Gurcharan Singh vs Baldev Singh

Amar Dutt, J.—This revision petition is directed against the order dated 17.4.1998 passed by the Additional District Judge, Sirsa, restraining the defendants-respondents from implementing the orders dated 5.12.1995 and 6.1.1997 passed by defendants-respondents No. 3 and 4 respectively.

Gurcharan Singh, petitioner, had filed a suit for declaration to the effect that the orders dated 5.12.1995 and 6.1.1997 for shifting the Naka from Rect. No. 289 Killa No. 6 to Rect. No. 290 Killa No. 9/2x13 from outlet 8620-Left Chormar minor of village Kalanwali, was null and void, void ab initio and non-existent in the eyes of law and do not affect the right of the plaintiff and are liable to be set aside. The defendant was a co-sharer in outlet No. 8620-Left Chormar minor for the last 15 years as his land was being irrigated from the Naka of Rect. No. 289 Killa No. 6. In the year 1987 plaintiff had applied for shifting to theNaka and the Deputy Collector came to the conclusion that the same could not be accepted as it will harm the interest of the family of the respondent. This decision which was given on 17.9.1987 was not challenged in appeal and became final between the parties. In the year 1995 Garcharan Singh again applied for the change of the Naka and the same was decided in his favour and the change was allowed. The appeal filed by Baldev Singh was allowed by the X-en but in second appeal the Superintending Engineering had accepted the case of the petitioner for shifting the Naka through the impugned order dated 6.1.1997. This order was sought to be challenged in the suit on ground that it was not a speaking order and had been passed against the mandatory provisions of the Haryana Canal and Drainage Act, 1974 (for short Act). Alongwith the suit an application under Order XXXIX Rules 1 and 2 CPC was fifed for grant of interim relief in the same terms during the pendency of the suit. This application was contested by the defendants. After hearing the counsel for the parties, the Additional Civil Judge (Sr. Division), Dabwali dismissed the applicalion. In appeal, the Additional District Judge was of the view that the impugned order was not a speaking one, therefore, prima facie case has been made out for accepting the appeal and restraining the respondents from implementing the impugned order during the pendency of the suit. Gurcharan Singh has come up in revision.

According to the petitioner while passing the impugned order, the Addl. District Judge has lost sight of the fact that according to the provisions of the Act, the order passed by the canal authorities while exercising jurisdiction u/s 55 of the Act cannot be challenged in any civil Court as has been provided in Section 55(7) of the Act. Such an order, according to the petitioner can be assailed only in writ jurisdiction. It was also submitted that no order can normally be passed restraining a party from performing his official duly and, therefore, the impugned order should be set aside.

In defence of the order, it was submitted on behalf of the respondents that previous application for change of the Naka had been rejected. Therefore, it had attained finality qua the private parties in the litigation. It was also submitted that while there is no doubt that it might have been better if the impugned orders had been challenged in writ jurisdiction yet the same being without jurisdiction, Section 55(7) of the Act could operate as a bar. The appeal filed before the Superintending Engineer had been accepted without notice to the respondents.

1 have carefully considered the respective submissions made by the counsel for the parties.

The facts giving rise to the filing of the present petition are not in dispute. Baldev Singh respondent had approached the civil Court for declaration that the orders passed by respondents No. 3 and 4 were without jurisdiction on the ground that previous application filed by the petitioner in the year 1987, seeking the same relief had been dismissed and that the Superintending Engineer has not only reversed the order passed by the X-en without notice but while doing so has not given any reasons. The suit and the application were contested on the ground that the respondent ought to have filed a writ petition under Articles 226/227 of the Constitution of India to challenge the impugned order instead of the civil suit as the jurisdiction of the civil Court to entertain the suit was baited by the provisions of Section 55 of the Act because the change of Naka could not be effected u/s 17 of the Act. In any case, even if the order is taken to have been passed u/s 55(6) of the Act, the same could not be assailed before the civil Court in view of the provisions of Section 55(7) of the Act. Since the learned counsel appearing before me have not been able to make available the impugned orders, it is not possible forme to go into the question whether the impugned orders have been passed under Sections 17 and 20 of the Act or u/s 55 of the Act. There is, however, no dispute that shifting of the Naka which was initially ordered on 5.12.1995 was not implemented during the pendency of the appeal and the revision nor has the revisional order been given effect to till today.

In these circumstances when the order of the Divisional Canal Officer is being assaited on the ground that the provisions of Section 17 of the Act have not been complied with inasmuch as the draft scheme has not been prepared and published and the appellate order is being assailed on the ground that it is not a speaking order and has been passed without hearing the respondents, I feel that the balance of convenience and the ends of justice demand that the implementation of the orders impugned in the suit is stayed during the pendency of the suit. The hardship, if any, that the petitioner is likely to suffer can be reduced by directing the Courts below to dispose of the suit as expeditiously as possible and preferably within a year from today. Ordered accordingly.

With the above order and direction, the petition stands disposed of.

Petition dismissed.