JUDGMENT MIAN SHAHID IQBAL, J.-This revision petition is directed against the judgment and decree dated 4-2-2003 whereby appeal filed by the respondents - was accepted with the result that suit decreed in favour of petitioner No.2 was dismissed.
2. Brief facts of the case are that petitioners impugned notification dated 28-2-1988 through a suit for declaration filed on 2-4-1988 that impugned notification issued by respondent No.3 without prior notice before enhancing quantum of water supply from existing Outlet No .53800-L, Jakkar distributor lower Gugera. Respondents were served in the suit, only respondent No.1 filed written statement in which averments of the plaint were denied, it was alleged that it was not mandatory to issue notice before issuing the said notification dated 28-2-1988. The reasons for non-issuance of notice was that as the water was sanctioned to respondent No.1 for a different purpose and was from extra. Water, as such no locus standi occasioned to the present petitioners, therefore, issuance of notice in that regard was not called for. Hence, notification issued by respondent No.3 was proper as such would hold the field. No written statements were filed by respondents Nos. 2 and 3.
3. From divergent pleadings of the parties 3 issues were framed by the learned trial court. Both the parties led their evidence on the relevant issues and the learned trial court vide its judgment dated 31-7-2001 decreed the suit of petitioners thereby holding that since it was mandatory on behalf of respondent No.3 to issue notice, anything short of that was illegal. Against the judgment and decree dated 31-7-2001 respondent No.1 filed an appeal which was accepted vide judgment and decree dated 4-2-2003 resulting in dismissal of suit filed by petitioners. Being aggrieved of the judgment and decree dated 4-2-2003 petitioners have filed instant revision.
4. Learned counsel for petitioners submits that only legal point affecting, route of case is that whether under section 20 of Canal and Drainage Act 1873, it was mandatory upon respondent No.3 to issue notice. Learned counsel in support of his contention relied upon 1994 CLC 921, 2002 SCM R 1466, 1993 SCM R 1960, 2003 YLR 1445, 2006 M LD 1349, 2007 YLR A 2179, 2003 YLR 1231 and 2007 YLR 1485. Learned counsel for petitioners while arguing the case submits that under section 20(a) of the Canal and Drainage Act, 1873, it is mandatory upon respondent No.3 to have issued notice before allowing water through that canal and in absence of that any order passed without issuance of notice is illegal and cannot hold the field. Learned ' counsel further submits that no notice has been issued nor any notice during the proceedings before the learned trial Court has been placed on record, as such there is no denial to the fact regarding non-issuance of notice as well as any proceedings before issuing of notice is illegal and unlawful.
5. Learned counsel .For petitioners further submits that it is even not the case of respondent No.3 that he did issue notice, hence non-issuance of notice is not denied as per record, therefore, in absence of that learned lower appellate court has wrongly dismissed the suit of petitioners; further submits that principle of audi alteram parten is applicable to the instant notification. Learned counsel further submits that in view of judgment referred to facts and law applicable to the case in hand is the same, hence judgment and decree passed by learned lower appellate court be set aside and judgment and decree passed by learned trial court be restored.
6. Learned counsel for petitioners further submits that by virtue of C.P. No.926-L of 2006 Hon'ble Supreme Court of Pakistan has not dilated on the point that whether making or non-making of Abdul Hameed as party was necessary or not, rather C.P. Was only accepted and case was remanded back to this Court to decide the matter afresh; in this revision the objection taken by respondent No.1 would not hold the field. Learned counsel further submits that as the impugned notification was immediately challenged within days after issuance question of attaining finality of said notification would not arise. Learned counsel further submits that instant suit was dismissed being infructuous on 16-3-1999 against which present revision petitioner filed an appeal which was accepted on 18-11-1999, as such suit was restored on its original number.
7. On the other hand, learned counsel for respondent No.1 assisted by learned Assistant Advocate- General submits that Abdul Hameed petitioner No.1 was deleted during the proceedings before the learned trail court vide order dated 24-4-2000; further submits that deleting of name of petitioner No.1 was processed through statement recorded by local commission appointed by the learned trial court before whom he submitted that no loss has been occasioned to him nor he has filed instant suit. The learned lower appellate court on 4-2-2003 thereby accepting the appeal of respondent No.1 dismissed the suit of present petitioners. Against which present revision petition was filed which was accepted by Mr. Justice Syed Asghar Haider, J, (as he then was) on 19-4-2006 with the result that order of the learned lower appellate court was set aside and on the basis of said revisional order, judgment and decree passed by learned trial court was restored. Against the order passed in Civil Revision respondent No.1 filed Civil Petition No.926-L/06 which was accepted on 24-1-2007 with the result that revision petition was once again directed to re-hear afresh in accordance with law.
