2020 C L C 1848
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
HABIB ADM LIMITED through General Manager----Appellant
Versus
EXECUTIVE ENGINEER CANAL IRRIGATION DIVISION HUB and another ----
Respondents
Regular Second Appeal No.01 of 2014, decided on 22nd November, 2019.
(a) Balochistan Canal and Drainage Ordinance (XX of 1980) ----
----Ss. 27 & 30---Canal and Drainage Act (VIII of 1873), S.31--- Canal water, enhancement
of rate ---Contention of plaintiff was that defendants had enhanced water rate without any
justification ---Suit was dismissed concurrently ---Validity ---Nothing was on record that
enhancement of water rate by the defendants was illegal and without lawful authority---
Executive Engineer being a Canal Officer had powe r of Civil Court under S.27 of
Balochistan Canal and Drainage Ordinance, 1980 and S.30 of the said Ordinance reflected that in absence of written contract every water supply was to be deemed to be given at the rate subject to the condition of prescribed ra te---Plaintiff had failed to prove that department
had assured to charge him at the specified rate---Parties had reached to the agreement through negotiation for supply of canal water and such negotiation should be deemed to be contract between the parties ---Water supply to the plaintiff in absence of contract was subject
to Rules and payment of charges ---No mis -reading or non- reading of evidence had been
pointed out in the impugned judgments passed by the Courts below ---Findings recorded by
the Courts belo w being neither perverse nor arbitrary, second appeal was dismissed, in
circumstances.
(b) Civil Procedure Code (V of 1908) ---
----S.100--- Second appeal ---Scope ---Scope of second appeal was limited ---Concurrent
findings could not be interfered with in sec ond appeal unless some procedural defect
affecting such findings had been pointed out.
Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 and Muhammad
Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304. rel.
H. Shakeel Ahmed for Appellant.
Khalil -uz-Zaman Alizai, Additional Advocate General ("AAG"). for Respondents.
Date of hearing: 4th November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ----This Regular Second Appeal in terms of section 100
of The Code of Civil Procedure (V of 1908) (hereinafter referred as "C.P.C.") arises out of
judgment and decree dated 27.12.2013 (hereinafter "the impugned judgment") whereby the
learned District Judge, Lasbela at Hub (hereinafter "the Appellate Court") while dismissing the Regular First Appeal filed by the appellant upheld the judgment and decree dated 31.11.2012 passed by the learned Senior Civil Judge, Hub.
2. Epitomized facts necessary for adjudication of instant appeal are that the
appellant/plaintiff instituted a suit for declaration, injuncti on and cancellation of unjustified
enhance bills averring therein that the appellant/plaintiff established a plant at Hub by
investing huge amount. Sister company of the appellant/plaintiff laid "Dia Pipeline" with a
major share of the appellant/plaintiff in the year 1983, thereafter, the said supply line was
badly damaged due to rough handling and worst management, so, appellant/plaintiff requested Managing Director, LIEDA for installation of new pipeline through letter No.25111 dated 20.03.2003. The lette r was not responded by MD LIEDA, however, Higher
Authorities were pleased to grant permission to appellant/plaintiff by issuing NOC in favour of appellant/plaintiff. The appellant/plaintiff spent huge amount and laid a new pipeline, on the assurance of aut hority that XEN Canal would charge from appellant/plaintiff Rs.11
(Rupees Eleven Only) per unit (One Thousand Gallons). It is further alleged that the Executive Engineer Irrigation Division Hub despite the assurance given to appellant/plaintiff suddenly en hanced the rate of water from Rs.11 (Rupees Eleven Only) per unit to Rs.42
(Rupees Forty Two Only) per unit and thereafter Rs.55 (Rupees Fifty Five Only) per unit and
then Rs.73 (Seventy Three Only) per unit without any justification. The respondents resis ted
the suit, being the defendants. While submitting their written statement, they controverted the assertions contained in the plaint. From the divergent pleadings of the contested parties following multiple issues were framed: -
"1) Whether the suit of pl aintiff in not maintainable in view of preliminary legal objection
No.II to VII?
2) Whether the plaintiff after terrible and huge expenses with the consent of defendants laid pipeline and the authorities ensured the Executive Canal will be charged an amoun t of Rs.11/ - per unit (1000 gallon)?
3) Whether the enhancement of rate per unit from Rs.11/ - to Rs.73/ - is illegal and
unlawful and without due course of law by defendants?
4) Whether no any contract made between plaintiff and defendants for the supply o f
water?
5) Whether no any permanent rate can be fixed for supply of water and under circumstances the rate could be enhanced keeping in view past and present cost and expenses?
6) Whether the plaintiff not for betterment of local inhabitant but for the object to lay a
separate pipeline for establishment of a plant to get more and more water?
7) Whether the plaintiff is entitled to relief claimed for?
8) Relief?
