' IQBAL HAMEED-UR-REHMAN, J.---Through this revision petition, the petitioners seek setting aside of the impugned order, dated 10-11-2009 passed by the learned Trial Court and the order, dated 30-1- 2010 passed by the learned appellate Court.
2. Brief facts succinctly required for the determination of this revision petition are that the petitioners are owners of land measuring 42 acres. They and the private respondents Nos. 6 to 8 have been irrigating their land from Outlet No, 52965/3-1 situated in Chak No, 165-EB, Arifwala for the last more than 65 years without any disturbance and complaint. However, respondent No,6 in the year, 1998 filed an application before the Divisional Canal Officer (respondent No,3) for sanction of a new outlet from RD, 56000-L of 3L distributory. The said application was accepted by the Divisional Canal Officer (respondent No,3) vide his order, dated 27-7-1998 and he forwarded the case to the Superintendent Canal Officer (respondent No,2) for confirmation. The Superintendent Canal Officer (respondent No,2) returned the file with the following observations:-- "(1) Please obtain N.O.C. From Pakistan Railway Department for construction of water course crossing and water course from the land owned by the Railway Deptt.
(2) Neither you have proposed new link water course for sanction nor obtained consent from the land owner from where new link course is to be sanctioned. Needful should be done.
(3) Date mentioned in the notices issued to the shareholders of outlet RD52965-L are doubtful. It should be explained.
(4) In the proposed position, irrigation for sq: Nos. 55, 56, 58, 59, 60 will suffer badly as the water would have no turn against the natural slope of country. It should be explained.
(5) Last three years irrigation figures statement duly verified by the Deputy Collector should be attached with the case.
(6) It should be explained why both the outlets i.e, 52470-L and outlet RD: 52965 were amalgamated and war bandies of these outlets were not prepared/sanctioned separately.
(7) Index of the missal should be completed.
(8) Photostat copy of SDO's check level book should be attached duly attested by you.
(9) You should personally inspect the site as is also required in case of shifting head of outlet and put up the case to the undersigned at the site with your complete/detailed inspection report".
The file had been kept pending for the last more than 9 years but subsequently on the appointment of new Superintendent Canal Officer, who of his own, without adverting to the observations earlier made by his predecessor as above, confirmed the order, dated 27-7-1998 passed by the Divisional Canal Officer by giving an arbitrary finding to the effect that most of the area on the Outlet No,52965-L was without any irrigation facility and was suffering badly and it is stated that the same was not the case of any one. Being aggrieved of the order of the Superintending Canal Officer (respondent No,2), the petitioners filed a suit for declaration on 4-8- 2009 and along with the same, they filed an application for the grant of temporary injunction before the learned trial Court. Although the suit is pending but the learned trial Court has refused to grant temporary injunction and dismissed the application of the petitioners vide order, dated 10-11- 2009. The petitioners assailed the said order in appeal, which was dismissed by the learned District Judge, Pakpattan, vide his judgment, dated 30-1-2010. Hence this civil revision.
3. It is contended by learned counsel for the petitioners that both the Courts below have virtually decided the whole case without recording of evidence of the petitioners, which is against law.
