GHAZANFAR KHAN AND Others vs TAJ MUHAMMAD AND Other
This petition for leave to appeal arises out of a civil dispute concerning water rights and warabandi alterations. The core legal question is whether a canal order altering water rights, made without issuing the statutory notice required to affected landowners, is binding upon them and whether subsequent construction of brickwork outlets can substitute for such notice. The Supreme Court held that the lower courts and the High Court correctly decided in favor of the respondents, ruling that the 1952 canal order was legally ineffective against the plaintiffs because they were not given the mandatory notice under Section 20 of the Canal and Drainage Act before their water rights were curtailed. The key principle laid down is that landowners possessing vested water rights cannot be bound by unnotified administrative orders affecting those rights, and any alteration must be strictly preceded by due notice and process of law.
- Is a canal order altering warabandi binding on landowners when issued without the statutory notice required by Section 20 of the Canal and Drainage Act?
- Does the construction of brickwork outlets in compliance with an unnotified order cure the lack of statutory notice to affected parties?
- Are allottees of evacuee land entitled to hold their vested water rights intact until disturbed in due course of law?
- Section 20, Canal and Drainage Act
1. CORNELIUS, C. J.-The petitioner is owner of square No. 43 Chak No. 296/HB, Lyallpur. By an order made in 1961, it has been included in the warabandi of outlet No. RD/7463/R resulting in detriment to the water rights of those who were previously sharing those rights among themselves. These persons, i. e. The respondents sued to avoid the new order, and were met with the reply, inter alia, that the order sought to be carried out in 1961, had actually been made in 1952 by the Canal Authorities. The 1952 papers showed that no notice, as required by section 20, Canal and Drainage Act had been issued to the objectors before the order was made. It had remained unexecuted for nine years.
2. At trial before a 3rd Class Civil Judge, both suits that had been filed were dismissed, but in appeal, a District Judge found that in the proceedings of 1952, the plaintiffs who were allottees of evacuee land commanded by the outlet in question had been ignored. Through the Custodian, these persons had vested rights in the water, by virtue of their occupation and right of cultivation of the land. As they had not been notified before the new mode of watering was order, it was not binding on them. The appeals were accordingly allowed and the suits were decreed. A second appeal before the High Court was dismissed by a learned Single Judge, on the above grounds, in a judgment which also deals with, and rejects, an argument based on the construction of pukka nakkas, i. e. Brickwork outlets, in compliance with the order of 1952. It was held that such construction would not be effective as notice to the plaintiffs.
3. Mr. A. S. Salam has advanced arguments in support of a petition for leave to appeal against the High Court judgment. The plaintiffs have been allowed no more than their proper rights by the Courts below. They are entitled to hold their water-rights intact until disturbed in due course of law.
4. That course will have to be taken anew, in order to produce the same result effectively.
5. These petitions are dismissed.