Fazal-i-Mahmood, J.-This writ petition is directed against the orders of Collector, Hill Torrents, the Deputy Commissioner/Commissioner under Minor Canals Act and of the revisional authority under the said Act.
2. The petitioners Murad Ali etc. Moved an application to the Collector, Hill Torrents, Dera Ghazi Khan stating that the respondents had converted the Bandobasti water course by installing Lath in Tal Wah Ghazi and were irrigating the Ghair Haqooq Raqba Shamlat, khasra No. 206, through a new Ghair Bandobasti wah. They sought the relief for removal of obstructions and restoration of water in bandobasti wah. He granted relief to the petitioners to the extent of removal of unauthorised ganah and restoration of water through bandobasti wah. He further allowed irrigation of khasra No. .06 with a new mohan. This order was appealed against by both the parties before the Deputy Com- missioner/Commissioner, Minor Canals Act who after visiting the site in the presence of the counsel for the parties and officials ordered that Azim etc., respondents had no right of construction of wah shumali to irrigate their land. This was accordingly ordered to be removed, lt was further observed in his impugned order dated 3-8-1 y83 that although there was no mention of khasra No. 206 in Haqooq Abpashi, but keeping in view the labour of the appellants over the Dnd, the first portion of khasra No 206 measuring 124 kanals was allowed to be irrigated through Tal Wah Rod Ghazi without disturbing the bandobasti system of irrigation. Against this order of the Commissioner, Minor Canals Act, respondents filed a revision petition before the Commissioner, Dera Ghazi Khan. He found no justification to interfere with the order of the Commissioner, Minor Canals Act dated 3-8-1983 and upheld the same. He further observed that the appellants could, however, irrigate their land by surplus water from the aforesaid Tal Wah Rod Ghazi after irrigation of khasra numbers mentioned in Haqooq Abpashi.
3. The learned counsel appearing in support of this writ petition sought to argue that the impugned orders were unjust, inequitable and beyond the pale of the powers of the authority under the Minor Canals Act. However, a perusal of the order of the Collector dated 19-4-1982 shows that there was a sort of compromise between the parties and they got their statements recorded. Both the parties in their statements admitted that in accordance with the decision of the Collector, Shah Wali Khan Sahib, dated 20-10-1941, respondents were entitled to irrigate their land in khasra No. 206. The parties also undertook to demolish certain unauthorised obstructions and carrying out irrigation according to the lawful procedure as per the terms and conditions of the order dated 22-10-41. The Collector after examining the case vide his order dated 19-4-82 observed that as per the decision of the former Collector dated 21-10-1941, the previous khasra No. 206 was irrigated from the Rod Ghazi and that since about 30/40 years back it was being cultivated. The respondents were also required to furnish security in the sum of Rs. 10,000 to abide by the undertaking given by them to the Collector.
4. During the course of hearing of the appeal, the Deputy Commissioner visited the site in the presence of the parties and the officials. It was observed that khasra No. 206 was not mentioned in Haqooq Ab-pashi. However, keeping in view the labour put up by the appellants, he allowed an area of 124 kanals from khasra No. 206 to be irrigated. He also ordered that the northern wah should be closed in order to stop the wastage of water.
These two orders were upheld in revision under section 59 of the Minor Canals Act by the Commissioner Dera Ghazi Khan exercising the powers of Member Board of Revenue under the Minor Canals Act,
5. It is undeniable fact that the cider of Shah Wali Khan dated 22-10-1941 does bring out that the respondents were held to be entitled to irrigate khasra No. 206 as per the lait bandobast and the same was under cultivation for about 30/40 years prior thereto. Moreover, there was a consented arrangement arrived at between the parties in respect of which their statements were recorded.
However, the Collector and the Deputy Commissioner both have gone by equitable considerations and based their decisions to secure the interest of both the parties. It cannot be overlooked that as far back as the year 1941, the Collector had held that since according to previous bandobast the khasra number in dispute was being irrigated from the Rod Ghazi and about 30/40 years prior thereto, it was also being cultivated, as such neither the cultivation could be stopped nor supply of the irrigation water could be ordered to be shut out and that it will continue to be irrigated as before from the Rod Ghazi. No doubt, it is true that minor adjustments were made by the Collector by his order dated 19-4-82 but that were favourable to the petitioners. The Collector and the Deputy Commissioner under Minor Canals Act have granted further relief to the petitioners by reducing the area only to 124 kanals as against previous arrangement for over 500 kanals. The orders impugned, therefore, are equitable and just in the facts and circumstances of this case. It is too late in the day for the petitioners to re-agitate the matters, when they had failed to assail the order of 1941 and the parties continued to enjoy their rights to obtain irrigation supply from Rod Ghazi since decades.
9. This is not a fit case, in my view, for interference in exercise of discretionary Constitutional jurisdiction. The writ petition, therefore, fails and is hereby dismissed. There shall, however, be no order as to costs.