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Regular Second Appeal No. 758 of 1965, decided on 7th December 1967.
S. 68‑Words "until set aside by the decree of a Civil Court"‑Civil Court can only set aside order of Canal Officer if it is wrong, illegal or ultra vires but cannot convert itself into a Canal Officer and fix new warabandi itself‑Civil Procedure Code (V of 1508), S. 9.
Where the question was "Whether under section 68 of the Canal and Drainage Act 1873, a Civil Court has the jurisdiction to set on the judgment of the Canal Officer and consider the panel warabandi itself or it can only set aside the order of the Canal Officer if it is not according to law "
Held: From the reading of section 68 of the Canal and Drainage Act, 1873 it appears that the intention of the Legislature is to authorise Civil Courts to set aside the order of the Canal Officer by way of a decree, and they are not vested with the powers to determine the dispute under section 68 on merits. If it was intended that the Civil Courts should decide the issue, then in such a case the words in the section should have been "until it is finally decided" by a Civil Court and not the one which halve been used, "until set aside by the decree of a Civil Court". Certainly, Canal Officers are in a better position to determine the panel H7arabandi, as they have the privilege to go to the spot and actually are conversant with the feasibility of the flow of water. Obviously Civil Court cannot perform the function of a Canal Officer. It can only set aside the order if it is illegal. For instance, if it is against the rules or against the principle of natural justice, or any other allied cause. It is impossible for Civil Courts to go into the difficult mock of allocation of turns as if they were Canal Officers. They are only concerned with the legal rights of the parties; and if by reason of injury to some person's legal rights an order passed under section 68 is found to be defective, the order can only be set aside as a whole and it is then for the Canal Officer to draw up a new list of turns from which the defect has been removed.
Ramji Lal, etc. v. Local Government, Punjab (1945) 47 P L R 73 ref.
Kadir Bakhsh v. Bhagat Ram and others 71 P R 1888; Mahtab Singh v. Hakim and others 114 P R 1888; Surdar Balwant Singh and another v. Sardarani Basanat Kaur and another A I R 1937 Lab. 448; Hetam Lambardar v. Mokha P L D 1956 Lab. 490; Shahab‑ud‑Din v. Muhammad Sharif and others P L D 1958 Lab. 333; Muhammad Ishaq v. Muhammad and 28 others P L D 1958 Lab. 717; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi P L D 1965 S C 698 and Secretary of State v. Mask & Co. A I R 1940 P C 105 considered.
S. 100‑New plea- Cannot be allowed to be taken in second appeal.
M. Aslam Chatha for Appellant.
Raja Muhammad Sabbir for Raja Muhammad Anwar (Raja Muhammad Anwar on 1st December 1967) for Respondents.
Dates of hearing : 22nd, 24th, 27th November and 1st December 1967.
Badar Din has challenged the judgment and decree of the learned Additional District Judge, Lyallpur, dated the 30th June 1965, whereby he affirmed the order of the trial Court dated 6‑10‑1964, by way of this Second Appeal.
2. The facts of the case are that the plaintiff's Bahadur Ali, Nawab Din and Mst. Rasool Bibi filed a suit for a declaration that plaintiff No. 3 is entitled to Nikal of the out‑let for her lance in square No. 33, Killas 3/2, 4 to 7,8/2, 13/2, 14, and that turn of Talab of Killa No. 23 of square No. 44 be deemed as fixed after the turn of plaintiffs Nos. 1 and 2, in square No. 54, should follow the turn of Talab in Killa No. 23, square No. 44, and that the order dated 7‑12‑1963, passed by the Divisional Canal Officer, Hafizabad Division, Lyallpur, fixing the panel warabandi of out‑let R. D. 18985/L, Auqual Distributory, Chak No. 137, R. B. Tahsil and District, Lyallpur, is null and void and ineffective against the interests of the plaintiffs, with perpetual injunction that the defendants be restrained from interfering in use of Nikal of plaintiff No. 3, in square No. 33, and be further restrained from interfering in the turn of Wari of square No. 54 and Talab to the above extent, 2‑A. There were a large number of shareholders in this case and summonses were issued to them, but none of them appeared except the defendants. Therefire, they were procee3ed against ex parte.
3. The order of the Divisional Canal Officer, dated 7‑12‑1963, fixing the warabandi under section 68 of the Canal and Drainage Act (VIII of 1873), was impugned as illegal, unjust and ultra vires. The plaintiffs claimed that their square No. 33 lies at the back of the water‑course, while the land of the defendant No. 1 in square No. 32 lies at the tail of the main water‑course, and Nikal should have been granted to the plaintiffs. The turn of squares should have also been different from the one which has been sanctioned.
4. The suit was resisted by the defendants, and on the pleadings of the parties, the following issues were framed:
(i) Whether the order dated 7‑12‑1963, passed by the D. C. O., Hafizabad Division, Lyallpur, is null and void and ineffective against the interest of the plaintiffs for the reasons stated in para. No. 3 of the plaint O. P. P.
