' This civil revision is directed against the judgment and decree dated 14-1-1977 by the learned District Judge, Rahimyar Khan, whereby he confirmed the judgment and decree dated 12-11-1976 of the Administrative Civil Judge, Rahimyar Khan.
2. The petitioners/plaintiffs had filed a suit for declaration to the effect that the order dated 15-9- 1975 passed by respondent No,2, the Superintending Engineer, whereby the supply of water for the garden of the petitioners/plaintiffs was ordered to be discontinued, was illegal, void and inoperative on the rights of the petitioners/plaintiffs with a prayer for permanent injunction against the respondents that they should not interfere with the supply of the water being utilized for the irrigation of the garden.
3. The suit was contested and the following issues were framed:---
(1) Whether the plaintiffs have not come with clean hands and are not entitled to any relief?
(2) Whether the order dated 15-9-1975 of defendant No,3 is illegal and void?
(3) Relief.
' The issue No, 1 was not pressed, issue No, 2 was decided against the petitioners/plaintiffs. The suit of the plaintiffs was dismissed with cost on 12-11-1976. Thereafter the petitioners/plaintiffs preferred an appeal to the learned District Judge, Rahimyar Khan against the said order of dismissal of their suit. The learned First Appellate Court also dismissed the appeal, leaving the parties to bear their own costs, thus confirming the judgment and decree passed by the trial Court. Hence this civil revision petition.
4. The learned counsel for the petitioners/plaintiffs contended that both the Courts below have failed to take into consideration and have either misread or totally ingored the oral and the documentary evidence produced on behalf the petitioners/plaintiffs, and, therefore, both the Courts below have acted with material irregularity. In support of his contentions it was further pointed out that no notice allegedly issued to the petitioners/plaintiffs, has been brought on record by the respondents/defendants, and that furthermore no report of the Ziladar has been produced or proved before the trial Court to the effect that there is no garden at the spot as claimed by the petitioner/plaintiff. It was, further elaborated that the said documents i.e, a copy of the notice alleged to have been served and a copy of the report of the Ziladar to prove the non-existence of the garden of the petitioners/plaintiffs would in the normal circumstances, and in order . To establish the bona fides of the action taken against the petitioners/plaintiffs, has to be in possession of respondents Nos.1, 2 and 3, and that the failure of the said respondents to produce and prove the existence of the said documents is fatal to the case of the respondents/defendants.
And that, therefore, the finding of the trial Court on issue No,2 is against the evidence on record and is not sustainable in the eyes of law. The learned counsel further contended that in respect of issue No,2 both the Courts below had misapplied the law inasmuch as under rule 12 of the rules for extra supply of canal water for gardens and orchards framed under the Canal and Drainage Act, 1873, the mandatory requirement is that the Director Agriculture may stop the supply of extra water for a Garden or an Orchard, for not being satisfactorily maintained by an owner, after giving six months notice. The rule 12 is as follows:-- 'Inspection of gardens by Agricultural Department. -- If the Director of Agriculture, who will be in close touch with the development and maintenance of orchards, reports that an orchard is not being satisfactorily maintained by an owner, the extra supply may be stopped after giving 6 months notice."
' It was further pointed out that instead of applying rule 12 the Courts below have relied upon rule 19 ibid which is not relevant to the facts and circumstances of the instant case. The rule 19 is applicable to where the surrender of extra supply water is made voluntarily. The rule 19 ibid is as follows:-- "The S.E. Is authorised to discontinue the extra supply of canal water sanctioned for gardens in the case of voluntary surrender of the receipt."
' Therefore, it was urged in conclusion that the judgments and decrees of both the Courts below suffer from misreading of the evidence on record and misapplication of the rules and that, therefore, both the decisions are liable to be set aside and the suit of the petitioners/plaintiffs merits being decreed in terms of the prayers therein.
