Hardam Singh vs Superintending Canal Officer and Others

Sat Pal, J.—This writ petition is directed against the order, dated 27th February, 1996 passed by the Superintending Canal Officer, Sir-hind Canal Circle, Ludhiana.

Briefly stated the facts of the case are that an application u/s 68(2) of the Northern India Canal & Drainage Act, 1973 (herein after referred to as the Act) was filed by the respondent No. 3 along with certain other persons. This application was allowed by the Deputy Collector, Bhatinda, vide order dated 7th March, 1989. The order of the Deputy Collector, Bhatinda was challenged by the petitioner and some other persons. The appeal filed by the petitioner and others was allowed by the Divisional Canal Officer, Bhatinda vide his order dated 20th April, 1989 copy of which has been annexed as Annexure P-1). Thereafter respondent No. 2 filed fresh application u/s 68(1) of the Act somewhere in January, 1994 on the ground that he has separated from his brother and the land had given divided equally between two brothers. It was prayed that the turn of the two brothers should be separated and his turn should be kept at the head moga and the turn of his brother be kept of Khata No. 27. This application was opposed by the petitioner. The Deputy Controller vide his order dated Ist February 1994 (Annexure P-2) rejected the prayer of respondent No. 3. Aggrieved by this order the respondent No. 3 filed an appeal before the Divisional Canal Officer, Bhatinda who by his order dated 16th November, 1995, accepted the appeal of the respondent No. 3. Against this order, the petitioner filed an appeal on 23rd November 1995 and copy of the grounds of appeal is annexed as Annexure P-5. In the appeal, it was specifically alleged that on the same facts previously one application was filed by Hakam Singh and others (including Balvinder Singh who is the son of Hakam Singh) and that was decided by the then Divisional Canal Officer u/s 68(5) of the Act vide his order, dated 20th April, 1989 and so respondent No. 3 (Balwinder Singh) had got no right to file another application for the change of Waravandi. This appeal was rejected by the Superintending Canal Officer, Sirhind Canal Circle vide his order dated 27th February, 1996 copy of which is annexed as Annexure P-6. The aforesaid order has been challenged by the petitioner in this writ petition.

Mr. Kathuria, learned counsel appearing on behalf of the petitioner, submitted that the petitioner had specifically pleaded before the Superintending Canal Officer that the father of respondent No. 3 and some other persons had previously filed one application on the same subject matter u/s 68 of the Act and that application was allowed by the Deputy Collector, Bhatinda but on appeal filed by the petitioner, the decision of the Deputy Collector, Bhatinda, was reversed vide orders dated 20th April, 1989 and by this order, the Divisional Canal Officer had rejected the prayer of respondent No. 4 for change of sequence of Warabandi. He further submitted that though this point has been noticed in the impugned order, but no finding has been given by the Superintending Canal Officer on this point. He, therefore, contended that the impugned order passed by the Superintending Canal Officer is liable to be set aside on this ground. In support of his contentions, the learned counsel placed reliance on the following judgments :

i) Kartar Singh v. Superintending Canal Officer and Ors. 1982 P.L.J. 486;

ii) C.W.P. No. 12735 of 1995, (Teja Singh v. SCC Ludhiana and Ors.,) decided by Division Bench on 16th November, 1995;

iii) C.W.P. No. 9570 of 1994, (Hardeep Kaur v. Superintendents Canal Officer etc.) decided on 26th July, 1995,

Mr. Sidhu learned counsel appearing on behalf of respondent No. 5, however, contended that the order of the Collector dated 20.4.1989 fixing Warabandi has not become final for all times to come. He, however, submitted that since the land has been separated by respondent No. 3 from his brother and in view of the change of the circumstances, the order dated 16th November, 1995 (Annexure P-3) was passed by the Divisional Canal Officer which was upheld vide order dated 27th February, 1996 (Annexure P-6) passed by the Superintendent Canal Officer. In support of his contention he placed reliance on a judgment of this Court in Gulzar Singh and Ors. v. Sadhu Singh and Ors. (1973)75 P.L.R. 450.

I have heard the learned counsel for the parties and have perused the records. From the grounds of appeal filed by the petitioner before the Superintending Canal Officer (copy of which is annexed as Annexure P-5), I find that the petitioner had raised a specific ground that on the same facts and circumstances, an application was filed by respondent No. 3 in the year 1989 which was allowed by the Deputy Collector, Bhatinda, but the order of the Deputy Collector, Bhatinda, was set aside by the Divisional Canal Officer vide his order, dated 20th April, 1989 (Annexure P-1) and as such fresh application filed by respondent No. 3 on the some subject (which culminated in the order dated 27th February, 1996 passed by the Superintending Canal Officer) was not maintainable. From the impugned order (Annexure P-6) I find that though this point was noticed by the Superintending Canal Officer he has not given any finding on this point though this point was quite relevant for adjudication of the controversy raised in this case. In view of these facts the order dated 27th February 1996 passed by the Superintending Canal Officer cannot be sustained.

For the reasons recorded herein above, I set aside the order dated 27th February, 1996 passed by the Superintending Canal Officer and the case is remanded to the said officer for decision afresh in accordance with law and the observations made herein above. The parties are, however, left to bear their own costs. The parties are directed to appear before the Superintending Canal Officer on 6th January, 1997.