' The plaintiff as well as the defendant owned land in Chak No, 102/R. B. Tehsil Jaranwala, District Lyallpur. Their lands are irrigated by the water of out-let No, 4908-L Pannoan minor. The plaintiff- appellant made an application before the Divisional Canal Officer concerned for framing a panel warabandi so that he may utilize the share of his water and in case of violation thereof the defendant may be punished. As mentioned in the impugned judgment there exist two watercourses before the warabandi in question was framed as prayed for by the appellant.
Watercourse A. B, as shown in the plaint irrigated the land of the respondent while watercourse B. C.
Irrigated the land of the plaintiffs-appellants. At the time of hearing of the application submitted by the plaintiffs before the Divisional Canal Officer the respondent made an oral request that watercourse A. B. Irrigating his land may be cancelled and instead another watercourse C. D. Be sanctioned in order to supply water to his fields. The Divisional Canal Officer while accepting the application of the plaintiffs for framing panel warabandi as prayed for also sanctioned watercourse C. D. For the sake of the respondent.
2. It is admitted on record that before sanctioning watercourse C. D. No notice was issued to the interested party. The grievance of the plaintiffs-appellants has been that the procedure as laid down in section 68 of the Canal and Drainage Act has not been followed while sanctioning the watercourse in question. According to that no application in writing was made by the respondent in this behalf nor any notice was issued to the ineresting parties and the order sanctioning the watercourse as referred to above was made without hearing the interested persons.
3. It has been argued on hehalf of the respondent that since watercourse C. D. Is not a new watercourse, therefore, no notice was required to be issued to the interested party before it could be sanctioned. It has also been argued that there being no provision in law against the sanction of watercourse on the basis of oral request, the impugned order passed by the Divisional Canal Officer cannot be set aside on that ground.
4. The provision as laid down in section 68 of the Canal and Drainage Act provides that whenever a difference arises between two or more persons with regard to the distribution, use, or maintenance of the watercourse then any such person may apply in writing to the sub-Divisional Canal Officer, who shall give notice to all persons interested and liable to be affected so that they may be heard on a particular day and the matter may be decided thereafter. The other relevant provision of section 20 of the Act provides that whenever application is made to a Divisional Canal Officer for supply of water from a canal through an existing watercourse or for change of course of water supply of any land if he considers it expedient, he shall give notice to all persons interested including the land owners through whose land any link watercourse is to pass, to show cause on a particular day as to why such supply should not be so conveyed. Both the provisions clearly lay down that the relief in this behalf will be sought in writing and not orally The purpose behind this appears to be that the interested parties in the matter in dispute may fully know about the grievance of the applicant and in the light of that they may state their case. Further issuance of notice to the interested parties is a mandatory provision and in case of its noncompliance any order passed by the Canal Authority cannot be maintained. In the present case watercourse has been sanctioned in favour of the respondent on the application of the plaintiffs-appellants for framing panel warabandi. Obviously if it is conceded for arguments sake that the plaintiffs may be the only interested party, the fact remains that at the time when oral request was made by the respondent for sanctioning new watercourse, the plaintiffs had no prior notice in relation thereto.
Since the procedure as laid down in the relevant provision of law has not been followed while sanctioning the new watercourse the impugned order passed by the Canal Authority cannot be maintained. The argument of the learned counsel for the respondent that watercourse 'CD' is not a new one has no substance in the given circumstances of the case. It is admitted on record as well as by the learned District Judge in his impugned judgment that the said watercourse did not exist at the time when the order was passed by the Canal Officer. Since the language used in the relevant provision of the Act is not directory but rather mandatory and the procedure so laid down has not been followed by the Divisional Canal Officer therefore, the learned trial Court rightly decreed the suit of the plaintiffs-appellants and set aside the impugned order judgment and decree passed by the learned lower appellate Court is hereby set aside and that of the learned trial Court restored.
5. The appeal is accepted without any order as to costs.