Law: Code of Civil Procedure (CPC) , 1908

Section: 9,VII RULE 11

Law: Punjab Irrigation, Drainage and Rivers Act, 2023

Section: 189,180,205

Law: Canal and Drainage Act, 1873

Section: 68,67

Law: Punjab General Clauses Act, 1956

Section: 4

ORDER

Through    this    Civil Revision, the petitioner has called into question validity and legality of judgments/orders and decrees of the Courts below pursuant whereto the plaint of the petitioner’s suit was rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 (C.P.C).
2.    Facts in brevity are that the petitioner instituted a suit for declaration by challenging the validity and legality of orders dated 15.06.2022 and 24.10.2023 passed by respondents No.2 & 3/Canal Authorities with regard to Warabandi on the grounds that the same are against the law and facts, ex-parte, without notice, without providing opportunity of hearing, result of conspiracy, malafide and

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ineffective upon his rights. The respondents resisted the suit through filing their respective separate written statements. The respondents, besides other legal objections, also took an objection that the petitioner’s suit is not maintainable and the plaint is liable to be rejected under Order VII Rule 11 of C.P.C. Learned ADA while elaborating his stance before the learned Trial Court maintained that under Section 189 of the Punjab Irrigation, Drainage and Rivers Act, 2023, jurisdiction of the Civil Court is barred. Learned Trial Court, after hearing both the sides, rejected the plaint under order VII Rule 11 C.P.C vide order and decree dated 02.10.2024. Feeling aggrieved, the petitioner preferred an appeal which was dismissed vide judgment and decree dated 30.01.2025. Hence, this petition.
3.    I have heard learned counsel for the parties at considerable length and perused the record with their able assistance.
4.    Stance of the petitioner is that the petitioner impugned the order dated 15.06.2022 which was passed on the application of the respondents No.4 to 6, moved under Section 68 of the Canal and Drainage Act, 1873, (hereinafter referred to as the Act, 1873) and as said proceedings were initiated under the Act, 1873 which does not bar the jurisdiction of Civil Court, therefore, the plaint could not be rejected. Whereas, the contention of the respondents is that the petitioner impugned the order dated 15.06.2022 of respondent No.3 through preferring an appeal under the Punjab Irrigation, Drainage and Rivers Act, 2023 (Act XIV of 2023, notified on 17.02.2023) (hereinafter referred to as the Act, 2023) which specifically bars the

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jurisdiction of Civil Court, therefore, the Courts below have rightly rejected the plaint under Order VII Rule11 C.P.C.
5.    Perusal of the record reflects that respondents No.4 to 6 moved an application under Section 68 of the Act, 1873, before respondent  No.3  (Sub-Divisional  Canal  Officer)  on  06.05.2022.
Respondent No.3 after issuing notice to the respondents of said application and recording statements of concerned persons shifted the irrigation outlet and also changed the Warabandi. Being aggrieved, the petitioner impugned the said order through preferring an appeal under Section 180 of the Act, 2023, before the respondent No.2 (Divisional Canal Officer) who dismissed the same vide order dated 24.10.2023. Being dissatisfied, the petitioner assailed said orders of Canal Authorities through instituting suit for declaration with permanent injunction. The learned Trial Court rejected the plaint in view of Section 189 of the Act, 2023, which bars the jurisdiction of the Civil Court and said rejection was upheld by the learned lower Appellate Court.
6.    No doubt, Section 189 of the Act, 2023, bars the jurisdiction of the Civil Court which reads as under:
"Exclusion of jurisdiction of civil courts in matters within the jurisdiction of Canal Officers.-(1) Except as otherwise provided by this Act, no civil court shall have jurisdiction in any matter which the Government, Minister, Secretary, a Canal Officer, Review Board or any other officer or person is empowered by this Act to decide, or to take cognizance of or the manner in which the Government, Minister, Secretary, Canal Officer or any other officer or person exercises any power vested in it or him by or under this Act.
(2) Except as otherwise provided by this Act, no proceedings shall lie before any civil court at the instance of any party to or person interested in a matter which is, or has been, or might or ought to have been a proper subject to be brought before and decided by the Government, Minister, Secretary, a Canal Officer or other person under this Act."

