SH. HAKIM ALI, J.-- Challenging the validity, legality and correctness of an order passed on 24.12.2003 by Divisional Canal Officer, Sadigia Division, Bahawalpur under Section 68-A of the Canal and Drainage Act No. VIII of 1873 (hereinafter called as C&DA) by which he had directed the restoration of dismantled 'khal' on the application of one Abdul Majeed through Asghar. A.I a suit for declaration, alongwith prayer of grant of permanent injunction was filed by lftikhar Ahmad, plaintiff in the Court of learned Civil Judge, Bahawalnagar. While instituting the above-mentioned suit, he filed an application for grant of temporary injunction to restrain defendants from implementation of the above-mentioned order dated 24.12.2003 passed by Divisional Canal Officer also. The application was accepted by the learned Civil Judge 1st Class, Bahawalnagar vide order dated 24.1.2004 and the appeal filed against that order by the present revision petitioners failed before the learned Additional District Judge, Bahawalnagar on 17.3.2004. Aggrieved from that order, the petitioners have filed the instant revision petition.
2. To comprehend- the controversy between the parties, the facts as narrated in the pleadings, record, documents attached with the revision petition and rehearsed by the learned counsels in brief are as follows:-
(a) Abdul Majeed, the petitioner, filed an application with the Canal Authorities that a 'khal', which was in existence and continuing in square No. 56, Killa Nos. 3, 4, 5, 3, 8 and 13, and starting from Moga No. 6 Zaman-II, situated in Chak No. 190-M, Tehsil Hasilpur, District Bahawalpur was dismantled by Iftikhar Ahmad and that the aforesaid 'khal', which was being used by him for irrigation purposes for his lands, be got restored at the site.
(b) The Divisional Canal Officer after receipt of this application marked it to his subordinate officials for inquiry. Upon inquiry, the complaint of Abdul Majeed was found genuine. The Divisional Canal Officer issued notices under Section 68-A of the Canal and Drainage Act to both the parties and after hearing both the parties; the Divisional Canal Officer directed the restoration of the dismantled 'khal' by digging it out at the site under Section 68-A of the Canal and Drainage Act on 24.12.2003.
(c) Aggrieved from this order of the Divisional Canal Officer, Iftikhar Ahmad filed the above: mentioned suit for declaration alongwith prayer for permanent injunction in the Civil Court.
(d) The learned Civil Judge 1st Class,. Bahawalnagar passed and interim order prohibiting implementation of the impugned order of the Divisional Canal Officer. This order was upheld by The learned Additional District Judge, Bahawalnagar, also. So, the instant revision petition has been filed in this Court.
3. The learned counsel appearing on behalf of the petitioners submits that the dismantled 'khal' was in existence since time immemorial and the petitioners had got the right to use it. Respondent was not authorized by any law and on the basis of any ethical principle to demolish it. He has further stated that the land underneath the 'khal' was joint owned property between the petitioners and the respondents. Therefore, the plaintiff had got no right to deprive the other joint owner from using it. Impugning the correctness of the finding of learned Additional District Judge, Bahawalnagar, it has been asserted that without application under Section 68, the Divisional Canal Officer could not pass an order under Section 68-A of the Canal and Drainage Act on the basis of an authority reported in 1992 SCMR 613 (Abdul Qayyum and another v. Niaz Muhdmmad and another). Exercising the right of audience, the learned counsel argued that the order passed by learned Additional District Judge was not correct in the eye of law, because no application under Section 68 was pending with the aforesaid Divisional Canal Officer. And if there was any such application presumably pending with the aforesaid Canal Officer, even then application under Section 68-A could be treated as an application under Section 68 of the Canal and Drainage Act.
To elaborate his arguments he has stated that after passing of the order under Section 68-A of the Canal and Drainage Act, the officer had not lost control over the case but had still to decide the dispute finally arising between the parties. For the treatment of an application under Section 68-A of the C&DA as an application under Section 68 of the C&DA also, he has relied upon the ruling reported in PLD 1992 Lah. 370 (Shamas-ud-Din v. Province of Punjab). He has further argued by urging that dismantling of 'khal' without the permission of Canal Authorities could not take place and the order passed by the Divisional Canal Officer was to remain into the field until set aside by a Civil Court. For this purpose he has relied on PLD 1968 Lah. 573 (Badar Din v. Bahadur All and others) and PLD 1962 Lah. 317 (Muhammad Saeed and others v., Fateh Muhammad and others). Learned counsel has further placed reliance on a ruling reported in 1984 CLC 1699 (Abu Bakar and others v.
