NASIM HASAN SHAH, J.---This is an appeal by the Chief Engineer and the Superientending Engineer (Irrigation) Mailsi Canal Circle, against the order of a learned Single Judge of the Lahore High Court dated 9-5-1979 accepting the writ petition filed by Nazir Ahmad and others (respondents 1-6 herein)
2. The brief facts of the case are that the respondents are owners of six squares of land in the revenue estate of Alipur, Tehsit Shujabad, District Multan. Their lands fall in the C.CA. (culturable commandable area) of the Shujabad Canal Division, Haveli Canal Circle. In 1975 the respondents applied for their lands to be transferred from the C.CA. Of Shujabad Canal Division, Haveli Canal Circle to Patti Minor Lodhran Canal Division, Mailsi Canal Circle. On 30-3-1976 the XEN, Lodhrari Canal Division forwarded the respondent's application to the S.E., Mailsi Canal Circle, with his recommendation for inclusion of the said lands in the Outlet No.27572/R of Patti distributory on the ground that most of the area covered by that distributory was not under cultivation and the outlet would not suffer. The case was returned for supplying further details. The Patwari Halqa prepared the Goshwara on 16-8-1976 and the successor XEN, Lodhran Canal Division, favourably recommended the case again on 16-9-1976. Instead of approving the case which power the S.E.
Mailsi Canal Circle had, he referred the matter to the C.E. (Irrigation), Bahawalpur, with his recommendation that the area be permitted to be attached to Outlet Ne.28050/R of Patti minor of Bahishti distributory. However, the Chief Engineer rejected the case on 9-10-1976. In 1977, however, the respondents' lands were allowed water supply out of Outlet RD 28050/R from Patti Minor under the Grow More Food Scheme on a temporary basis. On 29-8-1977 the Chief Engineer, Bahawalpur, disconnected the said supply, whereupon the respondents filed Writ Petition W.P. No.2181 of 1977 challenging the said order which had been passed without show-cause notice to them. Stay order was issued in favour of the respondents in the said case. It is submitted That during the said proceedings the S.E. (Irrigation), agreed to connect the respondents' lands in the C.CA. Of Patti Minor, provided the writ petition was withdrawn, which was accordingly done on 24-10-1977. The respondents then applied to the Chief Engineer (Irrigation), Bahawalpur, for their lands to be supplied water from the Patti minor, on which application the Chief Engineer by his endorsement dated 11-5-1978 called upon the S.E. Mailsi to get the verification done and to submit the report to him. The XEN, Shuiabad Canal Division, by his letter dated 19-9-1978, agreed to the transfer of the respondent's lands from his C.CA. To that of the Lodhran Canal Division. The S.D.C.O. Lodhran Canal Division recommended the case of the respondents with working papers. Likewise, the XEN, Lodhran Canal Division, prepared the working paper for inclusion of the respondent's lands to Outlet RD 29050/R of Patti Minor, which he submitted to the S.E. Lodhran Canal Circle. However, the S.E., Mailsi Canal Circle, submitted the case to the Chief Engineer (Irrigation), Bahawalpur, with a note of rejection. Being aggrieved by the said position, the respondents filed al writ petition taking up the position that the original order of Ch. Muhammad Tahir, S.E. Dated 18-9-1976 recommending their case to the Chief Engineer (Irrigation), Bahawalpur, legally entitled them to secure water from Patti minor and to restrain the appellants from cutting off their water. The said writ petition was allowed by the learned Single Judge on 9-5-1979. Being aggrieved by the said order, the appellants sought leave to appeal, which was granted to consider the legal effect of section 20 and other sections of the Canal and Drainage Act which were applicable to the case, as the matter was one of public importance.
3. On behalf of the appellants it is submitted that the procedure prescribed by the law before any land can be included in the C.CA. Of a Canal Division is that notice must issue to all the other land owners in the said Canal Division and no such notice having been issued in the instant case it was not open to accept the prayer of the respondents for inclusion of their land in the C.CA. Of Patti Minor. It is further contended that the land owners at the tail of Patti minor have been pressing their objections to the inclusion of the respondents' lands at the tail of Patti minor, which, has deprived them of water, as a result of which many land owners at the tail-end have abandoned their lands and taken to labour in the village.
4. On behalf of the respondents it is submitted that Ch. Muhammad Tahir S.E. Having recommended the case to the Chief Engineer (Irrigation) Bahawalpur, nothing further was required to be done as the S.E. Alone had the final authority in the matter, which he had exercised in favour of the respondents and the Chief Engineer had no further authority to reject the recommendation.
It is further submitted that the respondents have been receiving water since 1977 out of Outlet No.RD 28050/R and that if the water from Patti Minor is withdrawn their lands which have taken many years to develop will become barren again. It is further submitted that technical battles between officers of two different Canal Circles should not stand in the way of land owners securing their water from the nearest best available source.
5. This case was argued at length on a number of dates by the learned counsel for the appellants and the respondents and though we thought that on the legal plane the stand of the appellants was correct, but in view of the fact that the respondents had been receiving water since 1977 out of Outlet No.RD-28050/R connected with Patti Minor and if the same was withdrawn their lands which had taken many years to develop would again become barren, we thought it mete and proper to summon the Chief Engineers of the Haveli Canal Circle and Mailsi Canal Circle so that the matter could be sorted out and the technical battle between the lower officers of the two different Canal Circles could be resolved, so that the same did not stand in the way of the respondents securing their water from the nearest best available source. In response to our request, both the Chief Engineers of the Haveli Canal Circle and Mailsi Canal Circle have appeared. Whereas the Chief Engineer (Irrigation), Multan, has no objection to the lands of the respondents being taken away from the C.CA. Of the Shujabad Canal Division, the Chief Engineer (Irrigation) Bahawalpur, has strong objections to the said area being included in the C.CA. Of the Haveli Canal Circle, considering that the lands of the respondents, which are at the tail-end of Patti Minor, draw away appreciable water required by the other land owners at the tail-end who have for many years been objecting to seriously depleted water supplies being given to them. It is further submitted that only lands falling within the irrigation boundaries of the Haveli Canal Circle which are not provided with water can be considered for inclusion in the C.CA. Of the said Circle and to include lands falling outside its boundaries would entail seeking no objection certificates from the other land owners having lands at the tail-end, apart from moving Government for additional water which entails a complicated procedure. However, in view of the deep concern expressed by us at the prospect of the lands of the respondents, which have been developed by them through the award of water during the past decade becoming barren again, a prospect which is not only calamitous for the respondents but also highly injurious to the public interest. Mr. Mazhar Hussain, Chief Engineer (Irrigation) Bahawalpur, has, though with considerable reluctance, agreed to take over the lands of the respondents and include them in the C.CA. Of the Haveli Canal Circle and to presently supply them. 0.42 cusecs of water instead of 0.83 cusecs recommended by the Subordinate Staff. We note with appreciation this positive and constructive attitude of the learned Chief Engineer (Irrigation) Bahawalpur, and are of the opinion that this otter represents a very fair solution to the situation.
6. The upshot is that the appeal of the Chief Engineer (Irrigation), Mailsi Canal Circle, and another, appellants, stands partly accepted in that only 0.42 cusecs of water will be released to the lands of the respondents presently, till proper arrangements are made for normal supply of water to the respondents in the same ratio as the other land owners who also have lands at the tail-end. As the success is divided, the parties are left to bear their own costs.