Full Judgment Text & Judicial Ruling

2002 Y L R 3772

2002 Y L R 3772

[Lahore]

Before Nazir Ahmad Siddiqui, J

SHAH MUHAMMAD and others‑‑‑Petitioners

Versus

DIVISIONAL CANAL OFFICER, ISLAM HEADWORKS DIVISION, BAHAWALPUR and another‑‑‑Respondents

Writ Petition No.7263 of 2000, decided on 9th March, 2001.

Canal and Drainage Act (VIII of 1873)‑‑‑

‑‑‑‑S. 35(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Imposition of penalty for unauthorized use of water‑‑ Enhancement of penalty‑‑‑One time special charges as penalty imposed on petitioners for unauthorized use of water by Divisional Canal Officer, was enhanced by Superintending Canal Officer to three times‑‑ Validity‑‑‑Superintending Canal Officer was not competent to enhance penalty, suo motu‑‑‑ Lambardar had lodged a complaint with Superintending Canal Officer who treating such complaint as appeal against order of Divisional Canal Officer enhanced the penalty from one time to three times‑‑ Such cause could hardly furnish a valid jurisdiction for passing enhancement order by Superintending Canal Officer, especially when no reason was available for enhancing the penalty‑‑‑Order enhancing penalty passed by Superintending Canal Officer could not be lawfully maintained and same was declared by High Court to be without lawful authority and of no legal effect.

Mian Muhammad Jamal for Petitioners.

Muhammad Qasim Khan, A.A.‑G. for Respondents.

Date of hearing: 9th March, 2001.

ORDER

The instant Constitutional petition calls in question the order dated 4‑3‑2000 passed by the Superintending Canal Officer, Malsi Canal Circle, Multan (respondent No.2) whereby he enhanced one time Tawan to three times and imposed the same on the petitioners, "due to tempering of outlet RD- 17272‑L Kotli Minor for illegal irrigation.

2. The Divisional Canal Officer, Islam Head-works Division at Head Pallah, Tehsil Hasilpur, District Bahawalpur imposed one time special charges on the petitioners vide his order dated 21‑6‑1999 for unauthorized use of water in order to irrigate their lands. As per section 35(3) of Canal and Drainage Act, 1873, any person aggrieved by an order passed by the D.C.O., may within 30 days of the passing of such order; appeal to the S.C.O. when special charges levied by‑the D.C.O. are upto three times occupiers rate. Admittedly no appeal was filed either by the petitioner or the Canal Department, against the said order of D.C.O. It could not be, refused by the representative of the respondents that the S.C.O. was not competent to enhance the penalty, suo motu. However, it is submitted by him that one Bashir Ahmed Lumbardar lodged a complaint with the S.C.O., who treating the wane as an appeal against order of D.C.O. dated 21‑6‑1999, enhanced penalty from one time to three times. This could hardly furnish a valid Notification for passing the impugned order by the S.C.O. (respondent No.2). It is also not denied that no further appeal was available against the impugned order of the S.C.O. Even there is no reason available in impugned order, as to for what consideration, the penalty was enhanced from one time to three times.

3. In view of the above, order passed by the S.C.O. (respondent No.2) dated 4‑3‑2000 cannot be lawfully maintained and the same is hereby declared to be without lawful authority and of no legal effect, by allowing this petition, leaving the parties to bear their own costs.

4. Petitioners are hereby directed to deposit the amount of penalty as directed by the D.C.O. (respondent No. 1) dated 21‑6‑1999, within one week from today, failing which law shall take its own course.

H.B.T./S‑523/L Petition allowed.

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