' In support of his contentions, the learned counsel for the petitioners/ plaintiffs, referred to the plaint and the written statement in the suit. It was pointed out that in their written statement the respondents Nos. 2 and 3 had stated as para. No,3, on merits, that out of 78 Acres claimed to be the area of Garden, by the petitioners/plaintiffs, 55 Acres were found not to be under the Garden and it was further stated that even before the flood of 1973, the whole of the area claimed was not planted as a Garden. Whereas in the impugned order dated 15-9-1975 passed by the Superintending Engineer Rahimyar Khan Circle, Rahimyar Khan, respondent No,2, has cancelled the extra supply of water holding that the garden absolutely does not exist at the site. Therefore, it was contended that the impugned action has been taken without any basis therefor and without fulfilling the necessary requirement of a report by the Zilladar, and without fulfilling the other requirements of the relevant rule. And that the absence of a report/inspection establishes the mala fides of the respondents.
5. The learned counsel for the respondents Nos. 1 to 3, on the other hand, contended that the relevant rules arc 17 ibid and rule 19 ibid. The rule 17 is as follows:-- "Inspection of gardens by Zilladars. --All gardens and orchards receiving extra canal water-supply should be inspected by the Zilladars once during the year who should certify annually on 30th November to the effect that all the conditions on which extra supply has been sanctioned for all gardens or orchard areas in their sections are being fulfilled. Exceptions, if any, should be given. On receipt of certificates from the Zilladars the Deputy Collector will check and consolidate the reports before submission to Executive Engineer on the 15th December.
' The learned counsel for the respondents Nos.1 to 3, however, conceded that there was no report, neither of the Zilladar nor of the Deputy collector concerned on the record. The learned counsel further conceded that rule 19 ibid does not apply in the present case as the same is applicable where the extra supply of canal water is surrendered voluntarily.
6. The learned counsel for the respondents Nos. 1 to 3 contended that rule 12 ibid does not apply in the present case as the same deals with the maintenance of orchards. It was, however, admitted that if action is to be taken under rule 12, then 6 months notice is required.
7. The learned counsel appearing for Imdad Hussain, who was allowed to become a party to the present revision petition, opposes the revision petition on the ground that as the petitioners/plaintiffs were utilizing the canal water on the pretext of having a garden whereas there is no garden at the site, therefore, the petitioners/plaintiffs are not entitled to draw any extra supply of canal water from the outlet from which he also draws as one of the owners of the land situated on tha out-let and therefore, he is also aggrieved by the extra supply of water to the petitioners/plaintiffs. It was further argued that the petitioners/plaintiffs had not cross-examined the Deputy Collector concerned, who had appeared as D.W.1 in respect of the notice for cancellation and the report of the Zilladar and that of the Deputy Collector himself, therefore, the petitioners/plaintiffs are now estopped from raising these contentions as it stands admitted by them that the notice for cancellation had been served on them and that there was a report of the Zilladar and the Deputy Collector by their not having cross-examined the said Deputy Collector, D.W.1. On these points.
8. However, a perusal of the statement of the D.W.1, Mohammad Hayat Qureshi, Deputy Collector, rebuts the contentions raised above. In his statement in cross-examination the D.W.1 has stated that the whole of the garden in question was not in existence, and it was further admitted by him that the only notice issued was in respect of the petitioners/plaintiff having been asked to complete the planting of the whole of the garden claim for which water had been sanctioned. In his cross-examination he admitted that the petitioners/plaintiffs were paying special Abyana as the exitence of the garden had been entered into the Khatuni. And it was further admitted in the cross- examination that the Deputy Collector had not inspected the site himself. He had further stated in his cross-examination that the report has to be prepared by the Zilladar.
