Babu Singh vs Superintending Canal Officer and Others

N.C. Jain and V.K. Bali, JJ.—This writ petition has been filed against order of the Divisional Canal Officer, Annexure P-2, which has been affirmed by the Superintending Canal Officer vide order, Annexure P-6. The counsel for the petitioner has argued that his client was not served by the Divisional Canal Officer and that the order, Annexure P-2, is ex-parte. He has further contended that he took a specific ground before the Superintending Canal Officer that the petitioner was not served. The order of the Superintending Canal Officer has been read before us with a view to show that no finding was recorded to the effect whether petitioner was served or not.

After hearing the counsel for the parties, we are of the view that the writ petition deserves to succeed on the short ground that it has no where been recorded by the Divisional Canal Officer that the petitioner and his brothers were served or they had refused to accept notices which were issued for 6.10.1993. It appears to us that 6.10.1993 was the first date when the case was adjourned to 20.10.1993. On the first date of hearing it was the bounden duty of the Divisional Canal Officer to see from the summons etc. whether petitioner and his brothers, who were alleged to have demolished the watercourse, were served or not. It was on that date that he was to record his satisfaction about service. He could proceed in the case on merits only after recording a finding that proper service was effected. If he was to come to the conclusion that no proper service was done, he should have given another date for service.

In view of the discussion made above, this Court is left with no choice but for to remand the case to the Divisional Canal Officer, Bhatinda for decision on merits particularly when the Superintending Canal Officer also failed to notice the point of service while disposing of the case.

For the reasons recorded above, this writ petition is allowed. Impugned orders, Annexures P-2 and P-6 are quashed. Petitioner and respondents 3 and 4 are directed to appear before the Divisional Canal Officer on 17.9.1996. A copy of this order be given dasti on payment. Learned counsel for the petitioner has undertaken before us that petitioner would inform his brothers. It has been made clear to the counsel that neither the petitioner nor his brothers would be heard to say that any decision in this matter to be taken in future is ex-parte. The Divisional Canal Officer would decide the case expeditiously and preferably within one month after the parties appear before him.