Bhalla Ram and others vs Divisional Canal Officer, Karnal Division and others

P.C. Jain, J.—Bhalla Ram and others have filed this petition under Articles 226 and 227 of the Constitution of India challenging the legality and correctness of the order of the Divisional Canal Officer, Respondent No. 1, dated 5th May, 1964 (copy Annexure ''E'' to the petition).

Briefly the facts as stated in the petition are that the Petitioners jointly own Khasra Nos. 67/25, 60/21 and 96/5 situated in village Balla, Tehsil and District Karnal. The Petitioners have been irrigating their fields from a water course shown by words ''A'' to ''C'', ''C'' to ''D'' and then ''D'' to ''F'' in the plan Annexure ''A'' to the petition. Respondent No. 3, thinking that his lands were not being irrigated properly, wanted to have another water course which was to pass through the fields of the Petitioners. With this object in view, Respondent No. 3 got certain proceedings initiated through the Divisional Canal Officer under the Punjab Requisitioning and Acquisition of Immovable Property Act (Punjab Act No. XI of 1953) (hereinafter referred to as the Requistioning Act). The Divisional Canal Officer submitted a report to the Deputy Commissioner acting as the Competent Authority under the Requisitioning Act, for the acquisition of the Petitioner'' land to the extent of 18 Marlas for providing direct water course to the fields of Respondent No. 3. The Petitioners contested the proceedings before the Competent Authority but did not succeed and the Competent Authority allowed the acquisition of the land vide its order dated 28th June 1960 (copy Annexure ''B'' to the petition). Feeling agrieved from the order of the Competent Authority, an appeal was preferred by the Petitioners, which was ultimately allowed by the Home Secretary to Government of Punjab vide his order dated 17th July, 1961 (copy Annexure ''C'' to the petition).

It is averred that having not succeeded in getting the land of the Petitioners acquired under the Requisitioning Act, Respondent No. 3 approached the Divisional Canal Officer u/s 30 A of the Northern India Canal and Drainage Act (hereinafter referred to as the Act) for providing the same water course ''AB'' through the fields of the Petitioners and this time Respondent No. 3 ultimately succeeded and the Divisional Canal Officer, passed the imougned order by which water course ''AB'' has been provided. Certain allegations of mala fides have been made but it is not necessary to state them as no advantage was derived by the learned Counsel for the Petitioners, from these allegations, at the time of hearing.

Return has been filed on behalf of Respondents 1 and 2 in which the material allegations made in the petition have been controverted.

It was contended by Mr. M. S. Jain, learned Counsel for the Petitioners, that no new scheme for providing a water course could be framed under the Act by the Sub Divisional Canal Officer nor could it be approved by the Divisional Canal Officer when Respondent No. 3 had failed to get similar relief earlier in the proceedings which were started under the Requisioning Act. It was also contended by the learned Counsel that the finding of the appellate authority under the Requisitioning Act that it was not necessary to provide another water course ''AB'' to Respondent No. 3, would operate as res judicate and the canal authorities under the Act were bound by that finding.

On the other hand it was contended by the learned Advocate General, so also by Mr. G.C. Garg, learned Counsel for Respondent No. 3, that under the Act it was the exclusive jurisdiction of the canal authorities to initiate proceedings for providing a water course to a person who makes an application for that purpose. According to the learned Counsel, the only limitation or check that had been put on the power of the canal authorities was that they were required to follow the mandatory procedure as laid down in Sections 30A to 30F of the Act which admittedly was followed in the instant case. It was also contended by them that any adverse finding of an appropriate authority under the Requisitioning Act could not be a bar in the way of the canal authorities in providing a water course, who were invested with an independent power under the Act had jurisdiction to arrive at a finding other than the one reached by an authority under a different statute.

On these facts there is no dispute that for the water course in dispute proceedings were initiated under the Requisitioning Act, that the competent authority (Deputy Commissioner) ordered the requisitioning of 18 Marias of land belonging to the Petitioners that on appeal, the order of the competent authority was set aside and that fresh proceedings for providing the same water course were again started by the canal authorities under the Act in the year 1964.

