Jaswant Lal and Others vs Superintending Engineer, Western Jumna Canal, Kohtak and Others

Mehar Singh, C.J. and D.K. Mahajan, J.—This is an appeal under clause 10 of the Letters Patent from an order, dated February 4, 1966, of a learned Single Judge dismissing a petition under Articles 226 and 227 of the Constitution by the appellants.

The land of the appellants is irrigated by outlet RD. 18914-L of the Katesra minor of the Western Jamuna Canal. The ten appellants belong to village Anwal of Rohtak District. Respondents 3 and 4, Hans Raj and Ram Dhan, also own land in the same village, but it is irrigated from outlet RD. 141025-R of Kahnaur distributary of the same canal. They made an application u/s 20 of the Northern India Canal and Drainage Act, 1873 (Act 8 of 1873), to the Divisional Canal Officer, Rohtak Division, that 46 acres land of theirs in rectangles Nos. 123, 135 and 136, irrigated by outlet RD. 141025-R of Kahnaur distributary, be transferred to outlet RD. 183I4-L of Katesra minor. By an order, copy Annexure A, the Divisional Canal Officer, respondent 2, accepted the application of respondents 3 and 4 and transferred their land to be irrigated from outlet RD. 18914-L of Katesra minor. The appellants filed an appeal against that order which was dismissed by the Superintending Engineer, respondent 1, by an order which was conveyed under letter, copy Annexure B, of April 7, 1964 It was on that that the appellants filed a petition under Articles 226 and 227 of the Constitution questioning the order of the Superintending Engineer broadly on two grounds (a) that for the irrigation of the lard of respondents 3 and 4 from outlet RD. 18914-L, the already existing watercourse was not sufficient and for its extension proper procedure has not been followed for acquiring the land of the appellants and others concerned, and (b) that for the matter of extension of the watercourse from that outlet, procedure as provided in sections 30-A to 30-F has not been followed. In the return by respondents 1 and 2 it was first pointed out that the Divisional Canal Officer had jurisdiction to permit supply of water from the existing watercourse, that is to say, watercourse emanating from outlet RD. 18914-L of Katesa minor, that persons concerned were duly given notice before the order was made, and that to irrigate the land of respondents 3 and 4 the watercourse would need extension of about twelve Karams at its end but that that would not diminish the water supply of the appellants. It was further stated that so far as the matter of extension of that watercourse was concerned, proceedings for acquisition of land in accordance with the provisions of Act 8 of 1873 will be taken. It was specifically pointed out that by the transfer of the land of respondents 3 and 4 to outlet RD 18914-L of Katesra minor, the shareholders of that outlet will not suffer in any case as the size of the outlet will be increased correspondingly and the irrigators will get more supply of water during less period.

In these circumstances, the learned Judge was of the opinion that no right of the appellants has been violated, because respondents 1 and 2 were going to act according to the statute. So the petition was dismissed.

The learned counsel for the appellants contends that section 20 of Act 8 of 1873 is not attracted to the case of extension of a watercourse though it does deal with the supply of water through some existing watercourse. He refers to sections 30-A to 30-F of the Act and says that it is a scheme prepared according to those sections which deal with, among other matters, the question of extension of a watercourse. This is so. In the present case it appears that the water supply is to be given to respondents 3 and 4 through an existing watercourse except for a short distance of about twelve Karams. To that stage section 20 of the said Act of course applies. But for the matter of extension of that watercourse to give full benefit to respondents 3 and 4 of the supply of water, recourse has to be had to the other provisions of the Act such as section 30-A to 30-F, and in this respect an under-taking has been given that the watercourse shall not be extended except in accordance with the provisions of Act 8 of 1373. This is not a case which is wholly covered by section 20, though it may be completely covered by sections 30-A to 30-F of that Act. So this argument on the side of the appellants cannot succeed In this respect the learned counsel for the appellants has referred to Maman v. The State of Punjab C.W. 655 of 1964, Civil writ No. 655 of 1964 decided on January 19, 1966, by a Division Bench consisting of my learned brother, Mahajan J., and Falshaw C.J., in which it has been held by the learned Judges that section 20 does not authorise the Divisional Canal Officer to shift an outlet from one place to another so as to command more area of land for irrigation. But the facts in the present care are, as shown above, distinctly different, and, therefore, Maman''s case is of no assistance to the appellant in the present appeal.

The learned counsel for the appellants then urges that on the undertaking given by respondents 1 and 2, the petition of the appellants should have been accepted, whereas is having been dismissed, respondents 1 and 2 are taking the dismissal in the wrong light. The contention of the learned counsel amounts to as much to say that respondents 1 and 2 are minded to forget the undertaking given by them in the return made to the petition of the appellants. If any such doubt lingers with respondents 1 and 2, it is stated for clarity that they have to abide by that undertaking and it is on that basis that the petition of the appellants was dismissed by the learned Single Judge. Even otherwise, while the order of respondents 1 and 2 is legally sustainable u/s 20 of the Act to the extent of supply of water to respondents 3 and 4 through the existing water channel from RD. 18914-L; so far as the extension of that watercourse is concerned, of course that can only be done by those respondents in accordance with law. There can, therefore, be no mistake in this respect.

With the direction as above, this appeal is dismissed, but there is no order in regard to costs.