Province of Punjab and others) to contend that the learned Court below had to consider at this stage, not only the prima facie of the case but the- inconvenience of the party also. When Canal Authorities had ordered the restoration of 'Khal', they had made complete inquiry prior to the passing of such an order with regard to the existence and - dismantling of the 'khal'. In other words, the petitioner claimed that he would suffer more loss than the respondent; as his lands would go dry and he would not be having any chance or alternate arrangement, to irrigate his lands. In the last, he offered that he was ready to pay for the price of the land under the 'khal' if the respondents insisted -upon it.
4. Rebutting the arguments of the learned counsel for the petitioners, it has been replied by the learned counsel for the respondents that there was no application under Section 68 of C&DA and the application under Section 68-A of the C&DA without such an application was not maintainable as laid down by the Hon'ble Supreme Court of Pakistan in 1992 SCMR 613 (Abdul Qayyum and another v. Niaz Muhammad). He has further argued that the application filed before the Divisional Canal Officer was not instituted by any authorized person on behalf of the principal person and, therefore, it was to be rejected by the aforesaid. Divisional Canal Officer. As to the findings, he urges that the conclusions, of both the learned Courts below being unanimous, upon the disputed findings of facts, should not be upset but be upheld in this revisional jurisdiction. As to the continuance of 'khal', the learned counsel submitted that there was no assertion in the pleadings with regard to any right of easement. So, this plea was not available to the petitioner.
5. After scanning the record and hearing the lengthy arguments of the learned counsels, it is better to review by reproduction of both the relevant Sections of the Canal and Drainage Act to understand the philosophy and their impact:- ................
68. Settlement of difference as to mutual rights and liabilities of persons interested in the use of water from a canal outlet.-- (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 water from that outlet or deposit from water-course clearance, of mutual rights and liabilities in that regard, any such person may apply in writing to the Sub- Divisional Canal Officer stating the matter in dispute. The Sub-Divisional Canal Officer shall thereupon proceed in the matter 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 enquiry he shall pass his order thereon unless he transfers (as he is hereby empowered to do) the matter to the Collector who shall thereupon enquiry into and pass his order on the said matter." .................. 68-A. Powers of Canal Officer to restore interrupted supply.-- If canal water-supply of any land is interrupted by dismantling a watercourse 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 disma ntled 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 in force until the dispute is finally settled under Section 68 and if necessary a water-course link is constructed under this Act.
Any change determined for restoration of the water-course of internal 'khal' shall be recoverable from the person at fault as arrear of land revenue".
6. - Section 68 of the Canal and Drainage Act has provided three eventualities for taking cognizance of a case: It envisages differences having been arisen between two or more persons as to mutual rights and liabilities with regard to:-
(i) distribution of water from a Canal outlet,
(ii) construction, use, or maintenance of the water-course supplied with water from that outlet,
(iii) deposit from water-course clearance.
When any one, of the above differences. Arises between the persons interested and affected (according to sub-section (2) of Section 68 C&DA), the Sub-Divisional Canal Officer to whom an application in writing is made shall proceed with the matter in dispute. After notice to the parties, making an inquiry and grant of opportunity of hearing, he shall then pass an order thereon. In other words, provisions of Section 68 of the C&DA as expounded by the apex Court of this country in 1992 SCMR 613 (Abdul Qayyum and another v. Niaz Muhammad and another), refers to final adjudication of the dispute. Sub-section (3) has granted a right of appeal against the above- noted final order of the Sub-Divisional Canal Officer to the Divisional Canal Officer. It may be noted here with benefit that an order u/S. 68 of C&DA is to be passed initially by Sub-Divisional Canal Officer while in Section 68-A, a different Officer has been empowered to take cognizance of it i.e. Divisional Canal Officer. But Section 68-A of the C&DA envisages a situation when a Canal water- supply to any land is interrupted by dismantling a water-course or internal 'khal', then the Divisional Canal Officer upon an application can make an inquiry and can order its restoration as an interim measure, if the complaint of annihilation of a watercourse or the internal 'khal' is found genuine.
