FAZAL KARIM, J:- This Intra Court Appeal by the appellant Shamas-ud- Din alias Shamsoo has come from a judgment of the learned Single Judge dated 3.7.1991 dismissing the appellant's petition under Article 199 of the Constitution.
2. The facts are these. The appellant is owner of killas No. 13/3 and 17/2 of square No.145 and the respondents Mv/.Rafiqan and Abdul Majid are owners of killas No. 1,14,15,16, and 17 of square No.145.
Claiming that there was a water-course passing through killas No. 14/17, 15/16 and 17/(1) and that watercourse irrigated the appellant's land and alleging that the water-course had been demolished by Mst. Raliqan and Abdul Majid, respondents (to be referred to as the respondent owners), the appellant made an application under section 68-A of the Canal and Drainage Act, 1873 (to be referred to as the Act). The parties arc not agreed as to whether that application was made to the Sub-Divisional Canal Officer or the Divisional Canal Officer, the case of the respondent owners being that the application was made to the Sub-Divisional Canal Officer and was.
Therefore, incompetent, as under Section 68-A of the Act, it had to be made to the Divisional Canal Officer but in the facts of the case, and the view' we propose to take of section 68-A of the Act, we do not think it necessary to decide that question. It appears from the order of the Divisional Canal Officer dated 29.8.1989 that an inquiry was held by the Ziladar and the Sub-Divisional Canal Officer; that they were of the opinion that there had been a water-course in the respondent owners land mentioned above; that there was another water-course but that water-course had been constructed after the Deputy Collector had visited the spot to change the position and to complicate the matter; that the disputed water-course was the nearest water-course to the appellants land and that it was inconvenient to the appellant to irrigate his land from the "new water-Course". The Divisional Officer, therefore, held that there had existed a water-course in the respondent owners' land that the same had been irrigating the appellant's land and that it had been demolished by the respondent owners and ordered that the same should be restored.
3. Aggrieved by that order, the respondent Abdul Majid and three others instituted a civil suit. They also prayed for a temporary injunction. Their application for temporary injunction was dismissed and their plaint was rejected under Order VII, Rule 11 C.P.C. On 17.9.1989, the learned Civil Judge being of the view that no civil suit lay against the Divisional Canal Officer's order dated 29.8.1989.
Their appeal against that order was dismissed on 21.10.1989 and a revision petition under section 115 C.P.C, was dismissed by an order of a learned Single Judge of this court dated 1.11.1989.
4. Two other suits, both by the respondent. Mst. Rafiqan, who was not a party to the previous suit, challenging the validity of the Divisional Canal Officer's order dated 29.8.1989 were instituted; the first was dismissed as withdrawn and the plaint of the second was rejected under Order VII, Rule 11 C.P.C, on 28.7.1990. Mst Rafiqan appealed against the order dated 28.7.1990 but was again unsuccessful and her appeal was rejected on 9.1.1991.
5. There the matter rested, when Mst. Rafiqan made an application to the Divisional Canal Officer and the matter was re-opened. This time, the Divisional Canal Officer heard the parties; he found by his order dated 28.1.1991 that the appellant had an alternate water-course, namely, a water- course passing through their killa Nos.15 shomali, 6, 7, and 8 and that his land was situated on a lower level than other land. The Divisional Canal Officer was also of the opinion that section 68-A of the Act applied, when the water-course alleged to have been demolished was the only source of irrigation and there was no other source of irrigation in existence and that as there was an alternate source of irrigation available to the appellant, there was not justification for a water- course in killa Nos. 14 and 15 of square No 145.
6. The appellant's grievance in the petition under Article 199 of the Constitution mainly was that the order dated 28.1.1991 of the Divisional Canal Officer "and the entire proceedings were taken secretly and in an exparte manner. Petitioner at no stage was heard. Presence of the petitioner in the impugned order has been shown fictitiously which shows that entire proceeding has been taken by the D.C.O, in bad faith" that in making the impugned order the D.C.O."clearly acted beyond his jurisdiction inasmuch as he based his decision on D.O. Letters of the political persons, which by no stretch of imagination could be used as an evidence and made the basis of decision". The inquiry under section 68-A of the Act "was an independent, regular and judicial inquiry"; that an order under section 68-A of the Act does not decide the matter finally; that the final order is to be made under section 68 of the Act and that the order dated 29.8.1989 was to remain in force till the determination of the question under section 68 of the Act.
