' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---Doctor Fatehullah Khan, respondent No,4 herein, made an application on 15-8-1985 under section 23 of the Canal and Drainage Act, 1873 (Act No, VIII of 1873) (hereinafter called as the.Act) to a Divisional Canal Officer for transferring an existing watercourse No, 6720/R, Nawab Minor, situated in village Ruk Kuhna from its present owners, namely, Ghulam Shabir and Bashir Hussain, petitioners herein, to himself. On receipt of this application, the Divisional Canal Officer served a, notice on 21-1-1985 of the application through publication and also endorsed a copy thereof to the Collector of Dera Ismail Khan District. By another notice dated 16-2-1985, Ghulam Shabbir, petitioner No,1 herein, was also served with a notice to show cause as to why the disputed watercourse should not be transferred from him to respondent No,4. The statements of respondent No,4 and those of the petitioners were recorded by the Divisional Canal Officer on 19-1-1985. Simultaneously he recommended to the. Collector for initiating proceedings forthwith under section 25 of the Act to place respondent No,4 in occupation of the watercourse in dispute. The respondent No,2 vide his order dated 7-3-1985, issued a Notification for acquisition of one kanal and 9 marlas of land covered by the disputed watercourse.
The petitioners raised objections to the Collector by a petition dated 18-2-1985, but the objections, it appears, were apparently overruled and the application of respondent No,4 for transferring outlet No,6720/R in village Ruk Kohna was granted by the order dated 28-3-1985 of respondent No,2. The validity of the two orders dated 7-3-1985 and 28-3-1985 passed by the Collector, D.I. Khan (respondent No,2) granting the application for transferring the disputed watercourse to respondent No,4 and acquisition of the land therefore have been called in question through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan.
2. The orders aforesaid impugned in this writ petition have been assailed on the following grounds:
(i) That the procedure adopted in acquiring the petitioners' land under the purported exercise of authority within the contemplation of sections 23 and 24 of the Act culminating in the final orders of respondent No,2 dated 7-3-1985 and 28-3-1985 being mala fide and arbitrary are without lawful authority,
(ii) That respondent No,4, had no locus standi to prefer any application under section 23 of the Act, in that the transfer of an existing watercourse from the petitioners to respondent No,4 could only be made in the interest of irrigation, or to be more precise, for what has been laid down in section 23 as "better management of irrigation from such a watercourse", whereas the consideration that weighed with the respondents Nos.2 and 3 for passing the impugned orders was quite different which was not recognized by law;
(iii) that under section 23 of the Act, it is" only the Superintending Canal Officer who can confirm or modify the decision in the matter taken by the Divisional Canal Officer for the transfer of existing watercourse in the interest of justice and, therefore, the final order passed by respondent No,2 purporting to transfer the disputed watercourse to respondent No,4 was without any lawful authority and of no legal effect, and
(iv) that the learned Additional Commissioner (respondent No,1) had erred in not entertaining and adjudicating upon the petitioners appeal on merits, because he being the next authority after the Collector was competent to entertain and adjudicate upon it.
3. In the comments submitted by respondents 1, 2 and 3, respondent No,1 has stuck to his stand that there was no provision of appeal against the order, under section 23 of the Act and, therefore, the appeal had been rightly dismissed. Respondent No,2 on his part maintained that the objections raised by the petitioners were duly heard by him and the decision rendered thereon was perfectly in accord, with the provisions of the Act and the rules framed thereunder. Respondent No,3 denied in his comments that section 23 ibid vested any authority in the Superintending Canal Officer and, therefore, the procedure adopted by respondent No,3 was perfectly in accord with section 23 of the Act. It was also averred in the comments of respondent No,3 that on the request of respondent No,4, outlet No,6720/R, Nawab Minor was transferred for the better management of the watercourse. The impugned order was also defended on the ground that respondent No,4 being the tale irrigator of the said outlet has a right to maintain the watercourse from head to tail and, therefore, he had a lot of interest in its maintenance which is contrary to other irrigators including the petitioners being the head-reach irrigators.
4. S.Zafar Abbas Zaidi, the learned counsel for the petitioners, did not press his objection that the Superintending Canal Officer, could only confirm or modify the decision taken by the Divisional Canal Officer for the transfer of the existing watercourse, because the amendment in section 23 of the Act which he relied upon in support of his contention was not applicable to N.-W.F.P. In N.-W.F.P.
The only authority to whom the application for transferring an existing watercourse from its, present owners to the applicant has to be made is the Divisional Canal Officer. The learned counsel also conceded to this proposition of law and withdrew his petition accordingly. The learned counsel then reiterated his contention, which he had already taken up in the grounds of his petition, that there is not an iota of evidence on the file to show that the impugned order of transferring the existing watercourse from the petitioners to respondent No,4 had been passed for the better management of irrigation which was a sine qua non for such a transfer. In this context, he invited our attention to the statement of respondent No,4 recorded by respondent No,3, photo copy Annexure 'E'.
