ABDUL KARIM vs MUHAMMAD RIAZ and 2 others
This matter concerns a petition for leave to appeal against a High Court judgment that dismissed a Civil Revision. The underlying dispute originated from a suit for declaration and perpetual injunction regarding the utilization of 'Nikkal' (tail discharge from a water-course), previously determined under the Canal and Drainage Act, 1873. The petitioner, a co-sharer of land, challenged the respondents' entitlement to increased water time for their share of the land, which they had purchased and subsequently converted into an orchard. The petitioner argued that the temporary nature of orchard irrigation should not justify altering the established water-sharing arrangement. The Supreme Court held that the respondents' entitlement to extra water time for the orchard, which was granted by separate, unchallenged orders, provided a valid basis for the proportionate increase in Nikkal water usage. The Court rejected the petitioner's argument that the potential future cessation of orchard irrigation warranted depriving the respondents of their current water allocation. Consequently, the Court affirmed the lower court's decision, emphasizing that the validity of the orchard water grant was not under challenge in the instant proceedings.
- Does the temporary nature of orchard irrigation preclude a landholder from receiving a proportionate increase in water-course discharge time?
- Can a party challenge the allocation of water for a specific land use when the underlying order granting that water usage is not under challenge?
- Canal and Drainage Act, 1873
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a defendant, against the dismissal by the High Court, of his Civil Revision. It had arisen out of a suit for declaration and perpetual injunction filed by the respondents' side in respect of a dispute between the parties determined under the Canal and Drainage Act, 1873.
2. ' According to facts stated by the learned counsel the respondents' side is purchaser of a piece of land from its owner who had owned it jointly with the petitioner--he owning 2/3rd of it. It is further stated that prior to the sale in respondents' favour of the remaining 1/3rd the question of utilization of the tail discharge from the water-course known as Nikkal, was b./ agreement between the co- sharers divided proportionate to their shares. After the sale the respondents made attempts to get their share of the Nikkal increased but ultimately having failed before the Canal Authorities they filed a civil suit which having been dismissed by the trial Court, their appeal was allowed by the learned District Court. The petitioner's civil revision having been dismissed, leave to appeal has now been sought.
3. ' Although some technical questions have also been raised in the memorandum of the petition but the stress of the learned counsel when pressing this petition was on merits. As contended by the learned counsel, the reason that the respondents had after the purchase of the land, obtained extra irrigation water/time for the orchard planted on two Acres of the said purchased land, could not furnish a ground for seeking extra time in the utilization of the Nikkal as well. Learned counsel for the caveator in reply contended that the extra time of 14 minutes granted to the respondents' side from the Nikkal is proportionate to the additional water for normal irrigation of the orchard. In this behalf the learned counsel for the petitioner argued that the planting of orchard being a temporary use of the land and irrigation, should not have been made basis for change of the Nikkal arrangement.
4. We do not agree with him. The mere fact that there is a possibility of the respondents giving up or not utilizing the extra irrigation time for the orchard would not be a ground for depriving them at present of their extra utilization of the Nikkal. A similar other argument that has been raised by the learned counsel for the petitioner that the entire ground relating to orchard has been made up by the respondents' side so as to obtain the additional Nikkal water, essentially relates to the sanction of the extra irrigation time for the orchard, which the learned counsel admitted, was granted by separate orders which are not under challenge in this petition. Be that as it may, this is also a weak argument to set aside the impugned judgment. Leave to appeal, accordingly, is refused.