BASHIR AHMAD Versus STATE

ORDER

Brief facts of the case are that the‑Divisional Canal Officer, Western Bar Division, Vehari vide his order dated 12‑4‑1989 imposed penalty of Ks.41,089 upon the petitioners due to unauthorised use of canal water, through Outlet No.19450/L, `Rajbah 12‑L/3=R; Chak'Na.212/EB, Tehsil and District Vehari. The petitioners challenged the said order, in appeal, before the Additional Commissioner (Revenue), Multan. The case was dismissed on 20‑8‑1989 for non‑prosecution but was revived by the Additional Commissioner on 30‑9‑1989 subject to the payment of cost of Rs.2,500. The petitioners did not comply with the order of the Court resulting in dismissal of appeal on 16‑12‑1989 for non‑compliance of the Court's order. Hence this revision petition under section 35 (5) of the Canal & Drainage Act, 1873.

2. The learned counsel for the petitioners contended that the learned Additional Commissioner (Revenue), Multan Division, was not vested with any powers to impose Rs.2,500 as cost as there was, no such provision in the Canal & Drainage Act and he could only announce the judgment on merits of the appeal. The order was therefore void. A very heavy amount has been imposed as cost on the petitioners and the impugned order had caused miscarriage of justice.

3. The representative of the State stated that the petitioners had preferred an appeal which was dismissed once in default for non‑prosecution. It was restored on the prayer of the petitioners at a cost of Rs.2,500 which was not deposited by the petitioners and, therefore, it was rightly dismissed fir non‑payment of the cost. It was prayed that the revision petition may be dismissed.

4. I have considered the arguments and perused the case record. I do not agree with the contention of the learned counsel for the petitioners that the learned Additional Commissioner was not competent to impose cost on the petitioners due to lack of 'such provision in the Canal and Drainage Act. The proceedings of the Courts of the Commissioners ‑ are regulated as nearly as possible by the Civil Procedure Code, in the absence of ‑any specific provisions) contained in any other relevant law, and therefore the learned Additional Commissioner had the jurisdiction to impose the cost. However, the cost of Rs.2,500 is indeed very heavy for restoring an appeal dismissed in default. Such costs, should not amount to undue or unreasonable penalty especially when the appeal was against‑ penalty of Rs.41,089. I therefore, accept the revision petition, reduce the cost to Rs.500 (rupees rive hundred only) and remand the case to the learned Additional Commissioner (Revenue), Multan Division, Multan, for disposal in accordance with law. The case shall be taken up by the learned Additional Commissioner when the cost of Rs.500 (rupees five hundred) is deposited by the petitioners.

AA./486/R Revision accepted.