(ii) Whether the valuation of the suit, E. P. P., for the purposes of court‑fee and jurisdiction is not correct, if so, what is the correct valuation O. P. D.
(iii) Whether the suit in its present form is not maintain able If so, what is the proper form O. P. P.
(iv) Relief.
5. After recording the evidence of the parties, the learned trial Judge decreed the suit for a declaration to the effect that square No. 33 is entitled to a Nikal and the order of the Divisional Canal Officer, Hafizabad Division, Lyallpur, dated 7‑12‑1963, was null and void and ineffective against the plaintiffs' right, and as a consequential relief defendant No. 1 was restrained through a perpetual injunction to use the Nikal, which was allowed to plaintiff No. 3.
6. The learned Additional District Judge, Lyallpur, dis missed the appeal on 30‑6‑1965, Hence the Second Appeal.
7. The sole question which arises for determination in this appeal is whether a Civil Court has the jurisdiction to sit on the judgment of tile Canal Officer and consider the panel warabandi itself, or it can only set it aside if it is not according to law. Section 68 of the Canal Drainage Act, 1873, is reproduced as under:‑
"Whenever a difference arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a water‑course, any such person may apply in writing to the Division Canal Officer stating the matter in dispute. Such officer shall thereupon give notice to the other persons interested that, on a day to be named in such notice, he will proceed to inquire 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 inquire into and pass his order on the said matter.
Such order 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 set aside by the decree of a Civil Court."
From the reading of this section, it appears that the intention of the Legislature is to authorise Civil Courts to set aside the order of the Canal Officer by way of a decree, and are not vested with the powers to determine the dispute under section 68 on merits. If it was intended that the Civil Courts should decide the issue, then in such a case the words in the section should have been " until it is finally decided" by a Civil Court and not the one which have been used, "Until set aside by the decree of a Civil Court". Certainly, Canal Officers are in a better position to determine the panel warabaidi, as they have the privilege to go to the spot and actually are cenversant with the feasibility of the flow of water. Obviously Civil Court cannot perform the function of a Canal Officer. It can only set aside the order if it is illegal. For instance, if it is against the rules or against the principle of natural justice, or any other allied cause. I am fortified in this view by a Single Bench Judgment of this Court in Ramji Lal, etc. v. Local Government, Punjab ((1945) 47 P L R 73) in which Beckett, J. held that it is impossible for Civil Courts to go into the difficult work of allocation of turns as if they were Canal Officers. They are only concerned with the legal rights of the parties; and if by reason of injury to some person's legal rights an order passed under section 68 is found to be defective, the order can only be set aside as a whole and it is then for the Canal Officer to draw up a new list of turns from which the defect has been removed.
8. Raja Muhammad Anwar, learned counsel appearing on behalf of the respondents in this case submits that if a Civil Court is competent to set aside the order, it is certainly competent to finally determine the dispute. He cited the following authorities in support of his contention:
(i) Kadir Bakhsh v. Bhagat Ram and others 71 P R 1888.
(ii) Mehtab Singh v. Hakim and others 114 P R 1888.
(iii) Sardar Balwant Singh and another v. Sardarni Basanat Kaur and another A I R 1937 Lah. 448.
(iv) Hetam Lambardar v. Mokha P L D 1956 Lah. 490.
(v) Shahab‑ud‑Din v. Muhammad Sharif and others P L D 1958 Lah. 333.
(vi) Muhammad Ishaq v. Muhammad and 28 others P L D 1958 Lah. 717.
In 71 P R 1888, Rattigan and Roe, JJ. were dealing with section 20 of the Northern India Canal and Drainage Act (VIII of 187 3). The learned Judges held that an order passed by a Divisional Caral Officer under section 20 of Act VIII of 1873, which fully complies with all the requirements of that section is, when confirmed by the Superintending Canal Officer, binding in the sense that it is not liable to be called in question in a Civil Court. In the head‑note, section 68 is also mentioned alongwith section 20. However, in a small paragraph on page 186 of the book, there is an observation:
"Section 68 on the other hand deals with disputes between persons already possessing shares in a water‑course as to "their mutual rights and liabilities", and all that the Canal Officer is empowered to do is to effect a temporary settlement of the dispute which will hold good until the parties can obtain a permanent one from the ordinary Courts."
It is not clear from the judgment how the learned Judges made this observation in view of the wording of the section and their own decision in the case.
9. In 114 P R 1888, a suit was brought by the plaintiffs who were the inhabitants of one village to have their right decreed to bring a canal cut in a certain line across the lands of the defen dants' villages. It was held that the Civil Court had no jurisdiction whatever over such a case, the right alleged being a creation of the Canal Act, which also provides the manner in which such right is to be acquired, viz. by application to the Divisional Canal officer under section 21 of the Act. In this case, section 68 of the Act has not been considered at all.
