1. ' The appellant Umar owned some agricultural lands in Deh Soomro, Taluka Shandadpur, District Sanghar, which were fed by water course No,13-L Lundo. He purchased another piece of land in the Deh which was fed by another water course No,8-R Shandadpur Distributory. The appellant applied to the canal authority to change the water supply to his new land from 8-R Shandadpur to 13-L Lundo on which the Superintending Engineer passed the following order:- "The request of the applicant for transfer of his lands measuring 57-0 (Fifty Seven) Acres from water course No,8-R Ex-Shahpur Minor (Dad-Division) to water course 13-L Ex-Lundo distributor Hala Division is hereby approved, subject to complete observance of proceedings under section 91 of the Irrigation Act. The change shall not be effected until all the Khatedars of water course 13-L Ex- Lundo distributory gave their genuine consent."
2. ' The appellant alleged that he received water from 13-L Lundo as requested, but in September, 1965 without notice to him this supply was disconnected on the objections of some of the Khatedars, particularly A. Hakeem whose lands are fed from 13-L Lundo. The appellant, therefore, filed a suit for declaration and injuction in the Court of Civil Judge, First Class, Hyderabad. The respondents 1, 2 and 3 are the official respondents who took the plea that order (Exh.90) was only provisional order subject to consent of all Khatedars settled on water course 13-L and that when it was realised that some of the Khatedars did not give their consent, supply of water was suspended. Respondents Nos. 4 to 6 who are Khatedars on the land settled on 13-L Lundo contended that supply of water to the appellant's land from 13-L Lundo was in contravention of Sind Irrigation Act, hereinafter referred as the Act, and further that notices required to be sent under the provision of the Act to the concerned Khatedars have not at all been received by them. The learned trial Court held that the order suspending water supply to the appellant's lands was bad and void, but did not grant relief of injunction and held that it was open to the Canal Authorities to consider the case to cancel the appellant's water supply in accordance with the provision of law.
3. The respondents Nos. 4 to 6 challenged it in appeal which was allowed and the learned lower appellate Court held that appellant was not entitled to any decree. The appellant, therefore, challenged this judgment in this second appeal.
4. ' The second appeal was heard by Noorul Arfin J. Who by his judgment, dated 29th January, 1973 set aside the judgment and decree of the learned lower appellate Court and the case was remanded to it for determination of the following issues:-
(1) Whether notices under section 91 of the Irrigation Act, 1879, were served on respondent Abdul Hakeem and other Khatedars for the purpose of supply of water to the appellant from 13-L Lundo?
(2) Whether these Khatedars, or any of them, failed to file their objections as required by section 91.
5. If so, what is the effect?
(3) Whether any of these Khatedars have refused to give consent to supply of water to the appellant from 13-L Lundo? If so, what is the effect?
6. "The lower appellate Court should record evidence on these issues and give its finding thereon in the light of the discussion in this judgment."
7. ' The learned lower appellate Court recorded the evidence and pronounced a judgment on 24th September 1977, in which the findings on issues Nos.1 and 2 were given in the negative. Issue No,3 was answered in the affirmative. While giving this finding the lower appellate Court further observed that. "therefore, I do hereby set aside the impugned judgment and the consequential decree passed by the lower Court". The appellant has filed objection under order XLI, rule 26, C.P.C.
8. To the finding given by the learned lower appellate Court.
9. ' Mr. Mushtaq Memon the learned counsel for the appellant contended that the learned lower appellate Court has wrongly passed judgment setting aside the judgment and decree of the trial Court as such a procedure was not available to it. Mr. Jhamat Jethanand the learned counsel for the respondent conceds that the lower appellate Court ought to have given its finding on issues framed by this Court and remit it back to the High Court for further hearing. No doubt this is a mistake on the part of the learned lower appellate Court to pass judgment and aside the decree of the trial Court. I will, therefore,' set proceed to consider the matter and the finding given by it.
10. ' On issue whether notice was issued to the Khatedars, the learned counsel for the appellant has relied on the no objection (Exh.80) given by 14 Khatedars, dated 30th May, 1964 and the fact that notice was issued to Abdul Hakim and the Settlement and Rehabilitation Authority. So far the Settlement Authority is concerned there is no dispute as it was served with notice and has given no objection for the change as requested by the appellant. From the record it seems that there are 19 Khatedars. The question, therefore, arises whether notice was issued to these 19 Khatedars and whether they have given consent to the change. According to the appellant notice was issued only to Abdul Hakim and the Rehabilitation Authority while rest of the Khatedars have given their consent by document (Exh.80) which was signed by those persons on 31st May,1964. Some persons seem to have affixed their thumb-impression on 30th May,1964. From Exh.80 it is clear that it does not contain the consent of all the Khatedars. 12 persons have signed or affixed their thumb- impression. Mossa has signed on behalf of respondents Nos.5 and 6. Admittedly Abdul Hakim and Nazar Muhammad have not given any consent. In this context it would be proper to ascertain whether notice to Abdul Hakim and Nazar Muhammad was given. Hakim in his evidence has denied having received any notice. After the case was remanded the evidence of Zahooruddin was recorded. He has stated that there are 19 Khatedars of water course No,13-L and almost all except Abdul Hakim have consented to the change. He has produced no objection statement Exh.80.
