Hazura Singh vs The State of Punjab, etc.

A.D. Koshal, J.—The facts leading to this petition under Articles 226 and 227 of the Constitution of India would be better appreciated with reference to a plan which is appended to the petition as Annexure "A". In that plan the L-Shaped khal in dispute is delineated by the letters EXY and runs along the western and southern boundaries of killa No. 12 of rectangle No. 122. Admittedly this khal lies in land belonging to the Petitioner and was demolished by him in the year 1968. Respondent No. 5 who had been using the khal earlier for irrigating his fields, made an application to the Sub-Divisional Officer (Canals), Respondent No. 4, who, after making an investigation, passed an order on the 20th of July, 1968 (Annexure "C" to the petition) holding that Respondent No. 5 had been using the disputed khal for the preceding 15 years and directing that it be restored through police help. The khal was so restored and the Petitioner, therefore, went up in appeal to the Divisional Canal Officer (Respondent No. 3) who, on the 24th of February, 1970, set aside the order of Respondent No. 4 on the following grounds (Annexure ("G" to the petition):

(1) The Dhuri Khal (which is shown in the plan in blue and is delineated by letters ABCDEFG) was running through the fields of Respondent No. 5.

(2) A number of khals was already running the fields of the Petitioner and thus causing him loss.

(3) If there is some raised area with Respondent No. 5, he can irrigate it by "bharai.

The order passed by Respondent No. 3, however, was set aside in second appeal on the 8th of April, 1970, by the Superintending Canal Officer, Respondent No. 2, (Annexure "H" to the petition) "in the interest of irrigation and on technical grounds".

His reasoning is reproduced here:

Both the parties have been heard in detail. The Dhuri Khal ABCDEFG not only irrigates the tak of the Appellants and Respondents but even goes further D/S to irrigate a good lot of area in the Chak of outlet R.D. 29,375/L Wadhni Disty.

The country slope being from North to South, this Dhuri Khal cannot irrigate the field Nos. 122/16, 17, 18 and 123/20. So he has to resort to irrigation from the link W/C EXY.

It is the order of the Superintending Canal Officer passed in second appeal which is impugned by the Petitioner.

This petition must succeed for the simple reason that the proceedings taken by the canal authorities contravene the express provisions of Section 30-FF of the Northern India Canal and Drainage Act (hereinafter referred to as the Act) which runs thus:

30FF. (1) If a person demolishes, alters enlarges or obstructs a watercourse or causes any damage thereto, any person affected thereby may apply to the Divisional Canal Officer for directing the restoration of the watercourse to its original condition.

(2) On receiving an application under Sub-section (1), the Divisional Officer may, after making such enquiry as he may deem fit, require, by a notice in writing served on the person found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore at his own cost, the watercourse to its original condition within such period as may be specified in the notice.

(3) If such person fails to the satisfaction of the Divisional Canal Officer to restore the watercourse to its original condition within the period specified in the notice served on him under Sub-section (2) the Divisional Canal Officer may cause the watercourse to be restored to its original condition and recover the cost incurred in respect of such restoration from the defaulting person.

(4) Any person aggrieved by the order of the Divisional Canal Officer, may prefer an appeal within thirty days of the passing of such order, to the Superintending Canal Officer, whose decision on such appeal shall be final.

(5) Any sum which remains unpaid within a period to be specified for this purpose by the Divisional Canal Officer may be recovered by the Collector from the defaulting person as if it were an arrear of land revenue.

This is the only section under which the reconstruction of a demolished watercourse can be ordered. According to it, the Divisional Canal Officer is the only authority before whom proceedings can be initiated. Such proceedings must also commence with an application made by the party affected by the demolition and in no other way. Neither of these requirements is fulfilled in the present case. Respondent No. 5 made his application not to the Divisional Canal Officer but to one of his subordinates, namely, the Sub-Divisional Officer who had no jurisdiction to proceed with the application or to pass any order on it. The Divisional Canal Officer was no doubt ultimately moved but that was through an appeal in which the Petitioner who was a person responsible for the demolition of the watercourse figured as the Appellant. No action was taken by the Divisional Canal Officer in pursuance of any application under Sub-section (1) so that the proceedings before him also were tainted with illegality and the order passed by him cannot be deemed to be one sanctioned by Section 30-FF. And if that be so, the Superintending Canal Officer had also no jurisdiction to vary that order on the assumption that it was legally good. In this view of the matter all the three orders passed by the canal authorities (Annexures "C", "G" and "H" to the petition) must be held to have been passed in contravention of the provisions of Section 30FF and, therefore, liable to be quashed.

It was urged on behalf of the Respondents that even in the situation arising from the finding just above arrived at, the Court should not grant any relief to the Petitioner in exercise of its writ jurisdiction inasmuch as if the orders of the canal authorities were quashed, the parties would have to seek relief over again from two of them, namely, the Divisional Canal Officer and the Superintending Canal Officer who had already expressed their opinion on the merits of the case and had done substantial justice to the parties. It is no doubt true that if the Court grants the petition, the parties would be forced to have recourse to the provisions of Section 30-FF which envisages the passage of orders with regard to the dispute by the Divisional Canal Officer in the first instance and by the Superintending Canal Officer as the appellate authority. Normally the result would be a duplication of the proceedings already taken but I find that the order of the Superintending Canal Officer is vitiated by an erroneous observation. According to him:

The country slope being North to South, this Dhuri Khal cannot irrigate the field Nos. 122/16, 17, 18 and 123/20. So he has to resort to irrigation from the link watercourse EXY.

The general slope of the terrain is no doubt from north to south but it appears that this is not true in the case of killas Nos. 122/16 and 123/20. A reference to the plan would show that killa No. 122/25 which lies to the south of killa No. 122/16 and to the south-west of killa No. 123/20 has a level higher than that of either of them so that both of them can be irrigated without difficulty through killa No. 122/25. This means that if the impugned order of the Divisional Canal Officer is upheld, Respondent No. 5 would get khal EXY merely for facilitating the irrigation of two of his killas, namely, 122/17 and 122/18 which also, as remarked by the Divisional Canal Officer, he can irrigate through bharai from the Dhuri Khal. It thus appears to me that the reconstruction of khal EXY which, as already stated, lies entirely in the fields belonging to the Petitioner is not demanded by the ends of justice. However, I am not prepared to substitute my own judgment in this matter for that of the canal authorities who, when approached by either of the parties, would be at liberty to pass such orders as they may think just and proper in the circumstances of the case.

In the result I accept the petition and not only quash the order of the Superintending Canal Officer (Annexure "H" to the petition) but also those passed by the two officers below (Annexures "C" and "G" to the petition). The Petitioner shall have his costs of these proceedings. Counsel''s fee Rs. 100.