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7.    There is no dispute to the fact that respondents No.4 to 6 filed their application under Section 68 of the Act, 1873, on 06.05.2022 as said Act was prevalent at that time. Section 68 of the Act, 1873, provides as under:
"68. Settlement of difference as to mutual rights and liabilities of persons interested in the use of water from a canal outlet.–
(1)    Whenever a difference arises between two or more persons with regard to the distribution of water from a canal outlet, construction, use, or maintenance of the water-course supplied with water from the outlet, or deposit of soil from water-course clearance, or mutual rights and liabilities in that regard, any such person may apply in writing to the Sub- Divisional Canal Officer stating the matter in dispute. The Sub-Divisional Canal Officer shall thereupon proceed in the matter as laid down hereafter.
(2)    Such Officer shall give notice to all persons interested and liable to be affected that on a day to be named in such notice he will proceed to enquire into the said matter and after such inquiry, he shall pass his order thereon unless he transferred (as he is hereby empowered to do the matter to the Collector who shall thereupon enquire into and pass his order on the said matter.
(3)    Any person aggrieved by an order made by such Officer under sub-section (2) may, within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer.
(4)    Where an appeal has been preferred under sub-section (4), the Divisional Canal Officer–
(a)    shall decide the appeal as expeditiously as possible; and
(b)    may, pending the disposal of the appeal stay the operation of the order appealed against; provided the stay order does not adversely affect any standing crops.
(5)    The applicant shall not be entitled to use the water-course that may be sanctioned under sub-section (2) or (3) above for conveyance of water to his land or the land required for the deposit of slid from water-course clearance, until–
(a)    he has paid to the land-owner the compensation for the land occupied for any of the purposes, in whatever shape it is determined through mutual agreement; or
(b)    possession of the land has been acquired under the provisions of this Act.
(6)    Any order passed under sub-section (2), if there be no appeal preferred against it and an order passed in appeal under sub- section (3) shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made, and shall thereafter remain in force until it is set aside by a decree of a Civil Court."
8.    In the said Section, it is provided that the order passed by Canal Authorities remained in force until it is set aside by a decree of

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a Civil Court. Said Section 68 was subsequently substituted by the Canal and Drainage (Punjab Amendment) Act, 1975 (XXXII of 1975) and later on it was again substituted by the Canal and Drainage (Punjab Amendment) Act, 2006 (Act XVII of 2006) which reads as under:
"68. Settlement of difference as to mutual rights and liabilities of persons interested in the use of water from a canal outlet.–
(1)    Whenever a difference arises between two or more persons with regard to the distribution of water from a canal outlet, construction, use, or maintenance of the water-course supplied with water from the outlet, or deposit of soil from water-course clearance, or mutual rights and liabilities in that regard, any such person may apply in writing to the Sub-
Divisional Canal Officer
(2)    The Sub-Divisional Canal Officer may also proceed to settle any dispute without any such application on the basis of the order passed under section 20-B or an order cancelling the extra water supplies.
(3)    The Sub-Divisional Canal Officer shall give notice to all persons concerned regarding the enquiry in the said matter and after such enquiry shall pass an order as he deems appropriate.
(4)    Any person aggrieved by an order passed under sub-section
(2) may, within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer.
(5)    Where an appeal has been preferred under sub-section (4), the Divisional Canal Officer–
(a)    shall decide the appeal expeditiously; and
(b)    may, pending the disposal of the appeal, suspend the operation of the order; provided that the stay order does not adversely affect any standing crops.
(6)    The applicant shall not be entitled to use the water-course that may be sanctioned under this section for conveyance of water to his land or the land required for the deposit of soil from water- course clearance, until–
(a)    he has paid to the land-owner the compensation for the land occupied for any of the purposes, in whatever shape it is determined through mutual agreement; or
(b)    possession of the land has been acquired under the provisions of this Act.
(7)    An order passed under sub-section (3), if there be no appeal preferred against it and an order passed in appeal under sub- section (5) shall be final.”
9.    Perusal of the said amended provision of law reflects that the words 'until it is set aside by a decree of civil court' were omitted. It means that at the time of filing of application by the respondents

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No.6 & 7 under Section 68 of the Act, 1873, as Amended through Punjab Amendment Act, 2006, there was no restriction to the effect that orders of the Canal Authorities remained intact until the same are set-aside by a decree of Civil Court.
10.    However, Section 67 of the Act, 1873, provides jurisdiction to the Civil Court which reads as under:
"67. Jurisdiction.– Except where herein otherwise provided, all claims against the Provincial Government in respect of any thing done under this Act may be tried by the Civil Courts; but no such Court shall in any case pass an order as to the supply of canal- water to any crop sown or growing at the time of such order."