11. Nazar Muhammad was one of the Khatedars holding evacuee land, therefore, Rehabilitation Department was served with a notice which gave its consent. It is Exh.81. Zahoor has stated that a notice under section 91 of the Act was sent to Abdul Hakim which was served by Imam Bux who was dead on the date when his evidence was recorded on 23rd July,1974. The objection filed by Abdul Hakim was not within time. He produced the notice served by the Department on Abdul Hakeem. This document does not bear any date. This fact is not disputed even by the appellant as in the translation filed on his behalf no date had been given.
12. ' Mr.Mushtaq Memon the learned counsel has contended that service has been established by the evidence of Hashim in which he has proved the signature of Imam Bux who had confirmed service on Abdul Hakim. Reference has also been made to Exh.84 which is an office note starting from 12th November,1964. It states that notices were served on Abdul Hakim and Nazar Muhammad, but no objection was received within 30 days and, therefore, change as per rule 91 of the Irrigation Act should be approved and it was after satisfaction that notice has been issued on 27th November,1964, the order for change was passed by the Executive Engineer. It, however, seems that on 3rd December,1963 by a letter (Exh.63) the Chief Engineer wrote to Superintending Engineer that the transfer is to be treated as 'undone' and the case closed. From this evidence the appellant has tried to establish that Abdul Hakim was served with the notice. Mr.Jhamat Jethanand the learned counsel for the respondents Nos.5 and 6 has seriously challenged the fact that notice was served on Abdul Hakim. According to him when the evidence was recorded before the trial Court Imam Bux was alive and was not examined. The date of Imam Bux's death cannot be ascertained from the record nor such a question was asked from Zahooruddin and Hashim. The evidence on record proves that Abdul Hakim was served with the notice.
13. ' As to respondents Nos.5 and 6 the learned counsel for the appellant contended that one Haji Moosa has given his consent (Exh.80) on their behalf as he has been managing their property. The learned counsel has also referred to Exh.46, a photo copy of the letter of respondent No,5 addressed to Moosa. Mr.Jhamat Jethanand the learned counsel has contended that respondents Nos.5 and 6 had never authorised Haji Moosa to give consent to this change. He further contended that firstly, the letter (Exh.46) is inadmissible in eivdence becuase it is a photo copy, secondly, if it is taken into consideration, it does not give any authority to consent to the change and thirdly that this letter cannot be treated as an authority on behalf of respondent No,6 as she has not signed it.
14. The contention of the learned counsel that without satisfying the conditions, laid down under section 65 of the Evidence Act, a photo copy being a secondary evidence cannot be admitted in evidence seems to be correct. In any event this letter recites that the appellant has stated that there is some dispute about water supply to him and the respondent No,5 advised that every one should get what he is entitled in law. This letter cannot be termed as an authority to consent on behalf of the respondent No,5. At least respondent No,6 has not signed it nor it has been written on her behalf or by her attorney. In this state of facts it is now to be examined whether the provisions of law were complied by the Canal Authority before change of the water course. In this regard three provisions of Sind Irrigation Act 1879 are relevant:
22. Any person desiring to have a supply of water through a water-course of which he is not an owner may make a private arrangement with the onwer for permitting the conveyance of water thereby, or may apply to a Canal Officer duly empowered to receive such application for authority to use such watercourse or to be declared a joint owner thereof.
23. On receipt of any such applictaion, the Canal Officer shall serve notice on the owners to show cause why such authority should not be granted or such declaration should not be made, and, if no objection be raised, or if any objection be raised and be found insufficient or invalid, shall, subject to the approval of the Collector, either authorise the applicant to use the water-course, or declare him to be a join owner thereof on such conditions as to the payment of compensation or rent or otherwise as may appear to him equitable."
15. "91 (I) whenever it appears to any Canal Officer not inferior in rank to an Executive Engineer that it is expedient to change the source of water-supply of any land for the more efficient distribution of water, he shall serve a notice on the holder or holders of the land and, if he proposes to transfer the source of water-supply of the land to any existing water-course, on the owner or owners of such water-course, also, calling upon them to state in writing their objections, if any, as to the source or alignment or construction of the proposed watercourse."
16. "(2)(i) If no objection is raised within thirty days from the date of service of the notice, the Canal Officer may change the source of water-supply of the land in such manner as he thinks expedient."
17. "(ii) If any objections are received within the said period of thirty days the Canal Officer shall give the holder or holders of the land and the owner or owners of the water-course a reasonable opportunity of being heard and may, if the said objections are settled, proceed to change the source of water-supply accordingly."
