Chatru and others vs Surta and another

B.S. Yadav, J.—Chatru and others, who are now appellants, had filed a suit (which has given rise to this appeal) against defendant No. 1 Surta (now respondent No. 2) for mandatory injunction for demolition of the Khal in dispute. It was alleged in the plaint that surta defendant was owner of land nituated towards the East of the land of the plaintiffs and his land used to be irrigated from the water course passing through the land of one Allah Singh. However, defendant No. 1 in connivance with the Canal Authorities got a water course dug through their land. It was also alleged by the plaintiffs that they did not receive any notice nor any compensation was paid to them in respect of that water course.

Surta defendant contested the suit and pleaded that the suit of the plaintiffs was not maintainable in Civil Court as they had not exhausted the remedy available to them under the Northern India Canal a Draingage Act, 1873 (hereinafter Called the Act). He also alleged that the water course in dispute was a sanctioned one and was given to him in consolidation proceedings and as the plaintiffs had demolished it, therefore, the Canal Authorities had got it restored.

Upon the allegations of the parties, the learned Trial Court-framed the following issues:-

Whether the present suit is maintainable?

Whether the Civil Court has no jurisdiction to try this suit?

Whether the defendants dug Khal in dispute illegally?

Relief.

Under issue No. 1 it was held that the present suit was maintainable. Under issue No. 2 it was held that the water course in dispute was a running one and fell within the definition of section 30-FF of the Act and it was restored in December 1965, by the Canal Authorities after adopting the procedure laid down in section 30-FF of the Act and, therefore the suit was barred u/s 3-G of the Act. No independent finding was given under issue No. 3 but while discussing issue No. 3 he remarked that as the procedure u/s 30-FF had been followed in restoring the Khal it cannot be said that the Khal in dispute was illegally dug by the defendants. As a result of the finding under issue No. 2 the trial Court dismissed the suit of the plaintiffs.

The plaintiffs filed an appeal which was heard by II Additional District Judge, Karnal who dismissed the same. Feeling aggrieved, the plaintiffs have come to this Court in appeal.

At the very outset I may say that though the defendant Surta in his written statement has taken the pleas that the water course in dispute was given to him during consolidation proceedings and was also a sanctioned one under the provisions of the Act but during the trial no evidence was led on the above points. During his statement the stand taken by him was that the water course had been given to him by the Panchayat. No member of the Panchayat was produced. In fact, both the Courts below did not take that plea of the defendant seriously and did not discuss it.

The only argument advanced before me was whether Civil Court had jurisdiction to decide the dispute between the parties. The Learned Counsel for the respondent have placed reliance on section 30-G of the Act which reads as follows :--

30-G. Notwithstanding anything contained in this Act or other law for the time being in force no Civil Court shall have jurisdiction to entertain or decide any question relating to matters falling u/s 30.A to 30-FF.

I am of the opinion that the above section will have application only if the procedure laid down u/s 30 FF of the Act is followed while restoring the water course. Section 30-FF of the Act reads as follows :--

30-FF. (1) If a person demolishes, alters, enlarges or obstructs a watercourse or causes any damage thereto, any person affected thereby may apply to the Divisional Canal Officer for directing the restoration of the watercourse to its original condition.

(2) On receiving an application under sub-section (1) the Divisional Canal Officer may, after making such enquiry as he may deem fit, require by a notice in writing served on the person found to be responsible for so demolishing altering, enlarging, obstructing or causing damage, to restore at his own cost, the watercourse to its original position within such period as may be specified in the notice.

(3) If such person fails, to the satisfaction of the Divisional Canal Officer, to restore the watercourse to its original condition within the period specified in the notice served on him under sub-section (2) the Divisional Canal Officer may cause the watercourse to he restored to its original condition and recover the cost incurred in respect of such restoration from the defaulting person.

(4) Any person aggrieved by the order of the Divisional Canal Officer, my prefer an appeal within thirty days of the passing of such order to the Superintending Canal Officer whose decision on such appeal shall be final.

