Roshan Ali

IN THE COURT OF SENIOR CIVIL JUDGE, MULTAN.

Roshan Ali etc.

Vs.

Province of Punjab etc. (Suit for Declaration)

Written Statement on behalf of defendant No. 3.

Respectfully Sheweth: PRELIMINARY OBJECTIONS: 1.

That the suit is not maintainable in its present form.

2.

That the plaintiffs have no cause of action to file this suit.

3.

That the plaintiffs have challenged purely technical matter, which falls within the ambit of Canal authorities and has attained finality as such this court has no jurisdiction to try the instant suit.

4.

That the plaintiffs have not approached the court with clean hands.

5.

That the suit has been filed just to harass and black mail the replying defendant.

6.

That the defendant is entitled to payment of special cost U/s 35-A of C.P.C.

PARAWISE REPLY: 1.

Incorrect. Not admitted, the defendant No. 3 is also shareholder of outlet No. 6868/L Chawan Distributory.

2.

In reply to this para, it is submitted that an application U/s 20 of Canal & Drainage Act was filed which was duly investigated by field officials and officer. After detailed survey of the fields/land of the defendant No. 3 and preparation of commanded statement in respect of the levels of are of the defendant, sent a detailed report recommending transfer of the said land from outlet No. 3917/L Chawan Disty to 6868/L Chawan Disty. The D.C.O. without going into the merits of the case, without inspection of record rejected the application of the defendant in a slipshod manner without assigning cogent reasons.

3.

In reply to this para, it is submitted that an objection petition was filed by the replying defendant before the S.C.O. who after observance of codal and legal formalities i.e. issue of notice, its service on the share-holders of outlet No. 6868/L Chawan Disty and providing reasonable opportunity of hearing vide impugned order dated 29.5.2001 set aside the order of D.C.O. as the same was against the interest of irrigation. The contention of the plaintiffs that they were not informed about the proceedings of the case is baseless. i)

Incorrect. Not admitted, the impugned order has been passed after service of notice upon all the effected share-holders (including the plaintiffs) of outlet No. 6868/L as is reflected form the record of the Irrigation Department and they also participated in the proceedings of the case.

ii)

Incorrect. Not admitted, there is already available 10% discharge in the outlet and the area transferred is 17.75 Acres only, which is within 10% of total area of outlet. The contention of the plaintiffs that their timings of water will be reduced more than 12 years is misconceived.

iii)

Incorrect. Not admitted, the S.C.O. while passing the impugned order have discussed all the aspects of the case. He being a high ranking Engineer & Irrigation expert has dealt the case, keeping in view the related legal and technical aspects to redress the genuine and real grievances of the defendant.

iv)

Incorrect. Not admitted. The contention of the plaintiffs that the area in dispute is being properly irrigated is baseless and unfounded. Had the area of defendant being properly irrigated from outlet No. 3917/L. What was the fun to take the matter to Canal Authorities and adopt a lengthy procedure involving ample time and litigation expenses.

v)

Incorrect. Not admitted, the comparative Command Statement is available on the file of the case according to which the area of the replying defendant is better commanded from outlet No. 6868/L than 3917/L from where it has been transferred.

vi)

Incorrect. Not admitted, the detailed reply regarding difficulties faced by the present defendant has been given in para No. (iv). The contention of the plaintiffs that S.C.O. should have relied on three years average irrigation of the disputed area is nowhere provided in the rules. It is further clarified that the defendant is supplementing his irrigation by tube-well water and irrigation by tube-well water is also treated as canal irrigation under rule 28 of the Canal & Drainage Act, hence, this is no criteria to ascertain canal irrigation of the impugned transfer of area whereas the present defendant has repeatedly stated this fact before the Canal authorities and they have admitted the same.

vii)

Incorrect. Not admitted. The impugned order has been passed by S.C.O. keeping in view the rule of

expediency which the D.C.O. had ignored. The impugned order fulfills all the requirements of Sec-20 of the Canal & Drainage Act. The allegation of malafide is baseless. viii) Incorrect. No admitted. The outlet is drawing 10% extra discharge as such the inclusion of only 17.75 Acre area will not effect the rights of plaintiffs. There is no illegality in the order passed by defendant No. 2. He has passed the order after considering all relevant factors and close scrutiny of the case under the provisions of Canal & Drainage Act and Canal Revenue Manual. ix)

Incorrect. Not admitted. The area belonging to the plaintiffs is fully under cultivation. It is essential to point out that intensity on Sidhnai Canal is 80% according to which the maximum canal water supplied for Rabi & Kharif crops is 40% each, meaning thereby that 100 acres land will get water for 40 acres during a crop season. For irrigation of remaining area the owners have to depend on tube-well water. The contention of the plaintiffs does not carry weight in view of above clarification.

x)

Incorrect. The site was inspected, surveyed by the officials of the Department and Command Statement was also checked at site by the Sub-Divisional Officer, Rashida Sub-Division.

xi)

Incorrect. Not admitted. Proper application U/s 20 of the Canal & Drainage Act is available on the record of the case.

xii)

Incorrect. Not admitted.

xiii) Incorrect. Not admitted. The impugned order is speaking one and cogent reasons for transfer of the

area of replying defendants has been given by the S.C.O. There is no ambiguity in the order. The objection is baseless. 5.

Incorrect. Not admitted. The plaintiffs have no right to ask defendants not to implement the impugned orders.

7.

Incorrect. Not admitted. The plaintiffs have no cause of action to institute the titled suit.

8.

Legal.

9.

Legal. In view of the above stated facts, it is respectfully prayed that the above titled suit of the plaintiffs being against the law and facts filed with malafide intention may very graciously be dismissed with cost. Humble Defendant No. 3,

Through: Ziad Ahmad Mufti, Advocate High Court, Multan. Verification: Verified on oath at Multan on 19th day of November, 2002 that the contents of all the parts of the written statement are true and correct to the best of my knowledge and belief.

Defendant No. 3

IN THE COURT OF SENIOR CIVIL JUDGE, MULTAN.

Roshan Ali etc.

Vs.

Province of Punjab etc. (Suit for Declaration)

Reply to application for temporary injunction on behalf of respondent/defendant No. 3.

Respected Sir, The respondent humbly submits as under: -

PRELIMINARY OBJECTIONS: 1.

That the application is not maintainable in its present form.

2.

That the applicants have no cause of action nor any locus standi to file this application.

3.

That the application has been filed just to harass and black mail the replying respondent.

4.

That the applicants have not approached the court with clean hands.

PARAWISE REPLY: 1.

Correct.

2.

Incorrect. Not admitted. The contents of the plaint as well as the application fro grant of temporary injunction are baseless.

3.

In reply to this para, it is submitted that it is the defendant No. 3 who is suffering due to non-availability of water not the plaintiffs who are getting canal water beyond their entitlement.

4.

Incorrect. Not admitted. Balance of convenience tilts in favour of the respondent.

5.

Incorrect. Not admitted. There are no chances of success of the instant suit based on malafide. In view of the above submissions, it is most respectfully prayed that the above-titled application being against the law and facts, may very graciously be dismissed. Humble Respondent No. 3,

Through: Ziad Ahmad Mufti, Advocate High Court, Multan.