9. The outcome of the above discussion is that as conceded by the learned counsel for the respondents Nos. 1 to 3, rule 19 ibid does not apply to the present case, and as further conceded there is no report of Zilladar and the Deputy Collector on the record to the effect that there is no garden at the site or at least not the whole of it. The learned counsel for the respondents Nos. 1 to 3 had contended that rule 17 ibid applies to the present case but a the said rule itself lays down that there has to be an inspection report duly certified by the and the Deputy Collector is to check and consolidate the report before submission to the Executive Engineer, therefore, the absence of the said certificate of the Zilladar and its subsequent check and consolidation by the Deputy Collector renders the action undertaken in the present case to be in violation of the rule 17 ibid. Thus, even if it is accepted that the rule 17 applies in the present case, the provision of the said rule 17 had not been complied with, whereas both the lower Courts have erroneously relied upon the existence of the inspection certificate of the Zilladar and it being duly submitted to the Deputy Collector who is held to have checked it and then forwarded it to the Executive Engineer who had thereafter reported the matter to the S. E. Therefore, the judgments and decrees of both the Courts below are based on no evidence, and on misapplication of Rule 19 'bid to the present case and the learned Courts below have also failed to take into consideration and correctly appreciate the oral and documentary evidence produced by the petitioners/plaintiffs as the same has been completely ignored thus making it a case of misreading and non-reading of the evidence and misapplication of the rules that has materially affected the outcome of the suit of the petitioners/plaintiffs. The learned Courts below have also erred in holding that D.W.1 had confirmed that the notice for cancellation of extra supply of water had been issued whereas the said D.W.1 has admitted that no sub notice had been issued and the only notice issued was to the effect that the petitioners/plaintiffs should complete the planting of the garden claimed.
' Therefore, under the facts and circumstances of the present case it is hereby held that rule 12 ibid applies hereto.
10. Another strange aspect of the present case is that both the Courts below have held that the principle of "Audi Alteram Partem" does not apply to the present case. In view of the settled law on this subject that no one should be condemned unheard and furthermore that the principles of natural justice have to be read into every enactment, and as no exception has been stated in the relevant rules applicable hereto in explicit terms, and as provision for a notice before cancellation is provided for in the rules framed under the Canal and Drainage Act 1873, especially whereever the said rule deals with the cancellation of water in different circumstances, e.g. Rule 12, therefore, it is held that in the present case the notice for cancellation of the extra supply of water was a necessary requirement so as to hear the parties to be affected by such cancellation. Here it may be pertinent to point out that the rule 17 ibid relied upon by the respondents only deals with the procedure to be adopted for inspection and report and as stated earlier Rule 12 ibid applies in addition to Rule 17 ibid to the present case and notice of six months is required therein. And that the cancellation has to follow on the basis of recommendations made on the basis of such inspection and report, and that even the requirement of a notice before the cancellation is not expressly dispensed with under the said rule 17 ibid. Here it would be advantageous to refer to the D.B decision of this Court in this respect. In PLD 1970 Lah. 6 Syed Mahmood Alam v. Syed Mchdi Hussain and 2 others their Lordship, had held as follows, the relevant portion is at page 28:-- "The next subsidiary question which arises for determination is whether a person, aggrieved against an order, can take benefit for the purpose of appeal, of the fact that he had no notice of that order. The principle of natural justice, namely, audi alteram partem, has, by now, been firmly established by the force of precedent in judicial system of Pakistan. There are innumerable pronouncements by the superior Courts, particularly by the Supreme Court, laying it down as a rule that nobody can be made to suffer any harm to his rights including those relating to property, person and reputation, without giving him sufficient opportunity of showing cause. The approach of Courts, in application of this principle to individual cases, has been pragmatic. No technical consideration is allowed to bar the application of the above mentioned principle. Barring a few exceptions e.g. Exercise of purely police power in preventive measures, this principle applies to all situations. Ordinarly therefore, when a statute does not expressly bar the application of this principle, the Courts shall presume that its application is included in the provisions of that statute. It is a necessary corrollary of the acceptance of this principle that the procedural laws will have to be interpreted in such a way as to avoid conflict with this principle. This being a basic reality, all considerations, incidentally and consequentially related to the above principle, will have to be brought into operation in order to see that said principle is fully satisfied."
11. Therefore, for the reasons stated above, this revision is accepted and the judgment and decree of both the learned Courts below are hereby set aside and the finding on issue No, 2 is reversed and the suit of the petitioners/plaintiffs is decreed in the terms prayed for. However, this shall not prejudice the respondents from taking any action warranted in accordance with law in respect thereof. In the circumstances of the case there is no order as to costs.