Murli Dhar Mehta vs Yash Paul

R.L. Anand, J.—Shri Murli Dhar Mehta has filed the present writ petition under Articles 226/227 of the Constitution of India against the respondents No. 1 to 4 i.e. Yash Paul son of Gurbax Rai; Deputy Collector, Sirsa, Divisional Canal Officer Sirsa Division and Superintending Canal Officer, Sirsa for issuance of a writ in the nature of certiorari praying for the quashment of orders Annexures P2, P3 and P4 respectively.

It has been averred by the petitioner that he as well as respondent No. 1 Yash Paul irrigate their lands from outlet R.D. 131200R Sheikhpura Disty Village Alika. One Ram Kishan moved an application under Section 55 of the Haryana Canal and Drainage Act, 1974 (hereinafter called the Act) for the change of warabandi of the canal water. The Deputy Collector, Sirsa Division, respondent No. 2 consolidated the holding of respondent No. 1 Yash Paul in Rect. No. 48 inspite of the fact that major portion of his holding measuring 20 acres falls in Rect. Nos. 66 and 51 at Khata No. 27. Aggrieved by the order Annexure P2 passed by respondent No. 2, the petitioner filed an appeal before respondent No. 3, Divisional Canal Officer, under Section 55(5) of the Act and his appeal was also dismised by respondent No. 3 without applying the mind. Thereafter the petitioner filed a revision against the said order before the Superintending Canal Officer, respondent No. 4 who also dismissed the same on 5.10.1987 vide Annexure P4. Attack has been made by the petitioner Murli Dhar in the present writ petition to the orders Annexures P2, P3 and P4 on the ground that those are nonspeaking one and the authorities have not complied with the mandatory provisions of the law before passing the said orders. It was further contended that the principles of natural justice have not been adhered to by the respondentauthorities in passing the orders Annexures P2, P3 and P4.

Notice of the writ petition was given to the respondents. Only respondent No. 1 Yash Paul filed the written statement and denied the allegations. According to this respondent, the writ petition was not maintainable because the dispute involved in the present writ was earlier compromised between the parties. The dispute regarding the fixing of the waris of the petitioner and respondent No. 1 was adjudicated upon by the Deputy Collector Rori Division on 24.5.1973 and the petitioner was placed prior to the answering respondent. Feeling aggrieved by the order, the petitioner filed an appeal before the Divisional Canal Officer, Sirsa, contending that the sequence of waris as fixed by the Deputy Collector was detrimental to the interest of the petitioner. After inspecting the site on 9.1.1974 in the presence of both the parties and after carefully scrutinising the record, the Divisional Canal Officer dismissed the appeal on 21.1.1974. The petitioner again filed a revision before the Superintending Canal Officer. The matter was compromised and consent order dated 17.7.1974 was passed and the wari of respondent No. 1 was fixed after the wari of the petitioner. In the light of the above compromise the petitioner is not entitled to reagitate the same matter once again. On merits, the stand of respondent No. 1 is that the orders Annexures P2, P3 and P4 are perfectly valid and no fault can be found in the same. It was also pleaded by respondent No. 2 that the impugned orders have been passed keeping in view the interest of best irrigation. Moreover, the petitioner has not been able to show as to what prejudice has been caused to him by the consolidation of the wari of the answering respondent so as to entitle him to raise a dispute regarding the consolidation of wari. The petitioner is in the habit of dragging the respondents in the litigation.

In support of their contentions, the parties have also placed some documents and I will make a brief reference of the relevant Annexures in the subsequent portion of the judgment. Section 55 of the Act deals with the powers of the Deputy Collector to order use or distribution of water and settlement of differences. This section reads as follows :

"55. Power of Deputy Collector to order use or distribution of water and settlement of differences. (1) The Deputy Collector may, if in his opinion it is necessary to do so, pass an order as to the use or distribution of water from a watercourse amongst persons in any estate or a group of estates or in any holding or group of holdings in such estate or estates :

Provided that no such order shall be passed by the Deputy Collector without making an inquiry into the matter and without giving a notice to all the persons interested that on a day to be named in such notice, he shall proceed to enquire into the said matter.

(2) Whenever a difference arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a watercourse, any such person may apply in writing to the Deputy Collector stating the matter in dispute.

(3) On receipt of an application under subsection (2) the Deputy Collector shall give notice to the other persons interested that, on a day to be named in such notice, he shall proceed to enquire into the said matter and after the inquiry he shall pass an order thereon.

(4) An order passed under subsection (1) or subsection (3) as to the use or distribution of water for any crop sown or growing at the time when such order is made or with regard to the construction or maintenance of watercourse shall subject to an order passed on appeal or revision under subsections (5) and (6) be final.

(5) An appeal shall lie to the Divisional Canal Officer against an order referred to in subsection (4) within a period of thirty days from the date of such order.

(6) The Superintending Canal Officer within whose jurisdiction the watercourse is situated, may, suo motu or on an application made in this behalf by an aggrieved person, revise an order passed in appeal by a Divisional Canal Officer under subsection (5) :

Provided that no such application shall lie unless it is made within a period of thirty days from the date of such order.

(7) No order passed under this section shall be liable to be called in question in Civil Court."

The above provision would show that the respondentauthorities have the powers to regulate the waris of the various landowners whose lands are being irrigated from the different outlets.

