Dharambir Singh vs Superintending Canal Officer and Others

Rameshwar Singh Malik, J.—The present petition is directed against the order dated 8.12.2010 (Annexure P-7), passed by the Superintending banal Officer, whereby the orders dated 1.10.2010 (Annexure P-5), passed by the Divisional Canal Officer and 12.4.2010 (Annexure P-2), passed by the Deputy Collector, Water Services Division, Jind-respondent No. 3, were upheld thereby changing the warabandi (turn of water'') of the petitioner, by passing non speaking and cryptic orders. Undisputed facts which are necessary for disposal of this writ petition are that an application was moved before the Deputy Collector, Water Services Division, Jind-respondent No. 3, by the shareholders of RD-78600-R for refixation of warabandi (turn of water). Pursuant to the application aforementioned, warabandi was prepared by Ziledar and Halqa Patwari, showing the turn of water of the petitioner at Sr. No. 43 and that of the Gaushala at Sr. No. 44. However, vide impugned order dated 12.4.2010 (Annexure P-2.), respondent No. 3 has fixed the turn of water of respondent no.4 after the Gaushala at Sr. No. 40, whereas the turn of water of the petitioner has been fixed at Sr. No. 44, as depicted from Annexure P-3. Dissatisfied, the petitioner filed his appeal before respondent No. 2, who dismissed the same, vide order dated 1.10.2010 (Annexure P-5) and thereafter the appeal was also dismissed by respondent No. 1, vide impugned order dated 8.12.2010 (Annexure P-7. Feeling aggrieved against the above said impugned orders, the petitioner has approached this court by way of instant petition, invoking the writ jurisdiction of this court, under Articles 226/227 of the Constitution of India.

Notice of motion was issued and pursuant thereto, joint written statement was filed on behalf of respondents No. 1 to 3, whereas a separate written statement was filed on behalf of respondent No. 4.

Learned counsel for the petitioner submits that the impugned orders, besides being totally non speaking and cryptic, are also contrary to the fact situation obtaining at the site. He relies upon the site plan (Annexure P-9), to contend that admittedly, land of the petitioner comes first than the land of respondent No. 4 and earlier petitioner was getting his turn of water before respondent No. 4. Learned counsel for the petitioner finally prays for allowing the writ petition and for setting aside the impugned orders.

Per contra, learned counsel for the State submits that the turn of water was changed in the interest of better irrigation. Supporting the contention raised by learned counsel for the State, learned counsel for respondent No. 4, submits that no prejudice has been caused to the petitioner by passing the impugned orders, because of which the writ petition was liable to be dismissed, being without any merit.

Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that present writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.

During the course of hearing, learned counsel for the parties are ad-idem that land of the petitioner comes first than the land of respondent No. 4. Further, no reasons much less cogent reasons thereof have been assigned by either of the respondent canal authorities in support of their respective impugned orders. The first order passed by respondent No. 3 is only to the effect that demand of the applicant is genuine and accepted, whereas the demand of the petitioner is said to be not genuine and rejected. No reason, whatsoever, is forthcoming.

Similarly, respondent No. 2, while dismissing the appeal of the petitioner, also did not record any reason. The relevant part of the impugned order dated 1.10.2010 (Annexure P-5), passed by respondent No. 2, reads as under:-

The case heard from perusal of Khaka Plan, statement of both the parties and other relevant record. This court find no ground to disagree with the decision of Deputy Collector, Jind and as such the appeal is rejected and decision of Deputy Collector, Jind is upheld.

Further, even the Superintending Canal Officer-respondent No. 1, failed to record any reasons, while upholding the decision of respondent no.2. The operative part of the impugned order dated 10.12.2010 (Annexure P-7), passed by respondent No. 1, reads as under:-

A review of the sketch plan/revenue missal reveals that there is no substance in appeal. This court finds no ground to disagree with the decision of DOC, Jind and as such the appeal is rejected and decision of DCO Jind is upheld.

The decision may be conveyed to the concerned shareholders through Halga Patwari under relevant provision of Canal & Drainage fact 1974 amended 1976.

During the course of arguments, learned counsel for the respondents could not substantiate their plea and they fairly state that the impugned orders were not supported with any reasons.

In this view of the matter, the important question of law that arises for consideration of this court is "whether the respondent canal authorities are under legal obligation to record reasons in support of their orders, while deciding the rights of the parties under the Haryana Canal Drainage Act, 1974 (hereinafter referred as to ''the Act)". The source of irrigation is the source of livelihood for the farmers who are ultimate beneficiaries under the Act. Their rights of irrigation are governed under the statutory provisions of the Act. Undoubtedly, procedure is laid down under the Act and statutory rules made thereunder to deal with every such situation, including the one involved in the present case.

Be it a case for providing new water course, be it a case for changing the alignment of an existing water course, be it a case for changing the warabandi (turn of water), as in the case in hand, be it a case for restoration of water course, it has to be considered and decided, in accordance with the provisions of the Act and assigning cogent reasons in support of the orders. Having said that, this court feels no hesitation to conclude that the respondent canal authorities, being the statutory authorities under the Act, are under legal obligation to record reasons in support of their orders. The non speaking and cryptic orders, as have been passed in the present case, are no orders in the eyes of law and cannot be sustained.