(5) Any sum which remains unpaid within a period to be specified for this purpose by the Divisional Canal Officer may be recovered by the Collector from the defaulting person as if it were an arrears of land revenue.

Sub-clause (2) of the above section requires that on receiving an application under sub-section (1) the Divisional Canal Officer, may, after making such enquiry as he may deem fit, require by a notice in writing served on the person found to be responsible for so demolishing to restore at his own cost. In the present case said sub-section has not been complied with. It is an admitted fact that the Divisional Canal Officer did not make any enquiry and on the other hand, enquiry was made by Ram Dhari Ziledar (D.W. 1) who issued notice Exhibit D. 5 under his own signatures to Chatru plaintiff. The Act does not provide that the Divisional Canal Officer can delegate the functions of making an enquiry to its subordinate. Bakhtawar Singh and others v. Superintending Canal Officer, Sirhind Canal Circle, Ludhiana & others 1973 P.L.J. 622 relates to a case where the enquiry was not made by the Divisional Canal Officer himself. Tuli J., who decided that cake remarked :--

One thing, however, is quite evident that the Divisional Canal Officer himself did not make any enquiry what soever before requiring the petitioners to restore the alleged dismantled water-course BC. The provisions of section 30-FF of the Northern India Canal & Drainage Act are quite clear, that is, on receiving an application under sub-section (1) the Divisional Canal Officer himself has to make an enquiry. It has been stated by the petitioners that no notice of any such enquiry was given by the Divisional Canal Officer and that fact is not denied by respondents 1 and 2. I, therefore, hold that the basis of the notice issued by the Divisional Canal Officer to the petitioners requiring them to restore the dismantled water-course is non-existent. The impugned notice issued is, therefore, without jurisdiction because the Divisional Canal Officer could not delegate the power to any subordinate officer. In this view of the matter, the notice issued by the Divisional Superintending Canal Officer on appeal are liable to be quashed, as being without jurisdiction.

The above ruling was relied upon in Kheta Ram v. The State of Haryana 1974 P.L.J. 294 and it was further held :--

As the Divisional Canal Officer has not complied with the statutory provisions while passing the order, therefore, the jurisdiction of this Court is not excluded. In case the Divisional Canal Officer wants to proceed under the aforesaid section, he can do so in accordance with the provisions of section 30-FF.

In the present case even the notice Exhibit D. 5 requiring Chatru plaintiff to restore the Khal is invalid because it was not signed by the Divisional Canal Officer but the Ziledar. There is no provision in the Act that the Divisional Canal Officer can delegate his powers to the Ziledar to sign the notice. In fact, in the present case there is no order of the Divisional Canal Officer as contemplated by sub-section (3) of section 30-FF of the Act. The order about the restoration of Khal with the help of the police and addressed to the Ziledar concerned is signed by Harbans Lal (D.W. 3) who in those days was posted as Reader to the Sub Divisional Canal Officer. Under clause (3) of the said section only the Divisional Canal Officer can pass the order.

The Learned Counsel for the respondents have argued that if the plaintiffs were aggrieved by any order passed under clause (3) of section 30-FF of the Act, they could have filed an appeal as provided by clause (3) of that section and they cannot go to the Civil Court. In support of his contention he has cited Munshi Ram and others v. Municipal Committee Chhahatra AIR 1979 S.C. 125. That ruling is not attracted to the facts of the present case. As mentioned above, there is no proper order under sub-section (3) of section 30-FF of the Act against which an appeal could be filed. As the whole procedure about the restoration of the Khal is illegal, there is no question of appeal. The plaintiffs can ignore the action of Ram Dhari Ziledar (D.W. 1) and Harbans Lal Reader (D.W.3)

Hence I hold that the Civil Court has jurisdiction.

In view of my above discussion. I accept the present appeal, set aside the judgments and decrees of the Courts below and decree the suit of the plaintiffs subject to the condition that the Divisional Canal Officer, in case he wants to proceed about restoration of Khal, can do so in accordance with the provisions of section 30-FF of the Act. In the circumstances I leave the parties to bear their own costs.