Muhammad Ahsaan vs Govt. Of Pb. etc.

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Judgment Sheet

LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

Writ Petition No. 8008 of 2020 / BWP Muhammad Ahsan Versus Government of the Punjab & others

JUDGMENT

Date of Hearing: 13.12.2021.

Petitioner (s) By: Mr. Nadeem Iqbal Ch., Advocate Respondent(s) By: Ch. Shahid Mehmood, Assistant Attorney General for Respondents No.

1 to 4 Mr. Ghazanfar Ali Khan, Advocate for Respondent No. 5.

ABID HUSSAIN CHATTHA, J: Through this constitutional Petition, the Petitioner has impugned Orders dated 29.02.2020 and 06.02.2018 passed by the Board of the Superintending Canal Officers (the “Board” or the “S.C.O.”) and Divisional Canal Officer (the “D.C.O”) being coram non judice, unlawful and in violation of mandatory requirements of Section 20 of the Canal & Drainage Act, 1873 (the “Act”) read with Rule 79-A of the Canal & Drainage Rules (the “Rules”).

2.The brief facts of this case are that the D.C.O., vide order dated 06.02.2018 on the request of Respondent No. 5 transferred 08-Acres of agricultural land from the Chak Bandi of outlet No.2-D / H.B to the outlet No. 5/6-R. The S.C.O., in exercise of powers conferred under Section 20 (2) of the Act confirmed the amendment of Chak Bandi made by the D.C.O., with the partial modification of the exclusion of 01-Acre land of Killa No. 8 (04-Kanal), Killa No. 12 (03-Kanals), Killa No.

20 (01-Kanal) from the new outlet No. 5 /6-R vide Order dated 20.10.2018. The Petitioner assailed the vires of the aforesaid decisions before the Board.

3.The primary grievance of the Petitioner is that the impugned Orders have been passed in excess of jurisdiction and against the record; that subordinate authorities rendered decision ex-parte without service of requisite notice on him and other concerned persons; that this plea was repelled by the Board without referring to any record to establish the due service upon the Petitioner; that the Order of S.C.O. and D.C.O., were passed at the back of the Petitioner in violation of Rules 79-A to 79-I of the Rules and as such, the mandatory procedure contemplated in Section 20 of the Act was clearly violated.

4.Learned counsel for Respondent No.5 rebutted the contentions of the Petitioner by submitting that due process of law as contemplated under Section 20 of the Act read with Rule 79-A of the Rules was duly followed; that the Petitioner also approached Civil Court regarding the same cause of action but the suit was unconditionally withdrawn on 25.10.2019 and that the impugned Orders do not call for any interference in exercise of constitutional jurisdiction by this Court.

5.Record depicts that the Petitioner specifically alleged before the Irrigation Authorities that no notice was issued to him and other co-sharers while allowing the modification in the concerned Moga and he was not heard. As such, the impugned Orders dated 06.02.2018 and 20.10.2018 were passed ex-parte in violation of the fundamental right of the Petitioner to be heard. However, the perusal of the impugned Order dated 06.02.2018 states that notices under Section 20 of the Act were issued for 29.01.2018 which are part of record. On 29.01.2018, the case was not heard and on the next date of hearing i.e. 06.02.2018, the decision was rendered. Conspicuously, no co-

sharer had participated in the proceedings, rather, it specifically states that no co-sharer despite notice, attended the proceedings. Similarly, the impugned Order dated 29.02.2020 states that “the Appellant stated in revision Appeal that all proceedings & decision have been made Ex-parte without serving proper notices. The plea of Appellant does not based on facts, as all codal formalities were observed / fulfilled properly”.

6.There is no cavil to the proposition that Section 20 of the Act provides that whenever an application is made to Divisional Canal Officer for the supply of water from a canal through an existing or a new water-course or change of source for supply of any land, the Divisional Canal Officer, if considers it appropriate shall give public notice to all persons interested and personal notice to the land-owners through whose land a link water-course is to pass, to show cause on a day not less than fourteen days from the date of such notice why the said supply should not be so conveyed, or the source of supply be changed. The said Section contemplates a complete procedure to ensure that all persons who are adversely affected or are likely to be affected are duly heard in terms of their objections. The Courts of law have repeatedly held that the issuance of notice and the right of hearing is mandatory under Section 20 of the Act. The forums below despite continued grievance of the Petitioner to the effect that no notice was issued to him and he was not duly served, have failed to advert to this basic requirement. Record is silent as to how the Petitioner and other co-sharers were served. Rule 79-A of the Rules provides that every summons, notice, order, requisition and proclamation which, under the Act or the Rules is required to be served on, or issued, delivered or communicated to any person or published for general information, shall be so served, issued, delivered, communicated or published as provided in the Rules 79-B to 79-I of the Rules. The said Rules require public notice or

proclamation to be issued or made by posting copies thereof at the office of the officer giving or making the same in such manner that such notice shall be accessible to the public or at convenient places in the locality, or near the residence of the persons affected thereby, and by beat of drum or oral proclamation or other customary method. Such notices are also required to be published in two daily newspaper having wide circulation. Rules of personal service are also duly elaborated. Further, conspicuously record is silent regarding how the mandatory requirements of Section 20 of the Act were fulfilled viz-a-viz the Petitioner and other affected persons. As such, the impugned Orders have failed to address the basic contention of the Petitioner with respect to his due service. Reliance in this regard is placed on cases titled “Mian Shaukat Ali & another Vs. Secretary, Irrigation, Government of Punjab, Lahore & 13 others ” (2003 MLD 1231); and “Col. (Retd.) Fakhar Hussain Shah Vs. Raja Muhammad Aslam & others” (1991 MLD 243). Further, it is also importantly noted that the referred civil suit filed by the Petitioner was with respect to impugned Orders dated 17.05.2019, 20.05.2019 and 29.04.2019 which are different from the impugned Orders dated 29.02.2020 and 16.02.2018, the subject matter of this Writ Petition. As such, the Order of withdrawal of Civil suit is not an impediment in the way of this Petition.

7.In view of the above, the impugned Orders are declared to be illegal and unlawful and are set aside. The Application of Respondent No. 5 shall be deemed to be pending before Respondent No. 4 which shall be decided afresh, strictly in accordance with law, particularly Section 20 of the Act, after dilating upon all aspects of the matter and addressing respective contentions of the parties, through a well-reasoned speaking order after serving due notice to the Petitioner and all other co-

sharers under the applicable Rules. The instant Petition stands accepted in the above terms.

(Abid Hussain Chattha) Judge *Muddasir Rasheed*