MAQBOL BIBI Versus IBRAHIM

ORDER

1. MUHAMMAD AFZAL CHEEMA J.‑‑ ‑The petitioner was refused interim, relief by the order of a learned Single Judge of the Lahore High Court,‑dated 2‑4‑1976, from which leave to appeal is sought. The dispute between the parties relates to the construction of a new watercourses which was sanc tioned by the Divisional Canal Officer on the application of the respondents and had to pass through the land of the petitioner. The matter was referred to the Collector for acquisition of the petitioner's land for purposes of the new watercourse. While the matter was still pending before the Collector, the Canal and Drainage Act was amended by Act XXXII of 1975. One of the amendments introduced was that instead of being straight away referred to the Collector for acquisition of land, the matter would go to the Superin tending Canal Officer in the first instance who might confirm or amend the order of the Divisional Canal Officer. Notwithstanding this change in pro cedure introducing a new forum, the Collector overruled the objections of the petitioner vide order dated 27‑101975 and proceeded to acquire the land. It was this order whose validity is now challenged by the petitioner in a declara tory suit before the Senior Civil Judge, Lyallpur who refused to grant ad interim injunction. Having consistently failed in appeal and revision before the Additional District Judge and the High Court, respectively, the petitioner has approached this Court.

2. The finding given by the High Court on the basis of Adnan Afzal v. Captain Sher Afzal (P L D 196 S C 187) was that the petitioner has an arguable case on the question of retrospectivity of the procedural change in law. However, it was held that the respondents would suffer much more heavily on account of prejudice to their right of irrigation. It was for this reason that in spite of having reversed the finding of the lower appellate Court about the existence of a prima facie case and holding it in favour of the petitioner, she was refused interim relief.

3. It is submitted by the learned counsel that having once found that the petitioner had a prima facie case, the learned Judge should not have refused interim relief on the ground of irreparable loss to the respondent which is based on a mis-appreciation of the correct position. It is submitted that the learned Judge was proceeding on the assumption as if the respondents had no existing source of irrigation and were deprived of this valuable right, although the respondents have been and are receiving water from the previous source before the new watercourse was sanctioned passing through the land of the petitioner. It is contended that before having recourse to a legal procedure for the construction of the new watercourse, the respon dents had forcibly dug out a watercourse, in the lands of the petitioner which had been dismantled but this did not mean that the respondents were left high and dry with no source of irrigation. It is submitted that but for t4is misunderstanding the learned Judge would not have made the impugned order particularly when he had found a prima facie case in favour of the petitioner.

4. Apparently, there is force in the submissions made by the learned counsel. The learned Judge appears to have proceeded on the assumption that with .the dismantling of the watercourse passing through the petitioners land, the respondent' are left with no source of irrigation. He that as it may, however, this Court seldom interferes in interim orders of the High Court passed in exercise of its revisional jurisdiction, which is purely discretionary.

5. The petition is, therefore, dismissed.

6. Petition dismissed.