Boota Singh and others vs Sahi Ram and others

I.S. Tiwana, J. (Oral)

The order of the Superintending Canal Officer dated July 4, 1972 (Annexure `D'' to the petition), is impugned primarily on the ground that before passing the same no notice or hearing was afforded to the petitioners. This fact was noticed even at the time of the Motion hearing when the Division Bench recorded that neither the presence of the petitioners was recorded in the impugned order nor did the records of the case produced before the Bench indicate the issuance of any notice to the petitioners. As the respondent authorities had not filed any written statement at that stage, the case was admitted to a regular hearing. Now in the written statement this is what has been pleaded :

"Para 4 is admitted to the extent that Shri B.S. Gill, Superintending Canal Officer vide his order dated 1.9.70 adjourned the case with the directions that the request of Sh. Dhanna Ram (respondent No. 3) will be decided after site inspection. It is also admitted that Shri A.S. Sekhon heard the revision petition on 4.7.1972. It is incorrect to suggest that Superintending Canal Officer decided the case on 4.7.72, without hearing the petitioner. He issued the necessary notice to all the shareholders of the outlet RD 149900Malukpur Disty. before hearing, the service of the same was affected and ensured as per provision of rules 79A to 79I of the Northern India Canal and Drainage Act VIII of 1873. The notice in this case related to so many numerous persons having the same interest that personal service on each of them was not practicable and as such the notice was served in person on the available shareholders and for the rest the proclamation were made by pasting a certified copy at a common and convenient place in the village and by beat of drum as provided under rules 79A to 79I of the said Canal Act."

A bear reading of the contents of the above noted paragraph indicates that the officer filing this writ statement as either not aware of the implications and requirements of rules 79A to 79I of the Northern India Canal and Drainage Act or he was simply evading the answer to the above noticed issue. Rule 79D makes it imperative that every summons, notice, order or requisition, which is required to be served on or delivered or communicated to a person, has to be so served, delivered or communicated personally. It is only in a given situation as envisaged by rule 70F that the cosharers, when their number is numerous, that they can be served through a substituted service. In the case in hand neither any order has been referred to nor produced before me showing that the authority concerned was at any stage satisfied that the petitioners or other persons required to be served could not be served personally in compliance with the provisions of rule 79D. In the absence of the same the procedure adopted could not be resorted to. I am, therefore, satisfied that there was no legal or valid service on the petitioners before the passing of the impugned order and for this short reason alone this order is unsustainable and has to be set aside. I order accordingly. This, however, does not debar the Superintending Canal Officer from redeciding the matter after hearing the parties concerned after ensuring proper and legal service upon them.