MUHAMMAD YOUNIS THAHEEM, J.---Through the instant Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, the petitioner Saif Ullah Khan seeks cancellation of orders dated 12.11.2009 passed by the learned Senior . Member Board of Revenue Khyber Pakhtunkhwa, then NWFP, Peshawar by upholding the order dated 29.05.2009 of Additional Commissioner, Bannu.
2. Brief facts of the case are that petitioner filed a suit No,5 under section 43 of the Punjab Minor Canals Act, 1905 in the year 2005, before the Revenue Court of Deputy District Officer (Judicial)
Bannu, hereinafter called as DDO(J), which was decreed by the Trial Court in favour of petitioner on 31,01,2009. Respondents No, 1 to 5 feeling aggrieved from the judgment and decree of the Revenue Officer of DDO (J) preferred an Appeal before the Additional Commissioner, Bannu (Respondent No,7), who accepted the Appeal and set aside the judgment and decree of the Trial Court on 29.05.2009 and dismissed the suit. The petitioner aggrieved from the order of Appellate Court of Additional Commissioner, filed a Revision Petition before the Senior Member Board of Revenue KPK, Peshawar (respondent No,6), who dismissed the revision petition on 12/11/2009 and maintained the judgment and decree dated 29/05/2009 of appellate Court of Additional Commissioner, Bannu (Respondent No,7), hence this Writ petition.
3. Arguments heard and available record appended with the petition perused.
4. Perusal of the record reveals that the petitioner instituted a suit under section 43 of the Punjab Minor Canals Act, 1905 before the Court of Deputy District Officer (Judicial) (DDOJ) Bannu, seeking decree as prayed for.
Part"A" For declaration to the effect that petitioner/Plaintiff is owner of 1/6. Share of water rights tagged to vial Sangari, Khula Sher Khan, Wanda Bara Khan and defendants have no concerned, whatsoever, with the ownership of his owned water rights and; Part "B" For permanent injunction against defendants to not interfere into the use of his owned water rights.
5. The petitioner/plaintiff sought relief by way of decree on the basis of decree dated 07.12.1944 in case No,8 under section 43 of the Punjab Minor Canals Act, titled Malang Khan v. Malak Khan and 46 others, decided.By District Collector, Bannu.
6. The defendants submitted their written statement denying any use of water rights belonging to petitioner (Plaintiffs) and raised plea that decree passed in favour of father of petitioner was not against them or their predecessor and water under their use is of their ownership. They further pleaded that they have not utilized suit water.
7. Before we proceed to discuss the arguments addressed at the bar, it is necessary to refer section 43 of the Punjab Minor Canals Act, 1905, which enumerates as under:
43. Settlement of Disputes.---(1) Save as provided in the preceding section, whenever a dispute arises between two or more persons in regard to their mutual rights and liabilities in respect of the ownership, construction, use or maintenance of a canal or watercourse, and any such person applies in writing to the Collector stating the matter in dispute, the Collector shall give notice to the other person or persons interested that on a day to be named in such notice or any such day to which the proceedings may be adjourned, he will proceed to inquire into the matter in dispute.
(2) Upon the day so named or any such subsequent day as aforesaid the collector shall proceed to hear and determine the dispute in the following manner, that is to say-
(a) If the dispute relates to the ownership of a canal or the mutual rights of owners in the use of the water of such canal or the construction or maintenance of a canal or the payment of any share of the costs of such construction or maintenance of the distribution of the supply of water from a canal, the Collector shall proceed as a Revenue Court under the provisions of the Punjab Tenancy Act, 1887 (XVI of 1887), and the provision of that Act regarding appeals, revisions and reviews shall be applicable. (underline applied for emphasis)
(b) If the dispute relates to a watercourse the Collector shall hear and determine the case as a revenue officer, and shall make such order thereon as to him seems fit, and such order shall, unless set aside on appeal to the Commissioner, be conclusive as to the use or distribution of water for any crop sown or growing at the date of such order. The order of the Commissioner on appeal shall in every such case be final."
Along with this section further procedure and manner has been provided in the Punjab Tenancy Act, 1887, which is also applicable to the Khyber Pakhtunkhwa. Section 77 (3) third group, clause '0', as mentioned in section 43(2)(a) is reproduced for convenience as under: S.77 Revenue Courts and suits cognizable by them: Procedure where revenue matter is raised in a civil Court.--
(1) When a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in subsection (3) or with respect to any appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court.
(2)...............
(3) The following suits shall be instituted in and heard and determined by Revenue Courts, and no other Court shall take cognizance of any such dispute or matter with respect to which any suit might be instituted:- Provided that:- (1).................
(2) on the plaint being presented to the Collector, the Collector shall proceed to hear and determine the suit where the value thereof, exceeds Rupees ten thousand or the matter involved is of the nature mentioned in section 77 (3) First Gtoup, of the Punjab Tenancy Act, 1887 and in other case may send the suit to an Assistant Collector of the 1st Grade for decision.
First Group........
Second Group ......
Third Group ....
(o) suits by a landowner to recover moneys claimed as sue for the enjoyment of rights in or over land or in water including rights of irrigation, rights over fisheries, rights of pasturage and forest rights; (underline are for emphasis)
8. We have gone through the entire record carefully and considered the arguments advanced by the learned counsel for the parties. It reveals that the present suit under section 43 of the Punjab Minor Canals Act, 1905 was instituted before Revenue Officer with designation Deputy District Officer (Judicial), Bannu and not before the competent court having jurisdiction i.e, District Collector, Bannu under section 43 read with section 77 of the Tenancy Act, 1887, so same court have no jurisdiction to try the suit under section 43 relating dispute about water rights. All the fora below have committed grave illegality and acted without lawful authority by entertaining adjudicating the suit. The plaintiff/petitioner was legally required to institute the same suit under section 43 before the District Collector as Revenue Court having jurisdiction as statute had delegated this jurisdiction to the said District Collector as Revenue Court only, while the plaintiff instituted this suit under section 43 with the DDO(J), Bannu, who in terms of Section 43 of ibid Act Is not a Revenue Court and had assumed jurisdiction, in violation of the ibid law, so all the findings given by him and further fora higher in Revenue hierarchy to it are ultra vires, null and void and having no legal effects.##T###
9. For what has been discussed above, it is held that the Court of . Deputy District Officer (Judicial) was not competent to entertain and try the suit under section 43 ibid and was obliged to return the same suit for filing it before the court having jurisdiction under section 43 of the Minor Canals Act and read with section 77 of the Tenancy Act.
10. Though the appellate Court (Respondent No.7) and Senior Member Board of Revenue (respondent No,6) have dismissed the suit from different aspect mentioned therein but have overlooked this legal aspect regarding the question of jurisdiction as discussed above. The concurrent findings of revenue hierarchy if not based on proper appreciation of evidence or against the law this Court has jurisdiction to interfere with Reliance in this respect is placed on case titled "Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others" (2014 SCM R 914), wherein the honorable Supreme Court held: "The argument that when all the fora functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the fora functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law, therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise, of constitutional jurisdiction of the High Court."
So without going into the merits of the case; this petition is decided upon the touchstone of lack jurisdiction which is clearly vested to the District Collector under section 43.
11. In view of above observations, this writ petition is disposed of, however; the petitioner is at liberty to file a fresh suit if feels aggrieved before the proper competent court of District Collector under section 43 read with Section 77 of the Tenancy Act.