REHMAT WAZIR Versus SHER AFZAL

SARDAR MUHAMMAD RAZA KHAN, J.- -- Rehmat Wazir and three others in their capacity as representatives of village Norori Kosht, Tehsil Morkoh, District Chitral have called into question the judgment, dated 13-1-2003 passed by an Honourable Division Bench of Peshawar High Court upholding a declaratory decree in favour of the respondents and further holding it to be executable. Leave to appeal is sought.

2. The respondents, also in representatives capacity, had brought a suit against the petitioners for a declaration as well as permanent injunction, to the effect that they are entitled to 4/5 share of water from the disputed water channel/canal while the petitioners were entitled to 1/5 share. After recording evidence pro and contra, the trial Court granted the decree as prayed for which was upheld by the Appellate Court. During execution proceedings an objection was raised qua the executability of the decree. This objection was turned down by the executing Court as well as the Appellate Court. The petitioners filed a writ petition to the same effect which also was dismissed and hence this petition.

3. It is a matter of law settled by this Court in Ghulam Muhammad s case PLD 1963 SC 265 that not the judgment but the decree is executable and executed . In the instant case the relief of permanent injunction is not granted to the plaintiffs. The actual relief granted in verbatim is to the effect that

The above words undisputedly indicate that only a right to use the water is declared to the extent it is prayed for. For all intents and purposes, the one in hand is a pure declaratory decree which could not be executed in the wake of the fact that relief of permanent injunction is declined.

4. The above right, however, is made subject to any final determination by the authorities under the relevant law i.e. Canal and Drainage Act of 1873. It stands extended to Chitral with effect from 20-5-1974 . To determine the irrigation rights of different people and to prepare a Wara Bandi accordingly under section 68 of Canal and Drainage Act, is the exclusive job of the authorities under the said Act who, till the finalization of Wara Bandi , can make interim arrangements as well. This being the exclusive job of the Authorities concerned, a Civil Court is barred to determine such rights. This principle was endorsed by this Court in Bashir Ahmad s case 1996 SCMR 536, holding that disputes with regard to supply of water or apportionment of water were to be decided by Canal Authorities under the provisions of Canal and Drainage Act, 1873. The direction by the High Court of sanctioning of new Khal was thus, declared without jurisdiction. In the case in hand, the legal impediment becomes, rather, more pronounced when one is confronted with a suit filed without the impleadment of any of the authorities under the Act.

5. To resolve disputes with regard to supply of water or appointment thereof is the exclusive job assigned to the authorities concerned under section 68 of Canal and Drainage Act. When such dispute is pending, the authorities can also make interim arrangements, if need be, under section 68-A of the Act. In Abdul Qayyum s case 1992 SCMR 613 this Court has elaborately dealt with the implications involved.

6. In the circumstances of the present case, it is not known as to under what law the trial Court took upon itself to decide the irrigation rights of the people despite the hard fact that the Canal and Drainage Act, 1873, stood enforced with effect from 20-5-1974 . It may be recalled that the present suit is brought 20 years after the extension of the above law. It is also not known as to how a declaratory decree simplicitor was considered executable.

7. Confronted with this situation and having realized the legal implications and consequences involved, the learned counsel on either side agreed that a direction be issued to the authorities for preparing Wara Bandi within three months.

8. Accordingly, the instant petition, after conversion into appeal is hereby accepted. The Secretary Irrigation, N.-W.F.P. and the authorities concerned under Canal and Drainage Act of 1873 are hereby directed to prepare a Wara Bandi in accordance with law within three months from the receipt of this order and till then none of the parties would be allowed to use the water which, it is informed, is not otherwise available during the season. After the season is over, the authorities under the Act can make interim arrangement as provided under the law.

S.A.K./R-29/S Appeal accepted.