Adverting to section 20 of Canal and Drainage Act, 1873, learned counsel for the petitioners has contended that the Divisional Canal Officer (respondent No,3) was to conduct inquiries at the spot and the same have not been conducted by the Divisional Canal Officer, as provided in section 20 of the said Act and thereafter, no step or course had been adopted as to whether the land was being taken through mutual agreement or through acquisition, as such, the arbitrary passing of the order by the Superintendent Canal Officer (respondent No,2) without adverting and adopting the procedure laid down in section 20 of the said Act is not in accordance with law and is illegal, arbitrary and contrary to the provisions of law and the same can be challenged before the Civil Court. It is further contended that the record shows that no notice was ever given to the concerned land-owners and the same has also been observed by the predecessor of Superintending Canal Officer (respondent No,2) while earlier returning the file to the Divisional Canal Officer (respondent No,3). It is vehemently urged that the earlier order passed by the Divisional Canal Officer dated 27- 7-1998 was incomplete as he had failed to hold as to whose land the link water course shall pass and how that will be aligned and constructed and for that the consent of the land-owners was to be sought and in the absence of the same, acquisition proceedings were to be ordered, as such, the Divisional Canal Officer (respondent No,3) had failed to decide the matter, hence the same is against the law and in view of the same, the predecessor of Superintendent Canal Officer (respondent No,2) instead of confirming the same, had returned the same with the above observations. It is further contended that both the Courts below have also failed to take into consideration that as per the earlier arrangement, all the land-owners have been peacefully receiving water supply from the outlet which was sought to be changed for about 65 yeas and there was nothing on the record to show that the water supply to any land-owner was deficient in any manner. It is further contended that the petitioners would suffer irreparable loss on account of the fact that in the proposed position irrigation of squares Nos.55,56,58,59 and 60 will suffer badly as the water will have to run against the natural slope of country, as such, substantial loss is likely to be caused to the petitioneRs, In support of his contentions, learned counsel for the petitioners has placed reliance upon MRs, Shahzadi Babar v. Hina Housing Project (Pvt.) Ltd. And others (1994 CLC 1601), Asif Khan Shamim v. The Government of Sindh and others (1996 CLC 456) and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another (PLD 1970 SC 180).
4. On the other hand, learned counsel for respondents Nos. 6 to 8 have fully supported the impugned orders passed by the learned trial Court as well as the learned appellate Court and contended that the arguments and points raised by learned counsel for the petitioners can only be decided after recording of evidence, as such, it is a settled law that in such cases, ad interim injunction cannot be granted. It is further contended that under section 68 of the Canal Drainage Act, 1873, there is no concept of interim relief in such-like cases and in this regard, reliance is placed upon Ghazanfar Khan and others v. Taj Muhammad and others (1970 SCMR 139), Badar Din v. Bahadur Ali and others (PLD 1968 Lahore 573), Muhammad Saeed and others v. Fateh Muhammad and others (PLD 1962 (W.P.) Lahore 317), Khan Muhammad and another v. Munawar Hussain and another (2002 CLC 333) and Patras Masih v. Province of Punjab and others (2008 MLD 106). It is further contended that there is no violation of section 20 of the Canal and Drainage Act, 1873, as the order had been passed in presence of the parties.
5. The learned Additional Advocate-General has stated that after a period of 11 years, No Objection Certificate has been obtained from the Pakistan Railway and construction of water course crossing and water course from the land owned by the Pakistan Railway is being done, the level of the land is almost the same and the work on the Moga is in progress, however, it appears that proper notices have not been served upon all the concerned persons.
6. Arguments pro and contra have; been heard and the impugned orders as well as material placed on the file have been perused.
7. It is admitted by the learned Additional Advocate-General that proper notices have not been served upon all the concerned persons before the passing of the order of the Divisional Canal Officer (respondent No,3) and Superintending Canal Officer (respondent No,2), as such, the principle of aud Alteram partem has not been applied which has caused prejudice to the petitioners and others, Moreover, there appears to be a violation of section 20 of the Canal and Drainage Act, 1873, envisaging a procedure to be adopted by the Division Canal Officer (respondent No,3). In view of the same, the petitioners have made an arguable case and have also shown sufficient cause to suffer irreparable loss and as such, balance of convenience lies in favour of the petitioners and in this respect, reliance is placed upon Patras Masih v. Province of Punjab and others (2008 MLD 106), wherein it was held that "contention of plaintiffs was that they had not received any notice as required under section 20 of Canal and Drainage Act, 1873, either before passing of impugned order or at the time of confirmation thereof. Plaintiffs, admittedly were not served any notice before the passing of impugned order and when confirmatory order laws passed. Application filed by plaintiffs under O.XXXIX, Rules 1 and 2 C.P.C. Was allowed and orders passed by Courts below, were set aside".
' In view of the above perspective, this civil revision is accepted and the impugned order, dated 10- 11-2009 passed by the learned Civil Judge, Pakpattan as well as the order, dated 30-1-2010 passed by the learned District Judge, Pakpattan, are set aside and as a result thereof, the application filed by the petitioners for the grant of temporary injunction is also accepted and the status quo shall be maintained till the final disposal of the suit filed by the petitioners for declaration and the suit of the petitioners shall be decided by the learned trial Court within a period of four months.