This is a regular second appeal arising out of a suit brought by the respondents against the appellant herein and some others, challenging the validity of an order dated the 25th February 1957, passed by the Divisional Canal Officer, Lower Gogera Division, Lyallpur, under section 68 of the Canal and Drainage Act, 1873, sanctioning a panel warabandi between the co-sharers on the outlet No, 4575/L of Rajbah Rasina, Chak No, 136 G. B., Tehsil Sumundari, District Lyallpur.
2. The brief facts are that the co-sharers on this outlet in question used to irrigate their lands under a mutual arrangement for a private warabandi in vogue between them. In the year 1955 Ghulam Din appellant applied to the Divisional Canal Officer for permission to shift the nakah from Killa No, 25 to Killa No, 5 of square No, 32 in the interest of the better irrigation of his land. The application was, however, rejected by the learned Divisional Canal Officer by means of his order dated the 2nd of August 1955 (Exh. P. 1) and the appellant continued to irrigate his land from Killa No, 25 as before.
But, towards the end of 1956 one Abdullah son of Nizam Din one of the co-sharers applied to the Divisional Canal Officer for fixing a panel warabandi for this outlet. Accordingly, after the necessary enquiry, on 25-2-57 the Divisional Canal Officer passed an order (Exh. P. 5) sanctioning the warabandi between all the co-sharers and thereby he also his approval to a change in the nakah from Killa No, 25 to Killa No, 5 of square No, 32 for the irrigation of the land belonging to the appellant. Aggrieved against this change, the four respondents in a representative capacity, filed the suit against Ghulam Nabi and some others, in their representative capacity in the Civil Court, Lyallpur, challenging the validity of the order passed by the Divisional Canal Officer. The plaintiffs have inter alia alleged in the plaint that the impugned warabandi was sanctioned without any notice served on all the interested shareholders of the outlet in question. Moreover, according to them, already the change in the nakah for irrigation of their land was rejected in the year 1955 and the order had become final. Thereafter the Divisional Canal Officer was not competent and had no jurisdiction and authority to sanction this change in the nakah afresh. The defendants in their joint written statement controverted all these allegations and contested the suit.
3. After recording the evidence, the learned Civil Judge, Lyallpur refused to set aside the warabandi as a whole lawfully sanctioned on the 25th of February 1957. He was, however, of the opinion that the previous order dated the 2nd of August 1955 (Exh. P. 1) rejecting the application of Ghulam Nabi, defendant No, 1 appellant, for the transfer of the nakah from Killa No, 25 to Killa No, 5 of square No, 32 for the irrigation of his land had become final and conclusive between the parties and was not liable to be changed afterwards at the instance of the Divisional Canal Officer, on 25th of February 1957, on the same facts and circumstances. To this extent, therefore, the learned Civil Judge partly decreed the suit of the plaintiff-respondents, on the 3rd of December 1958, and issued an injunction against the defendants restraining them from irrigating their land comprised in square No, 32 from the new nakah at Killa No,
5. The rest of the suit was, however, dismissed. Ghulam Nabi, defendant No, 1 appellant alone went up in appeal against the decree, which was rejected by the learned Additional District Judge Lyallpur, on the 14th of May 1959, affirming the decision of the trial Court. This is a regular second appeal against the decree to this Court by the aggrieved defendant No, 1 appellant.
4. I have heard the learned counsel for the parties appearing before me in this appeal. In the year 1955 Ghulam Nabi appellant had applied to the Divisional Canal Officer presumably under section 68 of the Canal and Drainage Act for permission to transfer the nakah for his land from Killa No, 25 to Killa No, 5 of square No,
32. The order dated the 2nd of August 1955 (Exh. P. 1) shows that this application was opposed by Abdul Ghani respondent, an owner of square No,
45. After checking the spot levels, the Divisional Canal Officer at the time was convinced that his land was being satisfactorily irrigated from its source at Killa No, 25 and that the change of the nakah to Killa No, 5 would mean that the respondent shall have to bring the water for his land from a distance resulting in serious prejudice to him. He, therefore, declined to sanction the change and dismissed his application. But, afterwards, on the 25th of February 1957, the Divisional Canal Officer sanctioned the warabandi between the co-sharers on this outlet in supersession of the pre- existing private warabandi for the irrigation of their lands. In the concluding portion of his order he also sanctioned a new outlet in Killa No, 5 for the irrigation of the land belonging to the appellant comprised in square No, 32 without any discussion. The dispute in this appeal is now confined to this transfer of the nakah from Killa No, 25 by the Divisional Canal Officer without assigning any reason.