The words used in Section 68-A "order interim restoration of the dismantled water-course or the internal 'khal' are important for consideration. These words have shown the nature of the order which has to be passed by D.C.O. The word an interim order testifies that the order passed under Section 68-A is not a final one, but it requires another final order still to be passed by a competent Canal Officer and that the order was passed only for granting a temporary relief, which was an immediate remedial measure to provide prompt relief to a person whose supply of water has been discontinued or disconnected. In the exercise of this jurisdiction, the final rights with regard to the existence or continuance and to use the 'khal' permanently are not to be settled. So, viewed from this angle, this order passed under Section 68-A is not a final one. The words, which are used on another place in Section 68-A supports this view, which are "such order shall remain inforce until the dispute is finally settled under Section 68 and if necessary a water course link is constructed under this Act." So, having held the nature of this order passed under Section 68-A of the C&DA to be of an interim/temporary nature, it had normally to be kept intact even in the Civil Court, as the Canal Authorities had not still decided the case finally of the matters in dispute. After restoration of an internal 'khal' or dismantled water-course, the plaintiff could follow the proceedings under Section 68 of the C&DA and could raise and agitate the dispute of mutual rights and liabilities to be decided, if these were not being commenced upon the application of the other party by the Canal. Authorities. Both the parties in their pleadings have admitted it to be an order having been passed by Divisional Canal Officer under Section 68-A of the C&DA. In para. 7 of the written statement, the petitioner has entered that a separate proceeding under Section 68 C&DA was pending. Even in the impugned order, it has been referred that the digging of the dismantled 'khal' has been ordered under Section 68-A of the C&DA. So, the suit of the plaintiffs, was prima facie, pre-mature. I have minutely perused the contents of the plaint. No where the plaintiff has disputed that the 'khal' in dispute was never in existence prior to the alleged dismantling of it. His version as contained in para. 2 of the plaint is that defendants Nos. 2 and 3 had got another 'khal' for the irrigation of their lands from where they could irrigate their lands. No clear, specific and bold assertion of the above term that no 'khal' at the site exists and that no dismantling has been made, has been found by me in the.
Plaint. Therefore, it, prima facie, gives out an impression that there was a 'khal' in existence, which was found, by Divisional Canal Officer and his subordinate officials too in their inquiry and that it was dismantled. So, keeping in view that the restoration of such a dismantled watercourse or internal 'khal' is not to create a new situation or problem or any permanent right in favour of the petitioners for the benefit of whom the 'khal' was being restored, it was appropriate for the learned Courts below to maintain it as it was not going to affect adversely the respondents. It has still to be determined finally by the competent Canal Authorities as to whether 'Oar in dispute had created a right _of easement in favour of the applicant in accordance with law, or the land was a joint property or the applicant had right to continue with that 'khal' or there was any other Killa numbers or place from where the 'khal' could be sanctioned if the disputed 'khal' was not sanctioned and so many other questions to be resolved. So, all and many other questions keeping in view the provisions of Section 68 of the C&DA were to be decided finally when the parties were granted opportunity of hearing and to present their respective cases before the competent Canal Authorities.
8. As the Canal Authorities have found that the restoration of 'khal' was necessary, so, the inquiry and finding of the Canal Authorities unless shown to be whimsical, capricious, arbitrary or mala fide, it had to be given a due weight. So, seen in this context, the prima facie case, balance of convenience and the third ingredient for grant of ad interim injunction was titling in favour of petitioners and the grant of temporary injunction was to cause more irreparable loss to the petitioners than the respondents. As the learned Courts below have not exercised the jurisdiction correctly and in accordance with settled principles of law as laid down by the superior Courts, for grant of temporary injunction in a case, therefore, accepting this revision petition, I set aside the impugned order dated 17.3.2004 passed by the learned Additional District Judge, which had upheld that of Civil Court.
9. Before parting from this judgment, I would like to add a note that all this discussion and finding shall be considered to have been rendered for the decision of temporary injunction and would not have any repercussion on the final decision and upon the merits of the case. With these observations and directions, the civil revision is disposed of. .