Why it was felt necessary to record reasons in support of any decision? This cardinal principle of law came up for consideration before the Hon''ble Supreme Court more than five decades ago. In the beginning, there was distinction drawn between the administrative orders and quasi judicial orders. The Hon''ble Supreme Court in the case of Harinagar Sugar Mills Ltd. Vs. Shyam Sundar Jhunjhunwala and Others, observed that although the order was an administrative order, yet their lordships insisted on the requirement of recording reasons.

Again, in the case of Bharat Raja Vs. The Union of India (UOI) and Others, a Constitution Bench of the Hon''ble Supreme Court examined the question, whether the Central Government was bound to pass a speaking order, while dismissing the revision and confirming the order of the State Government in the context of Mines and Minerals (Regulation and Development) Act, 1957. The Hon''ble Supreme Court emphasized on recording the reasons by the revisional authority under the Act.

However, with the passage of time, this distinction was also done away with by the Hon''ble Supreme Court in the case of A.K. Kraipak and Others Vs. Union of India (UOI) and Others, Thereafter, the law laid down by the Hon''ble Supreme Court in A.K. Kraipak''s case (supra) has been consistently followed in a plethora of judgements.

Another Constitution Bench of the Hon''ble Supreme Court in the case of H.H. Shri Swamiji of Shri Amar Mutt and Others Vs. Commissioner, Hindu Religious and Charitable Endowments Department and Others, : AIR 1980 SC 1, has relied upon the Latin principle, which reads as under:-

"Ces-sante Ratione Legis Cessat Ipsa Lex" and the English version of this Latin principle is as follows:

Reason is the soul of the law and when the reason of any particular law ceases, so does the law itself.

The above said golden rule of law has again been reiterated by the Hon''ble Supreme Court in the case of Kranti Associates Pvt. Ltd. and Another Vs. Sh. Masood Ahmed Khan and Others, Recent Apex Judgments (R.A.J.) 485 : 2010 (9) SCC 496. The relevant observations made by the Hon''ble Supreme Court in para 15 of its judgement in M/s. Kranti Associates''s case (supra) reiterating the law laid down in A.K. Kraipak''s case (supra) read as under:-

The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgement of this Court in A.K. Kraipak and Others Vs. Union of India (UOI) and Others,

The Hon''ble Supreme Court, after having discussed the law on this issue referring to a catena of judgements, recorded its conclusion in para 51 of the judgement, which reads as under:-

Summarizing the above discussion, this Court holds:-

a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

b. A quasi-judicial authority must record reasons in support of its conclusions.

c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

g. Reasons facilitate the process of judicial review by superior Courts.

h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.

j. Insistence on reason is a requirement for both judicial accountability and transparency.

k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ''rubber stamp reasons'' is not to be equated with a valid decision making process.

m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to error but also makes them subject to broader scrutiny. (See David Shapiro in Defence of judicial Candor (1987) 100 HLR 731-737),

n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must he given for judicial decisions".

o. In all common law jurisdictions judgements play vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process."

The law laid down by the Hon''ble Supreme court aptly applies to the facts of the present case. It is so said because a bare combined reading of the three impugned orders, passed by the respondent canal authorities in the present case, would make it crystal clear that none, out of the three authorities, have recorded any reasons in support of their respective impugned orders, much less cogent reasons thereof. In this view of the matter, the impugned orders cannot be sustained.

Respectfully following the law laid down by the Hon''ble Supreme Court in M/s. Kranti Associates'' case (supra), it is unhesitatingly held that the canal authorities are the statutory authorities under the Act and they are bound to record reasons in support of their orders, passed under the Act. It is imperative for the canal authorities to record reasons because whenever their orders are challenged before this court and are subject to judicial review, it would be known as to what was the reason, which prevailed with the authority, while passing the orders.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that the impugned orders are liable to be set aside, being non speaking and cryptic orders and the same are hereby set aside.

Resultantly, the instant writ petition stands allowed. The case is remanded back to the Divisional Canal Officer with a direction to decide afresh, in accordance with law, besides keeping in view the observations made hereinabove and after granting due opportunity of being heard to both the parties.

However, before parting with the judgement, this court is constrained to observe that very many similar petitions are being filed before this court, wherein the canal authorities working under the Northern India Canal & Drainage Act, 1873 (as applicable to Punjab), as well as under the Haryana Canal & Drainage Act, 1974, are passing non speaking orders, without recording any cogent reasons in support of their orders. Thus, this court feels it a compulsive necessity that the authorities under the respective Canal Acts of both the States are required to be sensitised on this issue, so as to achieve the object of legislative intent. Keeping this object in view, the Chief Secretary, Punjab, as well as the Chief Secretary, Haryana, are directed to issue appropriate instructions to all the authorities, working under the Canal Act of their respective State, alongwith a copy of this order, directing them to record reasons in support of their orders, ensuring meticulous compliance of the relevant provisions of law and also the law laid down by the Hon''ble Supreme Court of India as well as this court. They are further directed to send their respective action taken reports to this court, within a period of three months from the date of receipt of a copy of this order.

A copy of this order, under signatures of the Court Secretary, attached to this Bench, be supplied to the learned counsel for the State of Punjab, as well as learned counsel for the State of Haryana, for onward transmission to the Chief Secretaries of both the States, for compliance thereof.