5. In my considered opinion the previous order dated 2nd of August 1955 (Exh. P. 1) passed by the Divisional Canal Officer was final and binding between the parties and was not liable to be set aside or reversed afterwards by the Canal Officer concerned without assigning any reason and in the absence of any new facts and circumstances justifying the change. But in this connection the learned counsel for the appellant has laid a very great emphasis on the opening words in section 68 of the Canal and Drainage Act (VIII of 1873). This section lays down that: "whenever a difference arises between two or more persons" in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a watercourse, any such person may apply in writing to the Divisional Canal Officer stating the matter in dispute. Such officer shall, thereupon, give notice to the other persons interested and after the necessary inquiry he shall pass his order thereon. In interpreting this section the learned counsel has stressed before me that this section deals with disputes between persons having share in a watercourse, as to "their mutual rights and liabilities" and all that the Canal Officer is empowered to do is to affect a temporary settlement of the dispute which shall hold good until the parties have obtained a decree from the ordinary civil Court defining their inter se rights on a permanent basis. So it was contended before me that in the absence of a decree of a competent Court, it was open to a shareholder to move the Canal.
Officer whenever a difference arises between two or more persons concerning the use and distribution of the canal water. But this argument advanced by the learned counsel is not tenable and does not take due notice of the second part of section 68 of the Act, reproduced below:-- "Section 68.--Such order shall be final as to the use or distribution of water for the crop sowing or growing at the time when such order is made, and shall thereafter remain in force until set aside by the decree of a civil Court."
This provision is divided into two parts. The first part deals with the use or distribution of water for any crops sown or growing at the time. The order of the Canal Officer in this respect is final and read with section 67 of the Act the civil Court has no jurisdiction to pass any order as to the supply of canal water to any crop sown or growing at the time of such order. The second part of the section reproduced above further lays down that the order passed by the Canal Officer shall thereafter remain in force until set aside by the decree of a civil Court. In other words, so far as the Canal Officer is concerned, he cannot vary or alter his order afterwards and is final qua him.
6. The scope and effect of an order made by a Divisional Canal Officer under this section was examined by a Division Bench of the Chief Court, Punjab in Nawab Ghulam Mahboob Subhani v.
Prem Narayan and the Court observed as under :- "In my opinion, the above provision can only mean that the order is binding unless and until set aside by a decree of a Court in a suit brought with the express purpose of challenging the validity of the order, and such suit must, I think, be instituted within one year of the date of the order, under Article 14 of the Second Schedule of the Limitation Act otherwise the adjudication of the Canal Officer or Collector (as the case may be) will settle finally the matter in dispute between the parties which was dealt with under the section and will not be open to question directly or indirectly in a civil Court. It follows then that in my opinion the present suit cannot be maintained, so far as it relates to matters adjudicated upon by the Canal Officer under section 68 of Act (VIII of 1873), and covered by his order of the 15th of May 1888."
But the learned counsel for the appellant has cited before me Fazal Muhammad and others v.
Ganda Singh and others in support of his contention. In this case relying on the opening words of section 68 the learned Single Judge has observed that--"it seems to me that these words imply that the Divisional Canal Officer has jurisdiction to decide each difference as it arises and that his decision can still be given, although a warabandi was already in existence and had been fixed by him at some former time. If any other interpretation were possible or intended, it would never be possible to allow for any change in the conditions of a village". But on a careful examination, I find that in that case the District Judge had pointed out that the second warabandi had to be fixed because of certain changes which had occurred in the meanwhile. Moreover, I find that this was no authority on the interpretation of the second part of section 68 of the Act, reproduced above, which was not even noticed by the learned Single Judge in the case under discussion.
7. Section 68 of the Act was discussed in some detail by B. Z. Kaikaus, J. (as he then was) in Shahabuddin v. Muhammad Sharif and others. He observed as under :- "A reference to section 68 would show that the Divisional Canal Officer has jurisdiction to pass an order relating to the use of distribution of water whenever a difference arises between co-sharers in a particular outlet. That is the whole requirement of the section. The fact that a warabandi exists does not debar the Divisional Canal Officer from acting. In fact, if such interpretation were put on section 68, it would become almost useless for warabandis to 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 that1 2 3 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."
But, at the same time, the learned Judge in para. 5 of his judgment has added as under :-- "Another point taken in this connection is that previously too an application had been put in by Shahab-ud-Din appellant on which application it had been ordered on the 18th of June 1943 (vide Exh. P. 4) that the appellant shall get water from both nakahs. It is contended that the same dispute as there is between the parties now, was before them Divisional Canal Officer at that time and he having once passed an order which has not been challenged before any civil Court, that order is final and binding. The legal proposition involved in this argument is correct, but the argument is otherwise wholly without force."
On facts after having gone through the record, the learned Single Judge in that case was satisfied that it was not the same dispute but a different one which was settled by the Divisional Canal Officer having jurisdiction in the matter.
4. I am in respectful agreement with the dictum reproduced above. After having fully considered the legal position, I am of the opinion that in this case the Divisional Canal Officer was not justified in reversing the order dated 2nd of August 1955 (Exh. P. 1) without assigning any reason and without any discussion. This appeal has, therefore, no force and is dismissed with costs. 25 P R 1893 AIR 1929 Lah. 260 PLD 1958 Lah. 333