The only argument which was raised by Shri P.N. Makani, appearing on behalf of the petitioner was that the impugned orders Annexure P4 which was passed in revision by the Superintending Canal Officer, Sirsa dated 5.10.1987 is illegal as this order is a nonspeaking one. In support of his contention, the learned counsel for the petitioner has drawn my attention to the decision itself, which runs as follows :

"I have heard both the parties along with their counsel at length. The missal along with Khaka plan has been examined carefully. I find the warabandi fixed in order and as per rules. The appeal is, therefore, rejected and decision of the Divisional Canal Officer upheld.

Decision be conveyed".

On the contrary, it was submitted by Shri L.N. Verma, Advocate, appearing on behalf of respondent No. 1 that the present writ is liable to be dismissed on the short ground that the petitioner has not been able to show as to what prejudice has been caused to him by the different orders Annexures P2, P3 and P4. The only source of better irrigation has been achieved by respondent No. 1 from the proposed source of irrigation and the orders have been passed after taking into consideration this aspect of the matter and after inspection of the lands of the petitioner as well as of the respondents. It was also submitted that the person who moved the application namely Ram Kishan has never challenged the orders Annexures P2, P3 and P4. The present petitioner has filed the present petition in order to drag respondent No. 1 into litigation and as a matter of hobby. It was also argued by the learned counsel for the respondent that the present writ petition is liable to be dismissed in view of the earlier order dated 17.7.1974 which was based on consent.

After considering the rival contentions of the parties, this Court is of the considered opinion that the present writ petition is devoid of any merit though the latter part of the argument raised by the learned counsel for the respondent that in view of the decision dated 17.7.1974, the present petition is not maintainable does not hold any water. The proved facts are that the orders Annexures P2, P3 and P4 have been passed by the respective competent authorities after full application of mind although the orders are quasi judicial in nature yet, the principles of natural justice have not been violated. It is also established and proved on record that vide different orders respondent No. 1 was provided with a better source of irrigation without detriment to the interests of the present petitioner Murli Dhar. Before I deal with the main argument raised by the learned counsel for the petitioner, it will be necessary for me to refer to the earlier two orders Annexures P2 and P3 passed on 21.7.1986 and 11.5.1987, respectively. Annexure P2 was passed by Deputy Collector who took up the matter on the application of Ram Kishan. The matter was got investigated by Ziledar and he recommended the claims of the applicant Ram Kishan. On receipt of the case the notices were issued to all concerned including the contesting parties of the writ petition. Murli Dhar made a statement before the Deputy Collector that the wari of the area of Yash Paul respondent which falls prior to the area of Sain Datta may be fixed first and then the wari of Sain Datta and then the remaining area of Yash Paul be irrigated and then his turn may be fixed. This demand of Murli Dhar was not found genuine and was rejected. After considering the report of Ziledar, the Deputy Collector passed orders dated 21.7.1986. Petitioner was not satisfied with this order and he preferred an appeal Annexure P3. It was categorically held by Divisional Canal Officer that the area of Murli Dhar was located prior to Yash Paul respondent and the respondent was not ready to get any new watercourse. In the absence of watercourse there was no justification to fix the wari of respondent as proposed by the appellant (Murli Dhar). It was also held by Divisional Canal Officer that the consolidation of wari of the area of respondent did not affect the wari of the appellant; hence the appeal of Murli Dhar was rejected and decision of Deputy Collector, Sirsa was upheld. Learned counsel for the petitioner has not been able to show that this order was without jurisdiction or was not based on the appreciation of factual position as determined by the Ziledar. Murli Dhar went in revision. The counsel for the parties raised various arguments including the argument which was raised by the counsel appearing on behalf of the respondent that the slope of the land of his client is from West to East i.e. reverse slope and for that reason his client was not prepared to accept the offer of the petitioner. This aspect of the case was duly considered by the revisional authority in the light of the argument which was raised by the counsel appearing on behalf of Murli Dhar and after applying its mind and after examining the missal along with the khaka plan, the revisional authority i.e. the Superintending Canal Officer, rightly came to the conclusion that the warabandi fixed by the authorities below was in order and as per rules. In this view of the matter, the primary argument raised by learned counsel Shri Makani that the order Annexure P4 was passed without application of mind is not correct and the authority Chand Singh v. Superintending Canal Officer, 1973 PLJ 652 relied upon by the learned counsel is not applicable to the facts in hand.

Argument was also built by placing reliance on Annexure P1 Aks Shajra showing the location of the lands of the petitioner and it was submitted that the authoritiesrespondents No. 2 to 4 had illegally fixed the wari. This argument is factually incorrect and cannot be accepted in the writ jurisdiction. Still in order to allay the fears of the petitioner, it is noticed that the land of the petitioner remains on one side of the main irrigation source. Earlier the land of respondent No. 1 used to be irrigated from source mark A, B and C. With the change of wari the naka of the source has gone adjoining to the land of Ram Kishan. Still the land of the petitioner comes first and with the challenged decision the interests of the petitioner are not likely to suffer nor it has been shown that the petitioner will get lesser quantity of water. I have already stated above that it has been observed by the authorities that slope of the land of respondent No. 1 from one side was higher and that necessitated for the change of the wari which is being agitated by the petitioner in the present writ petition. Be that as it may, I have not been able to see any illegality in the impugned orders Annexures P2, P3 and P4. Only a better source of irrigation has been provided to respondent No. 1 without detriment to the interest of the petitioner and in these circumstances, the petitioner has not been able to show any prejudice from the impugned orders which are based on proper appreciation of evidence and have been passed according to law.

Resultantly, this Court is of the considered opinion that there is no merit in this writ petition which is hereby dismissed leaving the parties to bear their own costs.