7. Before the learned Single Judge, it was argued that "D.C.O. Was not vested with power to review earlier order passed by the D.C.O on 29.8.1989." The learned Single Judge, however, referred to the D.C.O.'s order dated 28.1.1991 and observed that" the D.C.O.Has recorded a finding that in fact no khal was present in square No.145". On being asked whether" the said khal in square No.145 which was allegedly dismantled was duly sanctioned by the Canal Authorities in any warabandi" learned counsel for the appellant conceded before the learned Single Judge that ".At present he was not in possession of any such order but submitted that at the spot the same had been operating for the last many years", in view of these facts, the learned Single Judge was not inclined to "interfere in the impugned order in exercise of my discretion under Article 199 of the Constitution as the petitioner's land is gelling water from the regular khal sanctioned by the authorities". He, therefore, disposed of the appellant's petition with a direction to the SDCO" to take up the matter under section 68 of the Canal and Drainage Act and pass order in the matter".
8. The order dated 28.9.1988 shows and shows clearly that the Divisional Canal Officer in whom the power to make an inquiry for the purposes of interim restoration of the dismantled watercourse or the internal khal vested under section 68-A of the Act did not himself hold such inquiry and had not heard the respondents before making that order. This factual position is not disputed. It also appears plainly from the Divisional Canal Officer's order dated 28.9.1990 that order was made after hearing both the parties.
9. It ought it be mentioned here that the suits of the respondent owners were held not maintainable and their plaints were rejected by the learned civil Court on the authority of Niaz Muhammad Vs. Abdul Qayyum and 2 others (1987 C.L.C.2093).
10. Learned counsel for the appellant argued that the order dated 28.1.1991 had reviewed the order of the Divisional Canal Officer dated 29.8.1989 and this the Divisional Canal Officer had no authority in Caw to do. They only remedy of the respondent owners, so ran the contention, was under section 68 of the Act and the order dated 29.8.1989 must, therefore, have been allowed to remain in force till an order under that section was made. Power to review, it was contented, must be given by law before it can be exercised. For his contention, learned counsel for the appellant referred to Hussain Bakhsh vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 Supreme Court 1) and Syed Barkat Hussain Shah and others (1985 C.L.C. 2679). He argued further that once the Divisional Canal Officer comes to the conclusion under section 68-A of the Act that a water-course has been demolished, all that he can do is to order its restoration. He was, however, fair to concede that if an applicant under section 68-A of the Act has, to pul in his words "a practical and sanctioned water- course", Then he would not be entitled to the relief under that section.
11. Learned counsel for the respondent owners, however, argued that section 68-A of the Act applies only to cases where the water-course said to have been dismantled is a sanctioned water-course or the person claiming the supply of water through another man's land has a right to do so. In any ease, so argued the learned for the respondent owners, where a person has a duly sanctioned watercourse for the conveyance of the canal water to his land, he cannot avail of the provisions of section 68-A of the Act to use another man's land for that purpose, for in such a ease, there will be no interruption of watcr. He must, so went the argument, pay compensation to the owner through whose land he wants the canal water to be conveyed to his land before he can claim to have a right to do so.
12. Regarding the jurisdiction of the civil Court to hear suits challenging the validity of orders under section 68-A of the Act, learned counsel for the appellant and the learned counsel for the respondent owners were agreed that section 68-A did not create an express bar to the hearing of the surf and that the bar, if any. Is not absolute. Syed Zafar Hussain, Advocate, who represented a party in another petition was. However, of the view that a civil suit is barred and that an order under section 68-A of the Act must, as that section itself says must remain in force until the dispute is finally settled under section 68 of the Act. For this view, he called to his aid the provisions of section 67, which reads: "67. Jurisdiction undet this Act of Civil Courts: Except where herein otherwise provide, all claims against the Provincial Government in respect of anything done under this Act may be tried by the Civil Courts; but no such court shall in any case pass an order as to the supply of canal water to an> crop sown or growing at the time of such order".
13. As the questions requiring determination turn upon the interpretation of sections 68 and 68-A of the Act, it is necessary lor a true understanding of these sections to consider them in their context.
