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Civil Petitions for Special Leave to Appeal Nos. 293 and 294 967, decided on 2nd October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 1lth May 1967, in Petition No. 340 of 1967).
----S. 20‑Construction of pukka nakas (brickwork outlet) resulting in detriment to water rights of persons, without notice as required under S. 20‑Illegal.
A.S Salman and Muhammad Arif, Advocates Supreme Court by M. D. Chowdhary Attorney for Petitioners.
Nemo for Respondents.
Date of hearing 2nd Octobe 1969.
The petitioner is owner of square No. 43 Chak No. 296/HB, Lyallpur. By an order made in 1961, it has been included in the warabandi of outlet No. RD/7463/R resulting in detriment to the water rights of those who were previously sharing those rights among themselves. These persons, i. e. the respondents sued to avoid the new order, and were met with the reply, inter alia, that the order sought to be carried out in 1961, had actually been made in 1952 by the Canal Authorities. The 1952 papers showed that no notice, as required by section 20, Canal and Drainage Act had been issued to the objectors before the order was made. It had remained unexecuted for nine years.
At trial before a 3rd Class Civil Judge, both suits that had been filed were dismissed, but in appeal, a District Judge found that in the proceedings of 1952, the plaintiffs who were allottees of evacuee land commanded by the outlet in question had been ignored. Through the Custodian, these persons had vested rights in the water, by virtue of their occupation and right of cultivation of the land. As they had not been notified before the new mode of watering was order, it was not binding on them. The appeals were accordingly allowed and the suits were decreed. A second appeal before the High Court was dismissed by a learned Single Judge, on the above grounds, in a judgment which also deals with, and rejects, an argument based on the construction of pukka nakkas, i. e. brickwork outlets, in compliance with the order of 1952. It was held that such construction would not be effective as notice to the plaintiffs.
Mr. A. S. Salam has advanced arguments in support of a petition for leave to appeal against the High Court judgment. The plaintiffs have been allowed no more than their proper rights by the Courts below. They are entitled to hold their water‑rights intact until disturbed in due course of law. That course will have to be taken anew, in order to produce the same result effectively.
These petitions are dismissed.
Petitions dismissed.
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