3. After framing of issues, parties to the suit produced their respective evidence and on
comple tion of the same, suit was dismissed vide judgment dated 31.11.2012 by the trial
Court. Being aggrieved from the judgment and decree, the appellant/plaintiff filed appeal
under section 96 of the C.P.C. before the learned District Judge, Hub, which was dism issed
vide judgment and decree dated 27.12.2013.
4. We have heard the learned counsel for the appellant as well as respondents at
considerable length and also perused the record.
5. The nutshell of the appellant/plaintiff's case is that the controversy bet ween parties is
only related to rate of water which was enhanced from initial rate of Rs.11/ - per thousand
gallon to Rs.42/ -, Rs.52/ - and then Rs.73/ - per unit. Question needs consideration is that,
whether the plaintiff was ensured by defendants/respondents that he would be charged at
Rs.11/ - per thousand gallon forever? The appellant/plaintiff making the payment of Rs.52/ -
per thousand gallon to defendants/respondents under protest but he could not produced any single document in this regard that enhancem ent of the rate by the defendants/respondents is
illegal and are without lawful authority. However, PW -4 Taj Muhammad produced circular
of LIEDA (Ex.P/4 -6) wherein the rates of outsider factories revised Rs.52/ - per 1000 gallon
and the plaintiff after time to time enhancement of rate by respondents/defendants makeg
payment of water charges. In rebuttal, the defendants/respondents produced representative of Water Board Karachi as DW- 1 Imtiaz Afridi, who placed rates of water Board of Sindh
Government for dom estic, commercial and industries as (Ex.D/1 -1) to (Ex.D/1- 3) wherein
the rates for industries is fixed Rs.73/- per thousand gallon and other plea taken by the
appellant/plaintiff that at Karachi the industrialist provided all the facilities along with pumping of water from reserve wires by water Board. Although the industrialists of Karachi facilitated but the witnesses of appellant/plaintiff admitted this fact that water which supplied from Dam to their factories needs no pumping on the other hand the defe ndant
No.l/respondent XEN being a Canal Officer has the power of Civil Courts under section 27 of Balochistan Canal and Drainage Ordinance, 1980. Similarly, section 30 of said Ordinance reflected that in absence of written contract every water supply of ca nal water shall be deem
to be given at the rate of subject to the condition of prescribed rates.
6. The careful analysis of the evidence shows that PWs -1, 2 and 3 are the employees of
the plaintiff/appellant have given the oral account about the plaintiff/ appellant case. PW- 4
produced record of LIEDA which consist upon billings, challans and list of consumers having no relevancy with the instant issue. It was upon plaintiff/appellant that he could not produce any material evidence to prove that the concerne d authorities of Irrigation
Department ever gave assurance to plaintiff/appellant that he would be charged at the rate of Rs.11/ - per thousand gallon and the same shall not be changed in future. The documentary
evidence which have been produced by appellant/plaintiff does not mention the said alleged assurance given by defendants for fixing the rate as Rs.11/ - per thousand gallon. However,
some letters have been placed on record by plaintiff/appellant i.e. letter written by the
appellant/plaintiff to the Pr incipal Secretary Governor of Balochistan, MD of LIEDA and to
Secretary Irrigation. In all these documents its mentioned that the plaintiff/appellant requested the authorities for new water line. All these documents are applications with subject to "Reques t of New Pipeline" that is too on his own risk and cost.
7. Since the evidence produced by both the parties does not bring on record any such
contract executed between parties for supply of water, though through negotiation they have reached to the agreem ent for supply of water, such negotiation is deemed to be contract
between the parties, subject to the condition that the respondent would supply water and the appellant would pay its charges, because as per provisions of section 31 of Canal and Drainage A ct, 1873, in absence of any contract with regard to supply of water, water supply
would be subject to rules and supply of water would be subject to payment of charges, this in absence of any contract, the provisions of section 31 of Canal and Drainage Act, 1873 would
apply.
8. We have also examined the judgments passed by the learned Civil Judge as well as
learned District and Sessions Judge and unable to find any misreading or non- reading of
evidence. The learned Civil Judge dismissed the suit of the appel lant/plaintiff after careful
analyzing the material available on the record. The said judgment was further affirmed by the learned District Judge in appeal filed by the appellant/plaintiff by way of judgment dated 27.12.2013.
9. This is a Regular Second Appeal which has a very limited scope as provided under
section 100 of C.P.C. The concurrent findings cannot be interfered with unless some
procedural defect, materially effecting such findings is pointed out by the appellant/plain tiff.
Reliance in this respect can be placed on Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 and Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304.
For what has been discussed above, we have no hesitation in our mind to hold t hat the
concurrent findings of facts recorded by both the Courts below are neither perverse nor arbitrary, so as to justify the interference in exercise of jurisdiction contemplated in section 100 of C.P.C. Consequently, the instant second appeal, being wi thout any merit is dismissed
with no order as to costs.
ZC/82/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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