Section 20 of the Act enacts that whenever an application is made to a Divisional Canal Officer for a supply of canal water through an existing water-course or change of water source of supply of any land and he considers it expedient, he shall give notice to all persons interested including the land owners through whose land any link water-course is to pass to show cause on a day not less than fourteen days from the dale of such notice why the said supply should not be conveyed, or the source of supply be changed. After making an inquiry, the Divisional Canal Officer shall determine, whether and on what conditions the said supply shall be conveyed. Within 30 days of the announcement of the decision of the Divisional Canal Officer if no objection is received and after due opportunity of hearing, if an objection is received, the Superintending Canal Officer may confirm or modify the decision. Such decision shall be binding on all the persons concerned including the land owners through whose land the link water-course shall pass. The implementation of-the decision so reached however, subject to an important condition, namely, that the applicant "shall not be entitled to use the said water-course until he has paid the expenses of alteration of such water-course necessary in order to his being supplied through it, and also such share of the first cost of such watercourse as the Divisional or Superintending Canal Officer may determine" and also that " the applicant shall not be entitled to use the link-water-course, if any, until (a) he has paid to the land owner the compensation for the land occupied by such link water-course In whatever shape if it is determined through mutual agreement or (b) possession of land for the said link water-course has been acquired under the provisions of this Act". Sections 68 provides for the settlement of differences as to mutual rights and liabilities of persons interested in the use of water from a canal outlet, it reads:
(1) . whenever a difference arises between two or more persons with regard to the distribution of water from a canal outlet, construction, use, or maintenance of the water-course supplied with clearance, or mutual rights and liabilities in that regard, any such person may apply Writing to the Sub-Divisional Canal Officer staling the matter in dispute. The Sub-divisional Canal Officer shall thereupon proceed in the matter as laid down hereafter.
(2) . Such officer shall give notice to all persons interested and liable to be affected that on a day to be named in such notice he will proceed to enquire into the said matter and after such inquiry, he shall pass his order thereon, unless he transfers (as he is hereby empowered to do) the matter to the Collector, who shall thereupon enquire into and pass his order on the said matter.
(3) . Any person aggrieved by an order made by such Officer under sub-sec.(2) may within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer.
(4) . Where an appeal has been preferred under sub-sec.(3) the Divisional Canal Officer:
(a) shall decide the appeal as expeditiously, as possible and
(b) may pending the disposal of the appeal slay the operation of the order appealed against; provided the stay does not adversely effect any standing crops.
(5) . The applicant shall not be entitled to use the water-course that may be sanctioned under sub-secs. (2) or (3) above for conveyance of water to his land or the land required for the deposit of soil from watercourse clearances, until-
(a) he has paid to the land-owner the compensation for the land occupied for any of the aforsaid purposes in whatever shape it is determined through mutual agreement; or
(b) possession of the land has been acquired under the provisions of this Act.
(6) . Any order passed under sub-sec.(2) if there be no appeal preferred against it and an order passed in appeal under sub-sec.(3) shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made, and shall thereafter remain in force until it is set aside by a decree of a Civil Court".
Section 68-A of the Act reads: Powers of Canal Officers to restore interrupted Supply: If Canal- water supply of any land is interrupted by dismantling a water-course or internal khal, the Divisional Canal Officer may, upon application made to him in this behalf and after such enquiry as he may deem necessary order interim restoration of the dismantled water course or the internal khal and the interrupted supply of water at the cost of person who interrupted the supply and if necessary by use of such agency or force as may be called for and such order shall remain enforce until the dispute is finally settled under section 68 and if necessary a water course link is constructed under this Act.
Any charge determined for restoration of the water-course or internal khal shall be recoverable from the person at fault as arrear of land revenue".
14. The expression "watercourse", canal outlet" and "internal khal", as used in these section are technical terms and have the meanings assigned to them by clauses (2) (9) and (10) respectively of section 3 of the Act. The expression "water-course" means any channel which is supplied with water from a canal, but which is not. Maintained at the cost of the Provincial Government and subsidiary works belonging to any such channel. The expression "canal outlet" means a work which passes water from a canal including a Tube-well to a water course and is constructed maintained of controlled by the Government; and the expression "internal Khal" means any channel supplied with water from a water course for watering Helds.