18. "(iii) If no settlement in respect of the said objections be arrived at between the Canal Officer and the holder or holders of the land and the owner or owners of the water-course, the Canal Officer shall forthwith refer the matter to the Collector whose decision, subject to any orders that may be passed in revision by the Revenue Commissioner, shall be final and conclusive as regards the alignment and construction of the purposed water-course and shall not be called in question in any civil Court."
19. ' Under section 22 any person who is not the owner of the water-course can make private arrangement with the owners who may permit the change of conveyance of water or apply to Canal Officer to permit him to use such water-course or to be declared a joint owner thereof. After any such application has been filed the Canal Officer shall follow the procedure provided by section 23. He will serve notice on owners to show cause why the application should not be granted and if the objections are filed and after consideration are not sustainable the Canal Officer shall subject to the approval of the Collector either authorise the applicant to use the water-course or declare him to be the joint owner thereof on payment of compensation rent or otherwise which he may find proper just and equitable. Section 91 contemplates a suo moto action by a Canal Officer n not inferior to the rank of an Executive Engineer who may change the source of water supply of any land if he feels that such change is expedient for more efficient distribution. Before such change is effected notice on the holders of land and owners of such water-course should be served inviting objections. If no objections are filed within 30 days from the date of service of notice, the Canal Officer may change the source of water as he thinks proper and expedient. If the objections filed are not settled between the parties, the Canal Officer with the approval of the Collector may decide the objections which decision can be challenged before Commissioner in Revision, In the present case section 91 will not be applicable. The relevant provisions applicable are sections 22 and 23. Section 23 contemplates notice to all the owners, therefore, if it is found that notice has not been served on any of the owners/ Khatedars it will amount to a violation of law. In the present case it is clear that some of the Khatedars have not been served with notice at all. The notice has been sent to Abdul Hakim and Abdul Jabbar through the Settlement Department and none else.
20. ' Mr.Mushtaq Memon has contended that the notice to all the Khatedars was not necessary because consent has been obtained from them. The consent is not on behalf of all the remaining Khatedars. It is not on behalf of respondents Nos. 5 and 6, Abdul Sattar, Bilawal and Bandi. Under section 22 notice is issued when a change is requested by an application to the Canal Officer without making any settlement with the owners. Section 22 makes it very clear that on receipt of any such application the Canal Officer has to issue a notice to the owners, to show cause why it should be granted. If no objection is filed the Canal Officer can pass the order subject to the approval or the Collector. The notice in such cases is necessary mainly becasue such change in water supply may prejudice the rights of other owners and Khatedars. The scheme of sections 22 and 23 does not permit waiver of notice. The consent (Exh.80) was obtained by the appellant admittedly before filing the application before the Canal Officer. It was not a consent on behalf of all the owners, therefore, the Canal Officer should have issued notice to the Khatedars and at least should have ascertained whether the consent has been given by them. If the argument of the learned counsel for the appellant that when consent has been given no notice should be issued is, accepted then it may lead to startling results. It will amount to saying that if a dishonest and fraudulent person files forged documents showing the consent of the owners the Canal Officer should accept it as correct without any verfication.
21. This cannot be the intention of the Act which is to protect the rights of every owner where change in water supply is to be made. The clear position being that notice was not issued to even those Khatedars who had not consented, therefore, the procedure followed by the Canal Officer was illegal and no order for transfer of source of water supply could be made.
22. ' Mr.Jhamat Jethanand the learned counsel has further contended that the Canal Officer had no power to grant the application without the approval of the Collector. Even under section 91, if it is applied in the present case, the same result will follow because under section 91 notice has to be issued by the Canal Officer for any change he wants to make in the source of supply of water.
23. Under section 92 the order has to be passed by the Collector and not the Canal Officer which is revisable by the Commissioner. The documents produced in the evidence show that the order for change was not approved by the Collector. In fact before it could have been sent for approval the Chief Engineer realising the illegallity cancelled the said order.
24. The order for change of supply (Exh.90) clearly states that change is approved subject to complete observance of procedure under section 91 of the Irrigation Act. The order seems to be very emphatic that the change shall not be effected until all Khatedars of water-course No,13-L give their genuine consent. The observance of provisions of law was necessary and this order was subject to such proceedings, as required by law. Unless such proceedings were completed the order could not be given effect to. The Canal Officer seems to have completely ignored the provision of law and given effect to the order which was tentative, conditional and not operative. It was, therefore, rightly cancelled by the Chief Engineer. The learned counsel for the appellant stated that this order was cancelled without notice to the appellant. The order (Exh.90) could not be implemented till the preconditions laid down by it as well as by the provisions of law were complied with. In these circumstances such order could not be allowed to be continued indefinitely.
25. ' For these reasons the appeal is dismissed.