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(On appeal from the judgment and order of the former High Court of Sind & Baluchistan, Karachi, dated 7‑4‑71 in Constitutional Petition No. 11 of 1971).

Sind Irrigation Act (VII of 1879)‑

‑‑ S. 91‑Change of module‑Management of sluice, outlet or module in canal‑Rests entirely with Government‑None can have any vested right to any particular type of module so long as he receives assured supply of water‑Change by Government of one type of module to another‑Cannot be regarded as a change in source of water supply, origin of supply remaining same‑Section 91, held, not applicable to case and apprehensions that respondent's assured water supply would have decreased without any factual basis.

Gangaram and another v. The Secretary of State for India‑in‑Council (1919) 14 S L R 79 ref.

A. Sattar Sheikh, Assistant Advocate‑General, (Sind) and S. M. Abbas, Advocate‑on‑Record for Appellants.

Khalid M. Ishaq, Advocate and Nizam Ahmad. Advocate‑on‑Record for Respondent.

Date of hearing : 12th January 1982.

MUHAMMAD HALEEM, ACTG. C. J.‑This appeal, by special leave, arises from the judgment of the former High Court of Sind & Baluchistan dated 7th of April 1971, by which Constitutional Petition No. 11 of 1971 was allowed.

The respondent is the owner of agricultural land in Deh Chellaro, Taluka Mirpur Khas. His lands are permanently settled at Chellaro Nos. 1 and 2 which off take directly from Canal West Branch. The original outlets were open type working on no loss condition and could easily be tampered with for drawing more water. It is admitted on both sides that the con ventional supply of water to the lands was 28 % for Kharif and 53 % for Rabi. To avoid the loss of water, a policy decision was taken by the Government of West Pakistan in 1966 to change the open outlets throughout the Province of Sind into scratchly/A. P. M. types of modules. In pursuance of this decision, appellant No. 2 wanted to convert the modules of watercourses, Chellaro Nos. 1 and 2, into scratchly type but the respondent took objection to it as he estimated a decreased dimension of this module which would have resulted in the deprivation of his original percentage of water. Further, the grievance was that appellant No. 2 did not allow the respondent the sanctioned "no loss condition" allowance. The respondent, thereupon, filed Suit No. 8 of 1966, before the Civil Judge, Mirpur Khas and prayed for relief against this illegal act and for injunction to restrain him from converting the modules and the matter ultimately came to the High Court in Civil Revisions Nos. 96 and 97 of 1966.

As there was a dispute in regard to the loss of head for these two types of modules, a Commissioner was appointed to verify it ; and according to his investigation the "loss of head" was Order 11 and Order I and not Order IV and Order II as determined by the second appellant which would have resulted in the decreased supply of water according to the dimensions fixed on that basis. However, before he could submit his report, appellant No. 2 conceded to the "loss of head" as claimed by the respondent, therefore, the respondent withdrew the suit and the dimensions of the modules were increased to 12.2". This arrangement worked for some months when the second appellant again directed his subordinates to visit the site on or about 14th of January 1971, for changing the modules from scratchly to A. P. M. type but had not in fact does so when the present proceedings were initiated in the High Court to challenge the threatened action as being violative of section 91 of the Sind Irrigation Act, 1879, for want of notice. The stand of the appellant was that this section was not applicable as the change of a module did not affect a change in the source of water supply which is the sheet‑anchor for the application of this provision. The High Court held that "any change in the modules from one type to the other is a change in the source of supply of water", hence section 91 was clearly applicable which contemplated not only a notice to the respondent but also to the other Khatedars and compliance of the procedure prescribed therein.

Leave to appeal was granted to consider whether the expression "source of water" includes the outlet or module through which water flows from the watercourses into the lands of the respondent and further as to whether any change in the outlets or modules amounts to a change in the "source of water".

The moot question for consideration is as to whether a change in the type of an outlet is a change in the source of water supply to the land. The High Court, while answering the question in the affirmative, accepted the contention of the respondent that the module, outlet and sluice is a source of water supply under section 91 of the Sind Irrigation Act, 1879, and hence any change in the type of module, outlet or sluice amounts to a change in the source of water supply which cannot be effected without notice to the holder or holders of the land.

On the factual side, the High Court accepted the assertion of the respondent that by introducing the A. P. M., the supply of water was reduced by 50 %..

The word "source" is not defined anywhere in the Act. Therefore, while interpreting it, a meaning has to be given to it in the light of the words used in section 91 itself which runs as under ;‑

"91.‑(1) Whenever it appears to an), Canal Officer not inferior in rank to an Executive Engineer that it is expedient to change the source of water supply of any land for the more efficient distribution of water. he shall serve a notice on the holder or holders of the land and, if he proposes to transfer the source of water‑supply of the land to and: existing watercourse, on the owner or owners of such watercourse also, calling upon them to state in writing their objections, if any, as to the source of alignment or construction of the proposed water course.

(2) (i) If no objection is raised within thirty days from the date of service of the notice, the Canal Officer may change the source of water supply of the land in such manner as he thinks expedient.