15. It is clear that while a canal outlet is a work which is constructed, maintained or controlled by the Government, a water-course or a internal khal is not such a work. As a water-course is a work which is not maintained by the Government, it follows that it has to be maintained by the owners to whose lands canal water is supplied through it. It is also plain that all these provisions arc based upon the respect that the law has for persons personal and property rights. Thus, even if the canal authorities have sanctioned canal water for A's land, but in order to reach that land, canal water must pass through B's land, merely because canal water has been sanctioned would not entitle A to use B's land. Both under sections 20 and 68, a person, situated as A in the above illustration is, must, before he is entitled to use B's land for a water-course sanctioned to convey canal water to his land, either pay such compensation to B as is determined by mutual agreement or, in the absence of such an agreement, must have so much of B's land acquired" under the Act as is sufficient for the construction of a water-course. In short, both on general principle and on the express provisions of the Act, a person cannot use another's land , merely because canal water has been sanctioned or even because a water-course has been sanctioned through that other's land.
He can do so, and do so only, if compensation for that much land has been determined and paid by mutual agreement or as a result of compulsory acquisition. But, it may well be that A had been using a water-course existing in B's land, although the water-course was not a sanctioned water- course and A had not paid any compensation to B. There could be a family arrangement between them or the act of B, allowing A to use his land for the purpose, could be an act of friendship or generosity. Such an arrangement or act would amount to no more than a licence; the classic definition of a licence being that it properly passeth no interest nor alters or transfers properly in anything, but only makes an action lawful, which without it would be unlawful. (Thomas V. Sorrel 1673 Vaugh 330).
16. That there may be such a case is apparent from the provisions of section 68 itself. As we have seen, that section permits a person to apply if "a difference arises between two or more persons with regard to the distribution of water from a canal outlet, construction, use, or maintenance of the water-course" and empowers the canal authorities, after hearing the land owners concerned, to sanction a water-course. So a difference can arise, not only in regard to a sanctioned water- course but also in regard to one that has not been sanctioned.
17. But there may yet be another class of case. A person may have no right to use another's land for a water-course; he may not have applied for a water-course being sanctioned; he may not even have a licence to use that other person's land, in short, he may be no more than a trespasser, that is to say, he may have unlawfully entered into another man's land and constructed a watercourse for conveying canal water to his land. Or, it may be that A has two sources of canal water supply to his land, otic through a sanctioned water-course in B's land and another through C's land, as to which land A's position is that of a trespasser or that of a mere license.
18. It is in this context that the interpretation of section 68-A must be approached.
19. The purpose of that section appears to be to ensure that canal water supply of a person's land is not interrupted, and where there has occurred an interruption because a water-course has been dismantled, to empower the Divisional Canal Officer, as an interim measure, to restore the dismantled watercourse. This power is however subject to two necessary conditions precedent:
(1) that canal water supply of any land has been interrupted by dismantling a water-course or internal khal; and
(2) that before making the order restoring the water-course, there has been an enquiry.
It is manifest that the object of the enquiry is:
(a) to ascertain whether there existed a water-course and that has been dismantled. For, a water- course could be dismantled only if it had existed; and
(b) whether this dismantling has resulted in the interruption of canal water supply.
20. Now, if the record shows that the dismantled water-course was a sanctioned water-course, and was the only source of canal water supply, the matter will present little difficulty. In that, case, the dismantling of the watercourse must necessarily result in the interruption of canal water supply and after the necessary enquiry, the dismantled water-course has to be restored. But what if the dismantled water-course was not a sanctioned water-course? Then, if it is a case in which A, in the above illustration, has no right whatever to use B's land for a water-course and his position is no better than a trespasser, he has no right to the restoration of the water-course. For the law will not help a mere trespasser and allow a wrong doer to take advantage of his own wrong, it must, therefore, be held that section 08-A was not intended to apply to such a case. There is, then, the case in which A has a sanctioned water-course, in B's land, but instead of using that water-course, he has been using water-course in C's land as a licensee and C has revoked the licence and dismantled the water-course in his land. Can A, in this case, be heard to complain that his supply of canal water has been interrupted? Obviously not, for the canal authorities have sanctioned a watercourse lor his land and if he, without taking those authorities into confidence, uses another water-course, he cannot invoke the help of the law, that is section 68-A . In law, his source of canal water is through B's land, and as that source is intact, there has in law been no interruption of canal water supply.
