impugned order shows that the original order was passed by the Sub-Divisional Canal Officer as such the whole proceedings are ab initio void; that firstly the enquiry was made by the Sub-Divisional Canal Officer which the learned respondent No.1 had taken into consideration and passed the order dated 24-3-1996 but while passing the impugned order, he has based the enquiry made by .The Ziledar which cannot be given more weight than the Sub-Divisional Canal Officer.
5. Learned counsel for respondents Nos.4 and 5 has supported the impugned order passed by respondents Nos.1 and 2 contends that the impugned orders are legal, the same cannot be interfered in the present proceeding, order passed under section 20 of the Canal and Drainage Act (VIII of 1873) can only be assailed by filing a civil suit. Civil suit is efficacious remedy against the order passed under sections 20, 68 of Canal and Drainage Act (VIII of 1873), hence, this writ is liable to be dismissed. Reliance is placed on the case of Sultan Ahmad v. Superintending Engineer, Bahawalnagar 1988 M LD 1460 and Muhammad Idress and others v. Superintending Engineer and another 1996 CLC 1746.
6. Arguments heard. Record perused.
7. After hearing the arguments of the parties and going through the impugned order and record available on the file I am conscious of the fact that order passed under section 20 of the Canal and Drainage Act (VIII of 1878) primarily has to be challenged through a civil suit as disputed question of fact normally cannot be resolved through exercise of writ jurisdiction. The order, dated 27-5-1997 understands digging of new watercourse for Moga Burje 9660/L which was confirmed by respondent No.2 in its order dated 12-8-1997. The new water course cannot be raised without abridging one of the clauses of section 20 of the Canal Drainage Act, 1873 the said clauses read as under:--- "The applicant shall not be entitled to use the link water course, if any, unit...
(a) he has paid to the land owner the compensation for the land occupied by such link water course in whatever shape if it is determined through mutual agreement, it has been rightly held in the case of Muhammad Mubeen v. DCO 2007 CLC 1168 that the canal authority should be applied for acquisition of land for establishment of the new water course.
(b) Possession of land for the said link water course has been acquired under the provisions of this Act.
' The impugned order, therefore, is repulsive to the afore-stated law on the subject. Respondent No.2 SCO confirmed the order of the respondent No.1 by simply affixing a rubber stamp, on the bottom of the order of respondent No.1 without applying the judicial independent mind. The stereotype rubber stamp has been pasted on the bottom of the impugned order of respondent No.1 after a lapse of more than two and half months in gross violation of law. The law fortified in section 20 at line 13 understands. After the expiry of thirty days of the announcement of the decision of the Divisional Canal Officer, if no objection is received and after giving due opportunity of hearing if an objection is received. The law enunciated in case of Bashir Ahmed v. Sardar Muhammad 1984 CLC 2158 understands as such a decision may be defined as determination arrived at after consideration of facts and in legal context, -law. The decision can be regarded the rejection of the application or its acceptance subject to the confirmation and modification by the Superintending Canal Officer. The application of mind for determination is not spelled out of a rubber stamp on the order which is to be confirmed. A birds eye over the mandatory requirement of law comprehend that the confirmation by the SCO respondent' No.2 on order of respondent No.1 must be made within 30 days, the departure thereto renders the order to be sanctioned unenforceable in the eye of law and a piece of paper only. It has been specifically enshrined that opportunity to parties be awarded before confirmation. In the 'instant case, no opportunity was afforded rendering the impugned order inoperative. No notice was pressed in services requiring the petitioner or the opposing party to appear and to put their cases before the SCO/respondent No.2 in case Muhammad Ismail v. Muhammad Sadiq and others 1971 SCM R 653 visualizes that principle found in old proverb "audi altrem partem" must be observed by Superintending Engineer.
It is the time settled proposition of law that any order arrived at without associating the parties is a property of waste paper basket having no room in the domain of law. Any order passed in violation of principle of natural justice cannot have the legal effect. Mrs. Anisa v. PIAC and others 1994 SCMR 232 Order passed by respondent No.2 is merely affixing the rubber stamp on the orders dated 27- 5-1997 passed by the respondent No.1/DCO, cannot be termed as legal determination of the appeal. The facts and circumstances of the present case demand that filing of civil suit may not be efficacious and speedy remedy. Controversy involved in the present writ petition can be resolved without entering into the disputed question of facts raised by the parties. Respondent No.2 acted in an unfair and arbitrary manner, hence, I am satisfied that without going to details of the factual controversy matter can be resolved in exercising the power under Article 199 of the Constitution.
Reliance is placed on Messrs Wak Orient Power and Light Ltd. Through Chief Secretary v.
Government of Punjab, Ministry of Water and Power through Secretary 1998 CLC 1178, Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector General of Police Sindh, Police Headquarter and 2 others PLD 1992 Kar. 283, Order passed by SCO-respondent No.2 is final in nature it can be assailed in a writ jurisdiction. Reliance is placed on Zulfiqar Ali and another v. Superintending Engineer, Multan and others PLD 1957 Lah. (W.P) 730. It is also significant to note that order dated 24-3-1996 and 27-5- 1997 passed by respondent No.1 are at variance. In the first order respondent No.1-DCO concluded that contention of the present respondents are frivolous whereas in the second order he has accepted the contention without passing the detailed reasoning.
8. In view of the above facts and circumstances of the case, order dated 12-8-1997 passed by the respondent No.2/Superintending Canal Officer is declared illegal and same is set aside. Case is remanded back to respondent No.2 to pass afresh speaking order, after hearing the parties.