10. A Division Bench, consisting of Tek Chand and Skemp, JJ. in A I R 1937 Lahore 448, held:
"Where a party who is aggrieved by an order of Executive Engineer passed under section 68, Northern India Canal and Drainage Act, granting an application for a new warabandi brings a suit in a Civil Court to set it aside the burden of sowing that the order is unjust and inequitable or otherwise improper lies on him."
Even in this case, it has not been held that the Civil Court is to finally determine the dispute between the parties under section 68 of the Act. Power of Civil Court regarding setting aside such order seems to have been examined.
11. In P L D 1956 Lah. 490, Kaikaus, J. was dealing with section 70 read with section 3 of the Northern India Canal and Drainage Act, 1873. It has no relevancy to section 68.
12. In P L D 1958 Lah. 333, Kaikaus, J. examined the question as to when the Canal Officer can pass an order under section 68 of the Act. It was held that the decision of the Canal Officer, which is not challenged before the Court, same dispute cannot be decided over again by the Canal Officer. In Muhammad Ishaq v. Muhammad and others (P L D 1958 Lah. 717), the question of grant of temporary injunction regarding the preservance of status quo till the decision of the suit in Civil Court challenging the warabandi under section 68, was examined by Masud Ahmad, J.
13. In none of the authorities, referred to above, it has bee‑n decided as to whether the Civil Court can finally decide the dispute under section 68 of the Canal and Drainage Act, 1873, between the parties. All that has been held is the com petency of the Civil Court regarding the setting aside of the Feral warabandi fixed by the Canal Officer under section 68.
14. Learned counsel then cited, Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (P L D 1965 S.C 698) and Secretary of State v. Mask & Co. (AIR1940PC105) in support of his contention that the Civil Court can finally determine such a dispute. Their Lordships of the Supreme Court in Muhammad Jamil Asghar's case (now Mr. Justice Muhammad Jamil Asghar), held ;
"So far as special judicial tribunals are concerned they are given jurisdiction to determine certain facts but they are not Judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. It is possible, of course, that special tribunal may be made the Judge of its own jurisdiction, but this would be a very exceptional provision and one which should be made by altogether clear words. However, with respect to mala fides, the jurisdiction of the Civil Court can never betaken away for a mala fide act is in its very nature an illegal and void act and the Civil Court can always pronounce an act to be mala fide and therefore void."
Similarly, in Secretary of State v. Mask & Co. it was held :
"The exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
There is obviously no dispute about the finding of the Supreme Court and the Privy Council. Of course Civil Court can come to the rescue of a litigant who has been deprived of his right by quasi‑judicial tribunal by violating the procedure laid down for the determination of the dispute or the absence or excess of jurisdiction and finally if such an order is passed with mala fide intention. That would mean that the Civil Court can only set aside the order and cannot determine the dispute itself. I, there fore, hold that the Civil Court has the jurisdiction to set aside the order of the Canal Officer, if it is wrong, illegal or ultra vires, but certainly cannot convert itself into a Canal Officer and fix new warabandi.
15. Applying this principle to the facts of the present case, certainly the order of the Divisional Canal Officer dated 7‑12‑1963, fixing the panel warabandi could be declared as ultra vires and ineffective by the Civil Court, but it could not decide as to who is entitled to Nikal, especially when the oral evidence led by the parties has been discarded.
16. Mr. Aslam Chatha, learned counsel appearing on behalf of the appellant, says that in 1926, both the square Nos. 32 and 33, belonging to the parties, were getting Nikal water by rotation according to Exh. P. 1, as provided by paragraph 8 of Appendix E, to P. W. D. Punjab (Irrigation Branch) Revenue Manual, but it was subsequently given to his clients in view of the first part of the paragragh. There was, therefore, no illegality in the order passed by the Divisional Canal Officer, and the Civil Court could not grant the lead Nikal to the plaintiff‑respondents, and in any case the Civil Court should have kept up the practice of 1926. Since this was not the specific plea of the parties before the Courts below, such a plea cannot now be taken in the Second Appeal.
17. Lastly, Raja Muhammad Anwar, submits that even if the decree has been passed by the Civil Courts in favour of the plaintiff‑respondents, the appellant can still approach the canal authorities for the determination of the dispute under section 68, and till then the decree granted in their favour should not be disturbed. Since I have already held that Civil Court cannot determine the dispute itself under section 68, such a decree cannot be allowed to remain in force.
18. The result is that I accept this appeal and grant a declaration to the effect that the order dated 7‑12‑1963, of the Divisional Canal Officer is ultra vires and illegal and is set aside, but the plaintiff‑respondents would not be entitled to the perpetual injunction prayed for in the suit for the use of Nikal. Such a matter will be decided by the Canal Officer afresh under section 68 of the Canal and. Drainage Act. As a complicated question of law is involved in this appeal, I would allow the parties to bear their own costs.
K.B.A. Appeal accepted.
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