21. The procedural requirement of making an enquiry under section 68-A is equally important. As the power to make the order is in the Divisional Canal Officer, we should think that the, enquiry must be held by him; the words "after such enquiry as he may deem necessary" do not, in our opinion, contemplate that power can be delegated. What inclines us to construe this provision so strictly is the fact that this power can affect a person's property rights. But even if the power can be delegated, there is no doubt that the person whose land is sought to be used as water-course has a right of hearing before the order restoring the watercourse is made and that the hearing must be given by the Divisional Canal Officer and none else.
22. It should follow, therefore, that the Divisional Canal Officer must, in order to perform his statutory duty, record a clear finding, after making an enquiry, that there has been an interruption of canal water supply. For, if there was no interruption of the canal water supply, or there was no enquiry, in the sense indicated above, and yet an order restoring the water-course was made, then, the order would not be treated as an order under section 68-A. And, if it would not so treated, then, it is not entitled to "remain in force until the dispute is finally settled under section 68........... ". In other words, an order made without fulfilling these conditions precedent will be an order without jurisdiction and liable to be called in question in the civil court. For, even words such as "the order shall be final and shall not be called in question in any court" in statutes, expressly carring the jurisdiction of the civil Court have been held not to apply to acts and orders without or in excess of jurisdiction. "Where the legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent". Abdul Rauf v. Abdul Haid (PLD 1965 S.C.671). We cannot, therefore, impute to the legislature the intention that by saying that the order made by the Divisional Canal Officer" shall remain in force until the dispute is finally settled under section 68" even orders without jurisdiction or in excess of jurisdiction were intended to be saved from challenge in the civil Courts.
23. But if the order be an order with jurisdiction, then it must, as the section says expressly, remain in force until the dispute is finally settled under section 68. That is the ratio of Ch. Zafarullah Khan v.
Pakistan (PLD 1975 S.C.L.) where also the expression "remain in force" occurring in section 68, a provision in pari materia with section 68-A, was interpreted. In Niaz Muhammad V. Abdul Qayyum (1987 C.L.C.2093), the order in question was not challenged on the ground that it was without or in excess of jurisdiction. It was, therefore, il we may say so with respect, correctly decided on its own facts.
24. Though, the question does not arise in this case, yet the learned counsel for the parties invited us to express ourselves on how the parties and the canal authorities should proceed after an order under section 68-A has been made, it seems to us to be clear that the object of enacting section 68-A was to provide for an interim relief in cases otherwise falling under section 68. Therefore, section 68-A is in fact a part of section 68. We should think, therefore, that alter an interim order restoring the dismantled water-course has been validly made under section 68-A, the application under section 68-A should itself be treated as an application under section 68 and the canal authorities should proceed accordingly. Indeed, to prevent the interim order from remaining in force for an indefinate Period, justice and fairness require that the action under section 68 must he completed within a reasonably short time.
25. It is a well settled proposition of law that review, like an appeal and revision, is the creation of law, and unless it is expressly provided, it does not exist. It must, therefore, be shown to exist before a court of authority can claim to exercise it. There is, however, an important distinction between the power to hear an appeal or revision and the power to review. It is that where no appeal or revision is provided in a higher forum, the latter will not have jurisdiction to interfere on any ground, including the ground that the order in question was without jurisdiction or a nullity in law. But as regards the power to review, there are two well recognised exception vouched by high and respectable authority, namely, (1) the power to review an order without jurisdiction. "A court has inherent power to set aside a judgment which it has delivered without jurisdiction". Kofi Forfie V.
Seifah (1958) A.C.59; and (2) the power to review an order obtained by fraud. This latter power is now recognised to vest even in a tribunal of limited and special jurisdiction. Sec Ali Iqtidar V.
Custodian (PLD 1964 Lah.274) and Chief Settlement Commissioner V. Muhammad Fazil (PLD 1975 S.C.331).
26. Here, it is an admitted position that in making the first order dated 28.9.1988, the Divisional Canal Officer had neither made the enquiry himself nor had he afforded a hearing to the respondents herein before making that order. For this reason, that order was ultra vires the Divisional Canal Officer's powers and hence without jurisdiction.. The Divisional Canal Officer had, therefore, rightly reviewed it by his order dated 28.1.1991. By so doing, he had cured a manifest illegality and even if the Divisional Canal Officer had no power of review, the petitioner was not entitled to the discretionary relief under Article 199 of the Constitution. (See Raunaq Ali V. Chief Settlement Commissioner- PLD 1973 S.C. 236, 258).
27. For these reasons, the appeal is dismissed, but the parties are left to bear their own costs.