5. As against this, Mr. 'Allah Nawaz Khan Sadozai, Advocate, appearing on behalf of respondents 2 and 3 and Mr. Dost Mohammad Khan assisted by Malik Muhammad Bashir, counsel for respondent No,4 urged that the two grounds which found favour with respondents 2 and 3 for passing the impugned order; firstly, that the petitioners intended to dispose of their land covered by the impugned watercourse and, secondly, that claim of respondent No,4 being a big landlord, do fall within the purview of the better management of the irrigation form the watercourse in dispute. On legal plane, the learned counsel for the answering respondents cited Muhammad Sharif v.
Muhammad Afzal Sohail PLD 1981 SC 246 and Abdur Razzaq v. Saleem Hidayat PLD 1987 Lah. 47 for the proposition that a Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and the mere fact that any other conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction.
6. The case of Abdur Razzaq, cited at the Bar, was not, however, of writ jurisdiction. It was held in F.A.O. No,10 ,of 1985 by Gul Zarin Kaini, J., of Lahore High Court, that normally a Court of appeal would not interfere with the exercise of discretion by the lower Court, if the discretion, which is a judicial act, has been judiciously exercised by it. This case, we are afraid, is not on the point agitated before us. In so far as the case of Muhammad Sharif, cited at the Bar, is concerned, the rule laid down in the case of Muhammad Hussain Muneer v. Sikander PLD 1974 SC 139 was followed. The following observations in Muhammad Hussain Muneer's were held to lay down the proposition agitated by the learned counsel for the respondent in the case of Mohammad Sharif:- "It is wholly wrong to consider that the above constitutional petition was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the Constitution-makers."
' The dictum of the Supreme Court came up for consideration before their Lordships of the Supreme Court in Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others, wherein his Lordship, Dr. Nasim Hasan Shah, J., agreeing with his Lordship Muhammad Haleem, as his Lordship then was, and elaborating the rule laid down in the case of Muhammad Hussain Munir v. Sikandar (PLD 1974 SC 139) and Zulfiqar Khan Awan v. Secretary, Industries etc. (1974 SCMR 530), observed as under: "that the judgments have not been read in their proper context. It is right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it rightly or wrongly", because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide it rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside the jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
7. We have perused the statement of respondent No,4 wherein he has sought the transfer of the watercourse to himself not for the better management of the irrigation, but was interested in its transfer because he was apprehending the sale of their lands by the petitioners to some unknown person which would hinder the maintenance of the watercourse and affect adversely the better management. Respondent No,3 has also recommended the transfer of the disputed watercourse to respondent No,4 on the ground of the said apprehension and further that respondent No,4, being a big owner of the Chak being irrigated 1 by RD-6720/R, Nawab Minor, would be in a position to manage it in a better way.
8. A bare reading of clause (a) of subsection 3 of section 23 ibid would confirm that if the Divisional Canal Officer considers that the intended transfer of the disputed watercourse in necessary for the "better management of irrigation" (underlining is ours), he shall call upon the applicant to make such deposit as the Divisional Canal Officer considers necessary to defray the cost...Obviously, the factors of being a big owner in the land covered by a watercourse, or a mere apprehension of sale of the lands by the petitioners, do not come within the purview of "better management". The answering respondents Nos.2 and 3 have, therefore, gone outside the jurisdiction conferred on them, in that they have not passed the impugned orders for the better management of the irrigation, but have been swa yed by extraneous considerations, namely, respondent No,4 being a big landlord and the supposed apprehension of sale of the lands by. The petitioners of the land covered by the disputed watercourse. This act of the answering respondents 2 and 3 thus goes outside the jurisdiction conferred on them, because they had the jurisdiction to transfer the disputed watercourse to respondent No,4 for better management and not otherwise. We subscribe to the view of the learned counsel for the respondents that this Court, under its constitutional jurisdiction would not review the findings of fact properly reached. It is, however, now well settled that cases of errors of law, jurisdiction, decisions given in breach of rule of natural justice, as also cases of findings based on no evidence are some of the instances where interference could legitimately be made. Besides, the cases of misreading/non-reading of evidence, failure to notice an act in accordance with the binding precedents of the Superior Courts and misapplication of statutory law are also the instances where interference in constitutional jurisdiction can be made. .In the instant case, therefore, the impugned orders dated 7-3-1985 and 28-3-1985, passed by respondent No,2, are based on no evidence. The consideration that merely because respondent No,4 is a big landlord would be enough for depriving the petitioners of the management of the water course, is a glaring example of breach of rule of natural justice. We are, therefore, of the considered view that the impugned orders have not only been passed on no evidence; but also offend the principles of natural justice. Respondents 2 and 3 have gone outside the jurisdiction vested in them and are shown to be erroneous on the point of law.
9. In the result, the impugned orders passed by respondent No, 2 on 7-3-1985 and 28-3-1985 are declared to have been passed without lawful authority and are, therefore, of no legal effect.
Consequently, this writ petition is allowed with no orders as to costs.