Gulzar Singh and another vs Sadhu Singh and others

P.C. Jain, J.—Sadhu Singh and other plaintiffs filed a suit for declaration to the effect that the order dated February 18, 1985, passed by the Divisional Canal Officer, Jandiala Division, Amritsar, regarding Mogha Buji No. RD 65400 of Bhinder Rajbaba being against law and without jurisdiction, did not affect the rights of the plaintiffs A further relief for the grant of a permanent injunction was also claimed against defendants 1 to 6 restraining them from watering their land situated in village Bania from the Khal in dispute, on the strength of the impugned order. The plaintiffs alleged that they were the owners of the land situated in village Waning, which was irrigated from Mogha Burji No. R.D. 65400/L of Rajbaba Bhinder and that the claim of defendants 1 to 6 that they had been sanctioned the right of getting water to their land, situated in village Bania from the said Mogha under the order by the Deputy Collector, Jandiala Division, Amritsar, on February 18, 1965, was illegal. The legality of the order was challenged on the ground that no notice had been served upon them by the Deputy Collector.

The suit was resisted by the defendants, inter alia, on the grounds that their land had been transferred to the Mogha by the Canal authorities, that the order of the Deputy Collector was legal and that the civil Court had no jurisdiction.

The trial Court decided issue No. 1 in favour of the plaintiffs and granted a decree, as prayed for, vide its judgment and decree dated July 21, 1966. Feeling aggrieved from the judgment and decree of the trial Court, some of the defendants preferred an appeal, but the same was dismissed with costs by the Additional District Judge Amritsar, vide his judgment and decree dated December 2, 1968. It is in these circumstances that the present regular second appeal has been filed by Gulzar Singh and others.

The only contention that was raised before me by Mr. Roop Chand Chaudhary, learned counsel for the appellants, was that in view of the provisions of subsection (7) of section 68 of the Northern India Canal and Drainage Act, 18 73 (hereinafter referred to as the Act), the civil Court had no jurisdiction to entertain the suit. According to the learned counsel, the proper and appropriate remedy for the respondents was to have approached the higher authorities by way of an appeal and revision and not by way of filing a suit in the civil Courts. On the other hand, it was submitted by Mr. Dhillon, learned counsel for the plaintiff-respondents, that the impugned order of the Deputy Collector was without jurisdiction and as such the civil Court had jurisdiction to entertain the suit.

After giving my thoughtful consideration to the entire matter, I am of the view that there is considerable force in the contention of the learned counsel for the appellants

For facility of reference, section 68 of the Act may be reproduced, which reads as under:--

Power of Deputy Collector to order use or distribution of water:--

(1) The Deputy Collector may, if in his opinion it is necessary so to do pass an order as to the use or distribution of water from a watercourse amongst persons in any estate or a group of estates or in any holding or group of holding in such estate or estates :

Provided that no such order shall be passed by the Deputy Collector without making an inquiry into the matter and without giving a notice to all the persons interested that on a day to be named in such notice, he shall proceed to inquire into the said matter

(2) Whenever a difference arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a water-course, any such person may apply in writing to the Deputy Collector stating the matter in dispute.

(3) On receipt of an application under sub-section (2), the Deputy Collector shall give notice to the other persons interested, on a day to be named in such notice, he shall proceed to inquire into the said matter, and after the inquiry he shall pass an order thereon.

(4) An order passed under subsection (1) or sub-section (3) as to the use or distribution of water for any crop sown or growing at the time when such order is made or with regard to the construction or maintenance of a water course, shall, subject to an order passed on appeal or revision under sub section (5) and (6), be final.

(5) An appeal shall lie to the Divisional Canal Officer against an order referred to in subsection (4) within a period of thirty days from the date of such order.

(6) The Superintending Canal Officer, within whose jurisdiction the watercourse is situated, may, suo motu, or on an application made in this behalf by an aggrieved person, revise an order passed in appeal by a Divisional Canal Officer under sub-section (5);

Provided that no such application shall lie unless it is made within a period of thirty days from the date of such order.

(7) No order passed under this section shall be liable to be called in question in any civil Court.

This section gives power to the Deputy Collector to order use or distribution of water and for the exercise of that power, detailed procedure is prescribed in the section. From the bare reading of the section, it is clear that against the decision of the Deputy Collector, an appeal is provided to the Divisional Canal Officer and a revision is provided before the Superintending Canal Officer. Sub-section (7) provides that no order passed under this section shall be liable to be called in question in any civil Court. It was not disputed before me by Mr. Roop Chand Chaudhry, learned counsel for the appellants that if an order is wholly without jurisdiction, then legality of such an order can certainly be called in question by filing a civil suit. But his contention has proceeded on the ground that if the order merely sufferred from some irregularities, then the remedy available to the aggrieved party, was to resort to the procedure provided under the Act, and not by way of filing a suit. After giving my thoughtful consideration to the relevant provisions of the Act, I find that there is great merit in the contention of the learned counsel for the appellants.

The language of sub-section (7) of section 68 ousts the jurisdiction of the civil Courts completely and there seems to be justifiable reason for doing so. u/s 68 of the Act, the Deputy Collector decides only about the use and distribution of water He does not decide any question of title. The order of the Collector fixing the Warabandi does not become final for all times to come. If one Warabandi is suggested at one time, then after some time, on the application of an aggrieved person, the same can be changed. The litigation in a civil Courts generally takes a long time. The fixing of Warabandi u/s 68 of the Act, is a temporary arrangement. It may go on for some years or it may be changed earlier. If a suit is filed against an order fixing the Warabandi and that order in the meantime is modified or reversed by the appropriate authority, then the civil suit is liable to become infructuous. It was for some such reasons why Legislature thought of completely ousting the jurisdiction of the civil Court in cases falling u/s 68 of the Act and provided remedy of an appeal and revision before the higher authorities.

Moreover, the order passed under particular statute can be challenged in a civil Court, if the same has been passed without jurisdiction. The main ground on which the legality of the order of the Deputy Collector was challenged was that no notice had been issued to the plaintiff-respondents. If an order is alleged to have been passed. Without issuing notice, then it is not a nullity or wholy without jurisdiction as has been held by a full Bench of this Court in Dhaunkal v. Man Kauri and another (1970) 72 P.L.R. 82, and is only voidable. In such a situation the proper course for the plaintiffs was to have approached the appellate or the revisional authority under the Act and civil suit was not the appropriate remedy. In this view of the matter I reverse the finding of the Courts below and hold that in the cases falling u/s 68 of the Act, the jurisdiction of the civil Court is completely barred.

No other point was urged.

For the reasons recorded above. I allow this appeal, set aside the judgment and decree of the appellate Court and dismiss the plaintiffs'' suit. In the circumstances of the case I make no order as to costs.