The short question that requires determination on the respective contentions of the learned Counsel for the parties, is whether the decision of the appropriate appellate authority in the proceedings under the Requisitioning Act would operate as res judicate between the parties and proceedings under the Act on the same matter could not be started subsequently

After giving my thoughtful consideration to the entire matter, I regret, I am unable to agree with the contentions of the learned Counsel for the Petitioners. The Requisitioning Act provides for the requisitioning and acquisition of immovable property for the purposes of the State, From the plain reading of the provisions of the Requisitioning Act, I have no hasitation in holding that the proceedings which were initiated for requisitioning the land of the Petitioners for the purpose of providing a water course to Respondent No. 3, could not legally be initiated under that Act.

The Canal Act is a special Act and deals with a particular subject. In addition to other matters, it makes provision for the construction, alignment and realignment of water courses. If any person wishes to have a water course constructed, the only remedy available to him is to move the canal authorities under the Act, and not to seek remedy under the Requisitioning Act.

It seems that the proceedings under the Requisitioning Act were initiated when either the Northern India Canal and Drainage (Amendment) Act. 1958 (Punjab Act No. 21 of 1958) by which Sections 30-A to 30-F, which provide for the construction, alteration and realignment of water courses, were introduced, had not come into force, or these amended section were not within knowledge of the canal authorities and Respondent No 3. Reference may be made to the reply of Respondents 1 to 2 which reads as under:

The relevant file was forwarded to the District Magistrate on 8th June 1959 whereas the Northern India amended Canal and Drainage Act VIII of 1873 assented to by the President on 3rd May 1953, was received in the Divisional Canal Officer on 6th September 1959. It was as such incumbent on the Petitioners to move the District Magistrate for sending back the file to the Divisional Canal Officer. But the Petitioner did not make any such application with the idea of availing two different forms in case the decision of the District Magistrate went against them. They purposely slept over that and waived their right as such they are now estopped from talking the plea that the Divisional Canal Officer was competent and the provision of Sections 30 A to 30 F were available when the case was originally disposed of by the District Magistrate.

From the aforesaid reply it further seems clear that in this case the canal authorities have been under the impression that before the introduction of Sections 30-A to 30-F, provision for a new water course could also be made by resorting to proceedings under the Requisitioning Act. However, whatever may have been the reason for initiating the proceedings under the Requisitioning Act, the fact remains that no proceedings could be initiated for constructing a water course for a particular individual under that statute that the proceedings taken under the Requisitioning Act were not legal and that any decision given in such proceedings cannot operate as res judicate nor can it be a bar to fresh proceedings under the Act. The proceedings under the Act were rightly started and connot be quashed on this ground.

It was next contended by the learned Counsel that no notice was issued to Petitioners 1 to 3 nor was the proposed scheme published in accordance with law. In my view this contention too has no merit. In the written statement it is specifically stated that notice was servel personally on Khazana, Petitioner No. 4, who is a co-sharer with Petitioners 1 to 3. It is also stated that Petitioners I and 2 are his real nephews and Petitioner No. 3 is his real brother It is further evident from the reply in paragraph No. 9 of the written statement that Khazana appeared before the sub Divisional Canal Office on 22nd February, 1934 and filed objections on his own behalf as well as on behalf of other Petitioners. His statement was also recorded on 22nd February, 1964, which bears his thumb impression. In this situation, it is very unfair for the Petitioners to have challenged the legality and correctness of the impugned order on the ground that they were not heard ana were not given proper opportunity. There is no material on the record to hold that the scheme was not published in accordance with law.

Lastly a half-hearted contention was raised that the impugned action of the Divisional Canal Officer suffers from mala fides. There is hardly any material on the record to return a finding, on this aspect of the matter, in favour of the Petitioners.

No other ground is urged.

For the reasons recorded above, this petition fails and is dismissed, but in the circumstances of the case I make no order as to costs.