8. Learned counsel for respondents further submits that in spite of order passed by Hon'ble Supreme Court of Pakistan, petitioners have still made the plaintiff No.1 as petitioner No.2, hence petition to his extent is bad for misjoinder of parties, not maintainable and is liable to be dismissed.
Reference is made to 1987 SCM R 769; further submits that section 20 of Canal and Drainage Act 1873 is not applicable as respondent No.1 was provided extra water from the canal source and not from the water course. It is further submitted that bare reading of section 20 of Canal and Drainage Act, 1873, says that issuance of notice is not mandatory as it does not effect penal action; further submits that application of section 20 of Canal and Drainage Act, 1873, even other were cannot be made as petitioners are not aggrieved party as their water has not been reduced. On Court's query it is not denied by learned counsel for respondents that petitioners also irrigate their lands from the said water course. It is not disputed that petitioners do not irrigate their lands from the said water course. Learned counsel submits that principle of audi alteram parten not available. To the present petitioners as they are not aggrieved persons; further submits that impugned notification has since attained finality as being implemented already from the date of issuance as the same was not called into question. It is further submitted that since earlier notification dated 28-2-1988 was withdrawn and subsequent notice was issued on 10-3-1999 has not been challenged as such suit itself become infructuous.
9. It is further submitted that in spite of fact that suit was dismissed as being infructuous but since it was restored as such respondents were forced to, file appeal. Lastly, it is argued that in view of law laid down in NLR 1983 Revenue 98, that competent authority sanctioning extra water in these circumstances notice under section 20 of Canal and Drainage Act, 1873, is not necessary nor mandatory; further submits that P.W.1. In his cross-examination has admitted that this was additional water granted to respondent No.1. Learned A.A.-G has nit been able to explain as to how and from where additional water has been granted to respondent No. 1 .
10. I have heard learned counsel for the parties and with their able assistance have gone through the record.
11. The only point which is to be attended in this civil revision is that as to whether a notice under section 20(a) of the Canal and Drainage Act, 1873 was conditioned precedent for allowing any addition in the canal water through which not only the present, respondents were beneficiary but along with them, the petitioners as well as the other persons whose land was being irrigated through this canal was to serve with the said notice and thereafter the Divisional Canal Officer ought to have proceeded. In the present case only written statement was field by present respondent No.1, the remaining respondents did not file written statement, with the result that their stance could not be brought on record but even then the evidence which forms part of the present record do not deny, rather it is not the case of both the parties that notice was sent or not. It is admitted in evidence that before issuance of impugned notification dated 28-2-1988 (ExH.P1) the concerned Divisional Canal Officer did not issue notice not only to petitioners but also to other persons whose land was being irrigated from the said canal.
12. There is no cavil to the proposition that under section 20(a) of the Canal and Drainage Act, 1873 it is obligatory upon the Divisional Canal Officer to issue notice to the parties who ultimately are to be affected by any change whether by enhancing or by reduction of water in the said canal. This observation is further fortified from the law settled in 2002 SCM R 1466, the relevant portion of which is re-produced as under:-- " ....It transpired that no notice was issued to all the shareholders of the Moga. Such order having been passed in absence of shareholders was violative of principle of natural justice and thus was not sustainable in law."
13. Not only this another recent judgment 2003 YLR 1445 also confirms that issuance of notice by Divisional Canal Officer to the affected persons is not only necessary under section 20(a) of the Canal and Drainage Act, 1873 but even otherwise in order to extend proper justice if a notice is not issued to the affectes, it would be violation of principle of natural justice. The relevant portion of the said judgment is reproduced as under:-- " ....Petitioner' s assertion stood proved from official record and stance taken by respondent....
Petitioner had not been issued any notice and he had been condemned unheard by Department....
Forcing petitioner to file suit before Civil Court, would be a futile exercise in view of such facts and circumstances .Impugned order being contrary to law and principles of natural justice, was not sustainable.... High Court remitted matter to Divisional Canal Officer for deciding same afresh in accordance with law."
14. As far as the judgments referred to by the learned counsel for respondents that it is not obligatory upon the Divisional Canal Officer to issue notice before deciding the matter, they are distinguishable on the ground that in both judgments the matter in issue was regarding issuance of temporary injunction in absence of the notice, but in the present case the suit has been finally decided, therefore, the said judgments are distinguishable from the facts and circumstances of the present case.
15. In view of above observations, I would hold that the learned lower appellate court did not attend to this question while deciding the case in hand and only based its decision while observing regarding personal knowledge of P.W.1 which could not have been enough to reverse the findings of the trial court.
16. With these observations the instant civil revision is 'accepted, judgment and decree passed by lower appellate court is set aside, with the result that the judgment and decree of the trial court is restored. This matter is sent back to. Divisional Canal Officer who shall after issuance of notice to all the parties concerned, hear them and thereafter decide the matter after taking into consideration the contentions of the parties and record.