Bhajan Lal vs State of Haryana

S. S. Kang, J. (Oral)

At issue in this writ petition under Articles 226 and 227 of the Constitution of India is the legality and validity of orders dated July 22, 1974 of the Divisional Canal Officer and order dated November 28, 1974 of the Superintending Canal Officer (Annexure P. 3). It has been filed in the following circumstances:

Bhola Ram respondent No. 4 made an application to the Divisional Canal Officer that water course ABCD which was in existence for the last 25 years had been demolished by Kumbha Ram, the present petitioner. The Divisional Canal Officer, Fatehabad Division, Hissar and Superintending Canal Officer, Hissar, Bhakra Canal, Circle Hissar, passed orders for the restoration of this water course. Bhola Ram made a prayer that he is ready to provide compensation for the land falling under water course ABCD if the same is validly sanctioned. On the application of Bhola Ram, a scheme was framed providing for water course ABCD (shown in Annexure P. 5 appended to this writ petition). Notice of the scheme as envisaged by law, was issued to the rightholders likely to be effected, inviting objections. The scheme was also published in accordance with law. All the petitioners appeared before the Divisional Canal Officer and raised their objections, and stated that water course ABCD was in existence. The Divisional Canal Officer and the Sub Divisional Canal Officer inspected the spot. They examined the feasibility of suitable alternatives also. The matter was postponed. Ultimately it was taken up in the presence of the parties. The petitioners objected that the proposed water course shall bifurcate their holdings. They are very small land holders. It will cause irreparable harm to them. The pleas of the present petitioners did not find favour with the Divisional Canal Officer who sanctioned the scheme and provided water course ABCD which passed through the land of the petitioners. Aggrieved, the petitioners went up in revision before the Superintending Canal Officer. He was of the view that to do justice between the parties, it was desirable to have spot level along the alignment ABFE ''E'' and also of the field levels of area of Bhola Ram and Boga Ram. So the matter was sent to the Divisional Canal Officer who went to the spot and submitted a report to the Superintending Canal Officer. The matter was taken up on November 28, 1974. After hearing the parties and examining the spot levels along with the various alignments of the water course required for irrigation of Bhola Ram and Boga Ram, he came to the conclusion that the sanctioned water course bifurcated the holdings of the appellants and adversely effected their interest. Therefore, he sanctioned alternative water course ABFE ''E'' because according to him, this would prove better irrigation to the holdings of the Bhola Ram and Boga Ram and will be on one side of the holdings of the present petitioners. Still aggrieved, the petitioners have come up in this writ petition.

Three points were taken in the writ petition and the same have been reiterated before me. They are : (i) that the scheme was not prepared in accordance with the provisions of Sections 30A to 30D of the Act and proper notices were not issued to the effected right holders; (ii) that the Divisional Canal Officer and the SubDivisional Canal Officer did not associate the petitioners with them when they went to inspect the spot and made measurements of the spot levels, and; (iii) that an alternative water course ALMTE has been in existence ever since the advent of the canal in the area which was about 30 years back.

A perusal of the order Annexure P. 4 which was placed on the file later on and was perhaps not available to the learned counsel for the petitioner when he drafted the writ petition, it is clear that a scheme was prepared in accordance with the provisions of Sections 30A to 3D of the Northern India Canal and Drainage Act, 1893 (for short, ''the Act'') had been properly published and notices had been issued to the affected right holders and in fact all the petitioners appeared before the Divisional Canal Officers and projected their viewpoints. Their presence has been marked. The contentions raised by them on various dates have also been noticed in this order. The Divisional Canal Officer had sanctioned water course ABCD after hearing the parties. So the first submission cannot be accepted.

The Superintending Canal Officer has only asked for the spot levels of the fields falling in the way of an alternative water course as also the level of the fields of Bhola Ram and Boga Ram which had to benefit from that water course. It was a technical subject. Only measurements were to be taken by an Expert. The presence of the petitioners for that purpose was not necessary. Moreover, these measurements were being taken to provide relief to them. These were not the measurements pertaining to the land falling under water course ABCD sanctioned by the Divisional Canal Officer. So the absence of the party when measurements were made which ultimately culminate in its favour cannot be termed to be prejudicial to that party. The order passed by the Superintending Canal Officer is very fair and just. A look at the siteplan makes manifest that the petitioners could not be provided more relief than has been done by the Superintending Canal Officer while providing means of irrigation to the respondents. The second contention also fails.

There is no merit in the third contention. There is no material on the file to suggest that water course ALMTE was in existence. In any case, if it was so, that will be no bar to providing a shorter water course. Water course ALMD will be also more than twice long to water course ABDE provided by the impugned order. This would not serve the purpose of the irrigation.

For the reasons mentioned above, I find no merit in this writ petition and the same is dismissed but with no order as to costs.