Gajjan Singh and Others vs The State of Punjab and Others

Daya Krishan Mahajan, J.—This petition under Articles 226 and 227 of the Constitution is directed against the order of the Superintending Engineer, Tube-well Circle, Chandigarh, dated the 6th of September, 1966 (Copy Annexure ''B'' to the writ petition), whereby the water-course A B F has been altered by water-course BCDF in the plan agreed to by both the parties and marked by me to-day as Exhibit C-1. The objection of the Petitioner is that the Superintending Engineer had no jurisdiction to alter the water-course A B F by having recourse to the provisions of Section 30-B(3) of the Northern India Canal and Drainage Act, 1873, as amended by Punjab Act No. 23 of 1965. The argument is this that under the unlamented Act a scheme, when it was prepared u/s 30-A, was finally approved by the Superintending Engineer and his order was final inasmuch as no appeal or revision against that order was provided. The watercourse A B F was prepared under the old Act. After the coming into force of the amended Act an application was made by Jang Singh, Respondent No. 4, on the ground that the watercourse A B F bifurcated his fields and it be removed. On his application the Superintending Engineer proceeded to act u/s 30-B(3) and in exercise of the revisional powers conferred by that provision altered the watercourse A B F to B C D F. This course, according to the learned Counsel for the Petitioners is not permissible, because the revisional power is only against the order of subordinate officer namely the Divisional Canal Officer who is admittedly equal in rank to the Executive Engineer, and the revisional officer is admittedly of the rank of the Superintending Engineer. Mr. K.S. Kwatra, who appeared for the State of Punjab, raised the contention that the Superintending Engineer had not approved the watercourse A B F, but had in fact approved a watercourse between Kilo Nos. 23 and 24, 18 and 17, 13 and 14, 8 and 7 of rectangle No. 95. If the Superintending Engineer had passed an order u/s 30-E and given effect to what had been approved by him, no objection could have been taken to that order. But what the Superintending Engineer did was that instead of giving effect to what he had approved under the old Act, he provided a new water channel from B to C, from C to D, and from D to F. This course could only be adopted by recourse to the provisions of Section 30-A and not otherwise. This is abundantly clear from the combined reading of the old provisions as well as the new ones. No power of review has been conferred on the Superintending Engineer and he cannot review his own order. The power of revision is only against an order of a subordinate authority. Therefore the impugned order, by which he has altered his own previous final order, is certainly without jurisdiction.

Mr. Kwatra finally urged that no injustice had been caused to the Petitioners. This contention has no meaning when an order wholly without jurisdiction is passed.

Mr. J.S. Wasu, who appears for Jang Singh, has raised the contention that the point which has now been made by the Petitioners'' learned Counsel was not raised in the writ petition. This contention loses sight of the fact that a supplementary petition was filed by the learned Counsel with the leave of this Court, and in it the contention has been raised. The State has put in a reply to the supplementary petition and the position remains where it was. The stand taken up by the Canal authorities in their reply is not justified.

For the reasons recorded above, I allow this writ petition, quash the order (Annexure ''B''), passed by the Superintending Engineer and direct that he should give effect to his final order passed under the old Act, and in case he wants to shift the watercourse, he should take proceedings in accordance with Section 30-A of the Act. In the circumstances of the case, there will be no order as to costs.