Kitab Singh and Others vs Chief Canal Officer and Others

V.K. Jhanji, J.—The present writ petition has been directed against the orders of the Authorities under the Haryana Canal and Drainage Act, 1974 (hereinafter referred to as the ''Act''), whereby, 13.81 acres of area of respondents No. 5 and 6 has been excluded from the Out Let R. D. No. 17800/T. L. of Daulatpur Minor, Adampur Bhakra Canal Division, Hisar, and transferred to Out Let R. D. No. 20145/T. L. of Sahu Minor, District Hisar.

The petitioners are irrigating their land from water course from Out Let R. D. No. 20145/T. L. of Sahu Minor in Tohana Division, whereas part of holding land of respondents No. 5 and 6 is being irrigated from Out Let R. D. 17800/T. L. of Daulatpur Minor and part of their land is being irrigated from Out Let R. D. No. 20145/T. L. of Sahu Minor. Respondents No. 5 and 6 made an application to the Divisional Canal officer of their respective divisions, for the transfer of 13.81 acres of land which was being irrigated from Out Let R. D. No. 17800/T.L. of Daulatpur Minor to Out Let R. D. No. 20145/T.L. of Sahu Minor on the plea that their area under reference was not receiving proper irrigation from the existing source. On receipt of the application, the matter was got investigated through Sub Divisional Officer, Saniana Zilladar Mandhri and Zilladar Gorakhpur who after investigation and inspection of site, recommended the transfer of area of respondents No. 5 and 6 from existing source to Out Let No. R. D. 20145/T. L. of Sahu Minor. A Scheme was pre-pared u/s 17 of the Act. The said Scheme was published as per provisions of the Act by both the Divisions after inviting objections and suggestions, if any, to the Scheme. Notices were duly served upon all the concerned share-holders of both the Out Lets through Patwaris Halqa and the case was fixed for hearing before the Divisional Canal Officers, Adampur Bhakra Canal Division as well as Tohana division. The case was finally heard by both the Divisional Canal Officers on 9th of March, 1990, and on examining the record and hearing the concerned share holders of Out Let R.D. No. 17800/ T.L. of Daulatpur Minor as well as of Out Let R. D. No. 20145/T.L. of Sahu Minor, both the Divisional Canal Officers vide order dated 22-3-1990, approved the Scheme in the interest of better irrigation and on the bases of consideration of holdings. They also decided that any expenditure incurred for the adjustment of the Out Let shall have to be borne by respondents No. 5 and 6. The petitioners being aggrieved of the order of the Divisional Canal Officers, filed an appeal before the Superintending Canal Officer, Hisar Bhakra Canal Circle, Hisar.

The main grievance of the petitioners in the aforesaid appeal was that the two Divisional Canal Officers acted beyond their jurisdiction as they were not empowered under the Act to decide the matter jointly. The superintending Canal Officer before whom the appeal was filed by the petitioners, dismissed the same vide order dated 20-6-1990 as he was of the view that where two running Canal Divisions are involved and their area is to be transferred from one area to another, joint hearing and decision is a must.

The petitioners preferred an appeal before the Chief Canal Officer, Haryana, Chandigarh, against the order dated 22-3-1990 passed by Divisional Canal Officer and order dated 26-6-1990 passed by Superintending Canal Officer. The Chief Canal Officer, Haryana, after finding that area of respondents No. 5 and 6 at Out Let R D. No. 17800/T.L. of Daulatpur Minor is getting only 47% irrigation as against 98% of average irrigation of other area in the vicinity, dismissed the appeal of the petitioners vide order dated 19-12-1990. The petitioners have impugned the orders of Divisional Canal Officers, Superintending Canal Officer and Chief Canal Officer in this writ petition.

Learned counsel for the petitioners contended that order of the Divisional Canal Officer is without jurisdiction inasmuch as there is no provision in the Act where hearing and joint decision could be given by two Divisional Canal Officers. He also contended that if the impugned order is allowed to stand, their irrigation would be adversely affected due to reduction in Wari time.

On the other hand, learned counsel for respondents No. 5 and 6 contended that authorities under the Act having decided the matter after hearing the parties and examining the record and the site, this Court should not interfere in exercise of its powers under Article 226 of the Constitution of India.

After hearing the learned counsel for the parties at length, I find no merit in the writ petition. Admittedly, area of respondents No. 5 and 6 are being irrigated from Out Let R.D. No. 20145/ T. L. of Sahu Minor as well as from Out Let R.D. No. 17800/T.L. of Daulatpur Minor. As both the Out Lets are within the jurisdiction of different Canal Officers, the petitioners had no alternative but to apply to both the Divisional Canal Officers. Admittedly, u/s 17 (b) of the Act the Divisional Canal Officer is competent to transfer the area from one Out Let to another. However, before passing such an order, the Divisional Canal Officer is required to prepare a draft scheme and get it published u/s 18(1) of the Act inviting objections and suggestions is respect thereof within 21 days of its publication. If any objections and suggestions are filed against the Scheme, the Divisional Canal Officer is required to consider the same and after considering such objections and suggestions, he is entitled to approve, modify or reject the scheme as provided under sub-section (2) of Section 18 of the Act. . As far as the facts of the present case are concerned, the draft Scheme was prepared and published in accordance with the provisions of the Act. Moreover, before the Chief Canal Officer, the petitioners made no such grievance.

In my view, there is no bar under the Act to decide the matter jointly by two Divisional Canal Officers if the Out Lets fall within the jurisdiction of different Divisional Canal Officers. As far as the other grievance of the petitioners, that their irrigation would be adversely affected due to reduction in Wari time, is concerned, I find no merit in the same. The matter was thoroughly considered by the Authorities under the Act and this Court in exercise of its powers under Article 226 of the Constitution of India will not substitute its own view on the merits of the case in a matter which is within the sole discretion of the Authorities so named under the Act. Even otherwise, the Chief Canal Officer, Haryana, in his order dated 19-12-1990 has clearly stated that revised alteration from the Out Let would be approved after inclusion of proposed area as per rules.

As a result thereof, I find no merit in this writ petition, and same is accordingly dismissed. However, the parties are left to bear their own costs.