Madan Lal vs Gopi

V.K. Jhanji, J.—In this writ petition, challenge is to order dated 10.9.1982 passed by the Chief Canal Officer, Hissar whereby orders dated 20.5.1982 and 22,11.1981 passed by Superintending Canal Officer and Divisional Canal Officer respectively have been set aside.

In brief, the facts are that respondents No. 1 to 3 are shareholders and their land was being irrigated from outlet RD 26495-L of Jakhaud Distributary. They applied to the Divisional Canal Officer for inclusion of their Chak in outlet RD 29245-L. On receipt of application, a scheme was framed and published for invit-ing objections. The petitioners, objected to the scheme. Divisional Canal Officer, vide order dated 22.11.1981 though held that the demand of respondents No. 1 to 3 is quite genuine but declined their prayer for transferring their area from one outlet to another on the ground that unless the question of sharing of watercourse is decided, any decision regarding transfer of that area will be meaningless. In appeal, the Superintending Canal Officer upheld the order of the Divisional Canal Officer. The Superintending Canal Officer was further of the view that since respondents No. 1 to 3 are irrigating their land from outlet RD 29245-L for a number of years and the shareholders of outlet RD 29245-L are opposed to the transfer of area of respondents No. 1 to 3 from one outlet to another, it will not be proper to shift the outlet. In appeal preferred under sub-section (2) of Section 20 of Haryana Canal and Drainage Aci, 1974 (hereinafter referred to as the Act), the Chief Canal Officer, how ever, set aside orders of Divisional Canal Officer and Superintending Canal Officer and ordered transfer of area from outlet RD 29245-L to outlet RD 29245-L on certain conditions like payment of costs etc. Order of Chief Canal Officer is being challenged here in this petition on the ground that the Chief Canal Officer has not given any plausible reason for setting aside orders of Divisional Canal Officer and Superintending Canal Officer.

After hearing the learned Counsel for the petitioner and on going through the record, I find that no exception can be taken to order of the Chief Canal Officer.

It is not in dispute that on an application filed by respondents No. 1 to 3 for transferring of their area from one outlet to another, a Scheme was framed by the Divisional Canal Officer and petitioners who were opposed to the Scheme, filed objections. The claim of respondents No. 1 to 3 for transferring of area from one outlet to another was found to be genuine by Divisional Canal Officer but was rejected because he was of the opinion that the question involved is in regard to sharing of watercourse and the same can be decided only if respondents No. 1 to 3 take consent of other shareholders of outlet No. RD 29245-L or apply under suitable section of the Act.

In appeal, the Superintending Canal Officer also found that respondents No. 1 to 3 were having problems in irrigating their land from outlet No. RD 26945-L but their claim was rejected only because respondents No, 1 to 3 had been irrigating their land from outlet No. RD 26945-L and shareholders of outlet RD 29245-L were opposed to the transfer. The Chief Canal Officer, on reconsideration of facts, found that respondents No. 1 to 3 were having difficulty in irrigating their land from the existing outlet. He found that the length of watercourse from the outlet of respondents No. 1 to 3 was nearly 12000 from the existing outlet against 9450 from the proposed outlet No, RD 29245-L, He thus opined that if area is transferred to the proposed outlet, then it would be easier for respondent No. 1 to 3 to keep a watch and bring water from a shorter distance. As regards the objection that respondents No. 1 to 3 had not paid costs of lining of the watercourse, the same has been taken care of by the Chief Canal Officer by directing respondents No, 1 to 3 to make payment of upto date instalments of costs for the lining of the watercourse,

The contention of learned Counsel that the order of the Chief Canal Officer is against the provisions of the Act is without any substance. As a matter of fact. Divisional Canal Officer as well as Superintending Canal Officer committed an error in rejecting the claim of respondents No. 1 to 3 on the ground that their case is not of shifting of outlet but of sharing of watercourse and for this, consent of shareholders of the proposed outlet is necessary. The claim of respondents No. 1 to 3 was of shifting of area from one outlet to another and this is expressly provided u/s 1 7(1)(c) of the Act. In such cases, there is no provision for obtaining consent of share-holders of the proposed outlet,

The order of the Chief Canal Officer being based on factual consideration and he being the best judge in such like matters, it would not be proper for this court in proceedings under Article 226 of the Constitution to convert itself into a Court of appeal and re-appreciate the facts found by him in favour of respondents No. 1 to 3.

Resultantly, the writ petition is dismissed. There shall, however, be no order as to costs.