ZULFIQAR Versus PUNJAB PROVINCE
This Civil Revision impugns the judgment/decree dated the 14th of March, 1987, of the learned Additional District Judge, Faisalabad, whereby he accepted the respondents/defendant's appeal and dismissed the petitioners' /plaintiffs' suit with costs.
2. The land measuring 12.94 acres in dispute allotted to the petitioners‑plaintiffs on the 3rd of December, 1956, under the Grow Food Scheme was allegedly receiving water from the outlet No. RD 12375/TRF Dhabanwala Chak No. 269/RB, Tehsil and District Lyallpur (Faisalabad) under a short statement since 19511 and later in pursuance of Warabandi initially sanctioned in 1855 and repeated subsequently on the 5th of April, 1966, and the 8th of May, 1974. The petitioners were allowed proprietary rights on the 18th of June, 1974, whereupon a few shareholders moved the Sub‑Divisional Canal Officer to exclude this area from the 'Warabandi' but their application was rejected. They appealed before the Divisional Canal Officer who dismissed the same on the 23rd of December, 1974, and his order was challenged in a suit which was still pending. The Divisional Canal Officer additionally passed an order dated the 23rd of December, 1974, under section 20 of the Canal and Drainage Act, 1873 to formally include this area in the C.C.A. as it had been receiving canal water under section 68 of the said Act ever since 1955. This order was submitted to the S. E. for confirmation or modification, if any, in terms of section 20 i‑bid, but he after having kept it with himself for six months, set it aside without giving notice to the petitioners and even without assigning any cogent reason. The petitioners' grievance was that they were condemned unheard and further that the reason for setting aside the order of the D.C. 0., namely acting upon an executive order of the Secretary, Irrigation Department, banning inclusion 5f further areas in the C.C.A. was legally not tenable in terms of the aforesaid provisions of law. They maintained that the S.E. was bound to confirm it as it was not an area asking for "Warabandi' freshly. They sought a declaration in the suit that the order of the S.E. was bad in law and that they were entitled to get their area included in the C.C.A. so as to continue receiving water from the outlet as before.
3. The suit was resisted maintaining that mere inclusion of this area in "Warabandi' under section 68 did not necessarily authorise it to be included in the C.C.A. It was not denied that the decision by the S.E: was made in disregard of any provision of the Act.
4. Appropriate issues were framed. The trial Court decreed the suit but in appeal it was reversed.
5. Ch. Hamid‑ud‑Din for the petitioners bitterly criticised the impugned order primarily on the ground that it was passed without affording an opportunity to them. Reading out section 20, he spelt out that a party objecting to the order of the D.C.O. had to be given an opportunity and that a fortiori it meant to be the party against whom the ‑S.E. was inclined to pass the order. He submitted that since the order of the D.C.O. was in favour of the petitioners, they could not possibly object to it, and, of course, as a matter of natural justice they should have been asked to explain why not to reverse it. The order itself does not indicate if, they were offered any such opportunity. Abdul Wadud Khan v. Chief Land Commissioner PLD 1983 SC 183 was cited in support of the contention that rule of natural justice has to be imported in a Statute where any public functionary while exercising its powers passes an order adverse to a party. In this case attention was drawn to para. 2 of the plaint at page 34 and its corresponding reply in the written statement at page 39 whereby the factum of this area receiving canal water since 1955 was admitted. Counsel urged that keeping in mind such a long course of period of the supply of water for this area, there was all the more need to afford an opportunity to the petitioners of being heard when it was sought to be disrupted. Such a view was said to have been taken in Muhammad Ismali v. Muhammad Saddiq and 7 others (1971 S C M R 653) where the case exactly fell under section 20 of the Canal and Drainage Act. A notice to discontinue supply of water to an area already receiving it was considered necessary.
6. Ch. Muhammad Hassan for the respondents in reply maintained that so far the supply of water for the area was unauthorised and indeed based upon fraud, as remarked ‑by the S.E. in the impugned order. He canvassed that the officer was well within his right to have put an end to the fraud or the act of stealing on the part of the petitioners and that they had no vested right to ask for a show‑cause notice. He tried to distinguish Muhammad Ismail's case on the ground that there, the area had already been formally included in the C.C.A. as also the "Warabandi".
7. When once the supply of water for the area since 1950 was admitted, it behoved the S. E. to have called upon the petitioners to show‑cause why it should not be discontinued. In fact, "Warabandi' was repeated 4‑5 times thereby the supply of water to the petitioners was upheld. May be that the act of formally including this area in the C.C.A. was something merely consequential. It cannot be easily accepted that "Warabandi' repeated 4‑5 times at intervals‑ reflected an act of stealing water or committing fraud on the part of the petitioners in that context. The observation made by the S.E. in the‑impugned order as to the petitioners committing fraud all the more called for a show‑cause notice because this was an aspersion cast against them behind their back and amounted to condemning them unheard.
8. The Secretary's order or even those of the Minister did not matter much in the hierarchy of the Canal and Drainage Act. If a piece of land was receiving water from this outlet for many years virtually it could claim to be commanded area. The act of its inclusion in the C . C . A . appeared to be a mere formality involving no new incident of extending supply of water for the first time. I do not think that Muhammad Ismail's case could be distinguished on principle. It required a show‑cause notice for discontinuing the supply and exactly similar were the events of the present case requiring such .a notice before passing an adverse order against the petitioners.
9. For the above reasons, the revision petition is accepted. The order of the learned Additional District Judge assailed ‑in it is sets aside. The petitioners' suit is decreed to the extent that the order of the S.E. challenged therein was bad in law inasmuch as it had! been passed without. hearing them. The consequence of this decree shall be that the S.E. will pass a fresh order after affording the petitioners an opportunity of being heard.
H.B.T./Z‑54/L Order accordingly.