(ii') If any objections are received within the said period of three days, the Canal; Officer shall give the holder or holders of the land and the owner or owners of the watercourse a reasonable opportunity of being heard and may, if the said objections are settled to change the source of water supply accordingly.

(iii) If no settlement in respect of the said objections be arrived at between the Canal Officer and the holder or holders of the land and the owner or owners of the watercourse, the Canal Officer shall forthwith refer the matter to the Collector whose decision, which shall be given after giving the holder or holders of the land affected an opportunity of being heard, subject to any orders that may be passed in revision by the Commissioner shall be final and conclusive as regards the alignment and construction of the proposed watercourse and shall not be called in question in any civil Court."

Further, the words "canal" and "watercourse" as defined in the Act also have a bearing while construing this provision. These words are defined as under :‑

"3.‑(1) Canal' includes all canals, channels, tube‑wells, pipes and reservoirs constructed, maintained or controlled by any Government for the supply or storage of water ;

(2) watercourse' means any channel or pipe not maintained at the cost of the Provincial Government which is supplied with water from a canal, and includes all subsidiary works connected with any such channel or pipe, except the sluice or outlet through which water is supplied from a canal to such channel or pipe;".

As will be .seen, section 91 is in two parts. The first part relates to the suitability to change the source of water supply of any land for the more efficient distribution of water which requires the serving of notice on the holder or holders of the land ; and the second part relates to the transfer of the source of water supply of the land to any existing watercourse in which case too, a notice is required to be given to the owner or owners of such watercourse so as to enable him/them to object to the source or alignment or construction of the proposed watercourse. Subsection (2) of section 91 provides a procedure for the disposal of the objections. The words "change the source of water supple" in effect connote a diversion from the existing source of water supply, that is, change of the origin of the water flowing from the canal into the watercourse ; and it is this change of origin which

is contemplated for transfer to any existing watercourse. If the word "source" is given a limited meaning, as only to refer to a change in the sluice, outlet or type of module then no question of the transfer of the source of water supply to any existing watercourse can arise in which case the second part would become redundant. It is this redundancy which has to be avoided so as to give a harmonious interpretation to the words "change the source of water supply". The change of source must also be for the object, namely, more efficient distribution of water. Eminently, the word "distribution" refers to the supply of water to the holders of the land fed by the same water course. Therefore, if the land of one of the holders is in a more advantageous position than the land of another landholder which is at the tail end or on a higher or lower level, or for some other substantial reason is not able to receive supply of water, his right to receive an equitable supply of water will be affected of which assurance is given in section 21(d) of the Act. Clause (f) of section 28, which was inserted by Act 14 of 1931 also lend3 a pointer to this interpretation. The word "expedient" which proceeds the words "change the source of water supply" has a direct nexus to the efficient distribution of water and it is only when it is found suitable to achieve that end that the diversion of source is resorted to.

Even before the insertion of this and the other provisions by the Sind Act 14 of 1931, section 31 provided a relief by way of compensation on any change in the dimension of the outlet or sluice resulting in the diminution of the assured water supply or by remission of the water rate payable by the holder. Further, as the outlet or source was expressly excluded from the definition of the word "watercourse", its size, accordingly, was a matter solely for the Government to determine which maintained the canals so long the holder or holders of the land got their assured, supply of water. If, therefore, the threatened action had resulted in the diminution of the water supply by the change in the type of the module, a relief was provided by the Act. See Gangaram and another v. The Secretary of State for India in Council (1919) 14 S L R 79. Hence the case could not fall within the realm of section 91 which was enacted for a different contingency. Here, all that was sought to] be done was to change one type of module to another which required heavy masonry work for fixing it. This change in the type of module cannot be regarded as a change in the source of water supply for the origin of the supply remains the same ; and it is the outlet which is separately designed to provide water. Such and the other provisions for irrigating land which came under' the command of Loyd Barrage Canals were inserted in the Sind Irrigation Act, 1879, by Sind Act XIV of '.931 and Act XV of 1933 to make a provision for the removal of inequities in the distribution of water supply in the system of irrigation which was changed for non‑perennial to perennial canals by the construction of Lloyds Barrage Canals. This is evident not only by section 91 but also by sections 92, 92‑A, 92‑B and 93 of the Act which follow thereafter and relate to the construction of new watercourses or those in place of the existing ones and for the estimation and distribution of the cost of the cons truction on the holders of the land. As such section 91 will have not application as the management of the sluice, outlet or module in the canal is entirely with the Government and no one can have any vested right to any particular type of module so long he receives the assured1B supply of water. In case there is a diminution in the assured supply of water, the remedy is provided by section 31. As in the present case, the type of module was not changed, hence the apprehension that his assured water supply, would have decreased had no factual basis. Therefore, no ,cause of actin had accrued to the appellant to file the Constitutional Petition on the misplaced assumption that section 91 was applicable to the case. The High Court did not construe section 91 from this angle but relied on the literal meaning of the words "sluice" or "outlet" divorced from the language of the provision itself.

In the result, the appeal is allowed and the order of the High Court is set aside. The writ issued is recalled. There will be no order as to costs.

S. A. H. Appeal allowed.

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