' This constitutional petition, moved under Article 9 of the Provisional Constitution Order, 1981 has been invoked to declare the order, dated 16th July, 1981 passed by the Superintending Canal Officer, Bahawalnagar to be without lawful authority and of no legal effect.
2. The relevant facts of this case in substance are that both the parties own land in Chak No, 196/4- L, Tehsil Fort Abbas District Bahawalnagar. Bashir Ahmad, the petitioner irrigates his land from outlet No, 5/4-L, Hakra Branch whereas the respondents receive wait from outlet No, 3/4-L of the same Branch. The respondents applied to the Divisional Canal Officer for the change of their existing Chakbandi of outlet No, 3/4-L to the proposed Chakbandi of outlet No, 5/4-L for better and proper irrigation of their land. Despite the favourable reports made by the Ziledar and the Sub- Divisional Canal Officer, the Divisional Canal Officer rejected the application of the respondents on 30th March, 1978 and sent the papers to the Superintending Canal Officer as envisaged under section 20 of the Canal and Drainage Act, 1873 (which shall hereinafter be referred to as the Act).
3. The Superintending Canal Officer issued notices to both the parties and reversed the order of the Divisional Canal Officer, dated 30th March, 1978. The said order of the Superintending Canal Officer is, dated 3rd June, 1978.
4. The petitioner sought the assistance of the learned Senior Civil Judge, Bahawalnagar for the annulment of the said order. He sought a temporary injunction and the matter came up to this Court. My learned brother Mr. Justice Manzoor Hussain Sial, J., on 23rd May, 1981, with the concurrence of the parties, directed that the case be reheard by the Superintending Canal Officer and he should afford an opportunity to both the parties of being heard. The Superintending Canal Officer heard the parties and repeated his verdict in the impugned order.
5. The impugned order has been assailed on the following rounds :-
(i) That no cogent reasons for the acceptance of the objections of the respondents have been recorded in the impugned order.
(ii) That the learned counsel for the petitioner was not heard on the date of the final arguments.
(iii) That the Superintending Canal Officer was not competent to reverse the order of the Divisional Canal Officer but was only authorised to confirm or modify the same.
6. As regards point No, 1, the learned counsel for the petitioner has cited Messrs Aziz Tanneries Ltd. v.
Superintending Engineer, Lower Bari Doab, Canal Circle, Montgomery and another (1). In this ruling, it has been pointed out that the Superintending Canal Officer should give cogent reasons for making an order under section 20 of the Act. In the said precedent, the Superintending Canal Officer had passed an order after recording laconic lines that he had studied the case thoroughly and the decision of the Canal Officer Montgomery had also been perused. No reasons of his own for passing the order were given. Respondent No, 3 in the impugned order had stated that the land of the respondents was not receiving proper irrigation from the existing source and the further scrutiny of the case revealed that the proposed source was much better than the existing source so far as the irrigation of Square No, 57 was concerned. It may be noted that Square No, 57 belongs to the respondents. He has also remarked that there is no problem in getting the new watercourse for Square No, 57 through the proposed source as the owners of the land through which the watercourse is to pass have consented to surrender their lands in favour of the respondents. The Superintending Canal Officer has, given cogent reasons in the impugned order. Point No, 1, therefore, fails.
7. As regards the point No, 2, it has been represented that the petitioner had engaged Mr. Manzoor Ahmad Mohal Advocate as a counsel who could not appear on the final date of hearing and he was not heard by the Superintending Canal Officer. It is noteworthy that the impugned order embodies that the case was argued at length by both the learned counsel for the parties and the hearing was adjourned to 4th July, 1981. It is not necessary that the parties must be represented by their counsel. Mr. Iejaz Ahmad Ansari Advocate, the learned counsel for the petitioner has rather withdrawn this objection which otherwise lacks substance.
8. Point No, 3 has very strenuously been argued on behalf of Bashir Ahmad, the petitioner. It may be pointed out at the very outset that this objection does not find a mention in the original writ petition filed by the petitioner. This point was added by seeking an amendment under Order VI, rule 17, C. P.
C.
9. Section 20 of the Act reads as under :- "Whenever application is made to a Divisional Canal Officer for a supply of water from a canal through an existing watercourse or change of source of water supply of any land and he considers it expedient, he shall give notice to all persons interested including the land-owners through whose land any link watercourse is to pass to show cause on a day, not less than fourteen days from the date of such notice, why the said supply should not be so conveyed, or the source of supply be changed ; and after making enquiry on such, the Divisional Canal Officer shall determine, whether and on what conditions the said supply shall be conveyed through such watercourse or that the source of water supply shall be changed or the link watercourse be aligned and constructed. After the expiry of thirty days of the announcement of the decision. Of the Divisional Canal Officer, if no objection is
(1) PLD 1972 Lah. 517 ' received and after giving due opportunity of hearing if an objection is received the Superintending Canal Officer may confirm or modify that decision, The decision of the Superintending Canal Officer shall be binding on the applicant, the persons responsible for the maintenance of the said watercourse, all the persons affected by change of source of water supply, and the land-owners through whose land the link watercourse shall pass. Such applicant shall not be entitled to use the said watercourse until he has paid the expenses of alteration of such watercourse necessary in order to his being supplied through it, and also such share of the first cost of such watercourse as the Divisional Superintending Canal Officer may determine. The applicant shall not be entitled to use the link watercourse, if any, until--
(a) he has paid to the land-owner the compensation for the land occupied by such link watercourse in whatever shape if it is determined through mutual agreement or
(b) possession of land for the said link watercourse has been acquired under the provisions of this Act. Such applicant shall also be liable for his share of cost of maintenance of the watercourse as long as he uses it."
9. It may be seen that in section 20 of the Act, the Divisional Canal Officer is to issue a show-cause notice to the interested land-owners under section 20 why the supply of water should not be so conveyed, or the source of supply be not changed. He is to determine the conditions of the supply of water. In both the eventualities, he is to make a decision. A decision may be defined as a 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. Section 20 of the Act nowhere envisages that the order of the Divisional Canal Officer is final when he chooses to reject an application moved under section 20 of the Act. His decision, either way, is subject to the scrutiny of the Superintending Canal Officer which may be confirmed or modified.
10. Section 20 of the Act is not happily worded. It does not embody the word reverse alongwith confirm or modify. But in Black's Law C Dictionary the word 'modify' means to alter ; a change : an alteration or amendment which introduces new elements into the details, or cancels') some of them, but leaves the general purpose and effect of the subject-matter intact. Alteration in the said Dictionary means variation ; changing : making different. A change of a thing from one form or state to another ; making a thing different from what it was without destroying its identity.
11. In the 20th Century Practical Dictionary the word 'modify' means change (to make suitable or less severe).
12. It shows that the word modify connotes that the order can be altered, changed or varied or it can be made suitable or less severe. In this manner, the Superintending Canal Officer is competent to vary or alter an order by modifying the same.
' The impugned order is not open to any legitimate exception. 1, therefore, dismiss this writ petition with costs.