' The dispute relates to 'Warabandi' of 'Moga' No,11017/L Rajbah Dhudhi minor Chak No,215 R.B. Hafiz Abad Division Lyallpur sanctioned on 3-4-1965. The respondents filed a declaratory suit to declare this 'Warabandi' illegal, void and liable to be set aside. It is averred in the plaint that 'Nikal' water was sanctioned for square No,18 in the year 1934 and since then the respondents/plaintiffs were getting the same. The D.C.O. On 4-6-1962 sanctioned 'Warabandi' and the 'Nikal' water was sanctioned to Square No,18. Again the D.C.O. Sanctioned 'Nikal' water to Squares Nos.28 and 29 vide his order dated 3-4-1965. The grievance of the respondents/plaintiffs in the suit was that the appellant never mentioned in their application, submitted before the Canal Authorities, that the 'Nikal' water be sanctioned to them, and thus the D.C.O. Was not competent to sanction 'Nikal' water when there was not request or prayer by the appellants. The suit was contested and the trial Court framed the following issues on the pleadings of the parties:--
(1) Whether order dated 3-4-1965 passed by the Divisional Canal Officer, Hafiz Abad Division is illegal, unjust and ultra vires and is ineffective against the rights of the plaintiffs?
(2) Relief.
2. The learned Trial Court after discussing the evidence of parties and record produced before it, came to the conclusion that 'Nikal' water was rightly and correctly given to appellant No,1 and decided issue No,1 against the plaintiffs and as a result of finding on the above mentioned issue, the suit of the plaintiffs/respondents was dismissed.
3. The respondents feeling aggrieved of the judgment and decree passed by the learned Trial Court filed an appeal before the learned District Judge, which was accepted vide judgment dated 17-3-1969 and the suit of the plaintiffs was decreed as prayed for. In the present appeal the judgment and decree dated 17-3-1969 has been assailed.
4. The learned counsel for appellants submits that the land of the appellants/defendants is situated at the farthest end and the appellants were entitled to 'Nikal' water being the owner of land at the disputed Nakkah. It is further argued that the Canal Authorities are best judge in regard to the distribution of the water in a particular outlet. Under Rule 8 of the Irrigation Manual owners at the tail-end were entitled to 'Nikal' water. The learned counsel further submits that the disputed 'Warabandi' was sanctioned in the year 1962 and there were a large number of shareholders, whose land is being irrigated through the outlet, but no body except respondents who are 2 or 3 in numbers have raised any objection, He further submits that under section 68 of the Canal & Drainage Act, when any land is included in the Canal commanded area, it is the duty of Canal Authorities to re-schedule the distribution of the water so as to accommodate all the shareholders.
This being the position the suit of the plaintiffs/respondents was rightly dismissed by the learned Trial Court and the learned District Judge has interfered in appeal only on the ground that 'Nikal' water was not specifically claimed and nothing has been said on merits of the case.
5. The learned counsel for respondents has argued that no application or prayer for 'Nikal' water was ever made to the D.C.O. And the D.C.O. Has travelled beyond his jurisdiction to award the same which was never prayed for as this amounts to amendment in 'Warabandi'. According to the learned counsel the question of 'Nikal' water was decided as far back as in the year 1934 and the same was confirmed in the year 1962. Both these orders have not been challenged before any competent Authority, hence that same have attained finality in the eye of law. He further submits that the application before Sub-Divisional Canal Officer was for effecting the modification of 'Warabandi' and there was no dispute pending with the Canal Authorities about the distribution of 'Nikal' water.
6. There is absolutely no dispute about the fact that the order passed by the D.C.O. Under section 68 of the Canal & Drainage Act, 1873 shall be final as to use and distribution of water for any sown or standing crop at the time of such order is made. The Divisional Canal Officer has got exclusive jurisdiction to settle and decide the dispute relating to 'Warabandi' and distribution of Nikal water is also within the competence of the said Officer. The Civil Courts will have no powers to set aside the order so far as it relates to distribution of water for any crop sown or standing at the time of order.
The prohibition is absolute and the Civil Courts are completely debarred from interfering with the order to that extent. However, the powers to set aside the order has not been completely taken away from the Civil Courts and it has been provided that the order remain in force until it is set aside by the decree of Civil Court. The word 'until' is very significant. It leaves no space for any doubt that the order passed by the Divisional Canal Officer shall remaining force until it is set aside by the decree of Civil Court.
7. While the Civil Court can set aside the order of the Canal Authorities passed under section 68 on the ground that it has caused legal injury to some persons legal rights, it cannot take upon itself to draw up new order of rotation. If it does not draw an order of rotation it would be necessary to implied all the other land owners concerned. The Civil Courts are not Canal Officers. Once a defect in the order is rectified it is for the Canal Officer to draw up a new list of rotation. Nevertheless, the Courts have powers to go into the question whether the order of the Canal Officer has resulted in stoppage of the water to which the party is entitled.
' The instructions issued for preparation of Warabandi reads as under:-- "Instructions for Warabandi Preparation. ' Instruction 8 ' If there be two or more 'Nakkas' at the tail end treated as at the tail under Rule 2 and 3, the Nikal except as provided under rule 15 shall be given to each shareholder owning land on these Nakkas."
' Instructions 13 and 14 further clarify the position that:- "Any shareholder entitled to 'Nikal' shall receive the 'Nikal' water of length up to 3300 feet without deduction from his 'Wari' and if the length of Nikal to which a shareholder is entitled exceed 3300 feet deduction at the rate of 15 minutes for every 1100 feet length in cxce of the free allowance of rule 13 shall be made from 'wari' calculation being made to the nearest 1100 feet."
8. Under Canal & Drainage Rules (Rules under sections 75 and 36) (Gazette of West Pakistan Part-1, 27 and 36) under heading: "F-INSTRUCTIONS FOR THE GUIDANCE OF CANAL OFFICER FOR PREPARATION AND MODIFICATION OF WARABANDI.
' Section 11 reads as follows:- "Form of Warabandi'"
' The Warabandi should be arranged in tabular form showing the following columns; 1................
2.............
8. Remarks in this Column 'and addition or deduction' as per column 6 and any order for 'Nikal' will be made and every such entry will be signed and dated by the Divisional Canal Officer."
9. From the above discussion I feel no hesitation in holding that the dispute of 'Nikal' water cannot be treated as independent proceedings as the same is a part of 'Warabandi' and every share holder in 'Moga' has a right to get his dispute settled by way of making application under section 68 of the Canal & Drainage Act. If the D.C.O. After conducting inquiry comes to the conclusion that some modification is required in 'Warabandi' he can certainly pass an appropriate order allocating share in Nikal water also. The dispute about the distribution of Nikal water can be decided by the Divisional Canal Officer at the time of preparation or modification of 'Warabandi' as the same are not independent proceeding and very much connected with the 'Warabandi'. Thus, the order passed by D.C.O. In the given circumstances cannot be declared as illegal and void. However, as I have observed above, the Civil Courts are competent to examine the vires of any order passed by the D.C.O. And if found illegal or void it can be declared as such by them.
10. In the light of the above discussion, this appeal is accepted and the judgment and decree of the Lower Appellate Court is set aside and while upholding the judgment of trial Court the suit of respondents/plaintiff is dismissed. The parties shall bear their own costs.