Nand Singh and others vs The State of Haryana and others

Bal Raj Tuli, J.—The petitioners are residents of village Suratia, tahsil Sirsa, district Hissar, and they are irrigating their lands from outlet R D. 240000 R, Bhakra Main Line Branch. The State Government took a decision to reduce the supply of water from direct outlets on main canals and branches to 60 per cent of the normal water allowance in the area so as to ensure equitable distribution of water to the cultivators. This decision, as is clear from the revenue file produced for our perusal, was taken by the Government in September, 1971. The decision was conveyed to the Chief Engineer, Irrigation Works, Haryana sometime in December, 1971, and the Chief Engineer further communicated this decision to the Superintending Engineers by letter dated January 3, 1972. The Superintending Engineers further communicated this decision to the Executive Engineers fur compliance. It was also decided that the reduction in water allowance should be carried out in stages, each stage being not more than 25 per cent in terms of para 3 (a) of the A & C No 54 dated November 26, 1945, of the Revenue Missal (us permissible in case of overdrawing outlets) As a result of this order, the reduction in the water allowance was made by 25 per cent in April, 1972 and this petition was filed against the said order. The petition was admitted by the Motion Bench and operation of the order reducing the water allowance was stayed.

Written statement has been filed by the Deputy secretary to Government Haryana, Irrigation and Power Departments, in which it has been stated:

As a matter of policy of the Government, the direct outlets on main canals and branches are not to be allowed save in exceptional circumstances. Accordingly, whenever such direct outlets have been santioned in the recent past in few cases, they have been allowed only 60% of the normal water allowances. But some direct outlets on main canals and branches, which had been sanctioned long back, are still getting normal water allowance. The main canals and branches run round the year whereas the distributaries and minors are subjected to rotational closures restricting their running to 200 to 240 days in a year. This has resulted, into inequitable distribution of supply of canal water.

In order to remedy this anomalous situation, the Chief Engineer, Irrigation Works, sent a proposal to the Government for reduction of water allowance from normal to 60 per cent in stages for the outlets on main canals and branches which were sanctioned earlier at the normal water allowance.

The proposal of the Chief Engineer was examined with reference to rules etc. The Government is competent to change the water allowance in view of the provisions of Chapter XIII of the P. W. D. Punjab Irrigation Branch Revenue Manual. After thoughtful consideration of the matter, the Government decided to change the water allowance for direct outlets on main canals and branches to 60% of the normal water allowance by stages. The orders of the Government were issued to the Chief Engineer (Canals) Irrigation Works, Haryana, vide memo. No. 8053 41 WD-II-71/37728, dated 13th December, 1971.

This decision of the State Government is justified under para 13. 1 of the P.W.D. Irrigation Branch Revenue Manual. This para, so far as relevant, reads as under:

13.1 In the absence of specific delegation, no officer has the power to authorize any change in the water allowance sanctioned by Government for any tract of country

The basis on which water is 10 be distributed is laid down under the authority of Government for all areas in which irrigation is established. From these orders is derived the outlet capacity to be provided for a specific area

From this paragraph it is clear that it is within the power of the State Government to sanction the water allowance for any area of the State and if the State Government, in the interest of equitable distribution of available water, takes a decision which applies to the entire State, it cannot be said that the exercise of power is arbitrary or uncalled for. It is a matter of general knowledge that the length of canals, branches and distributaries has increased ever since the partition of the country and the available water in the canals has to irrigate much more area than was being done previously. Instead of benefiting only a part of the population, it is a laudable object to grant equal benefit to most of the population who can be brought within the purview of the benefit. If the length of the canals, branches, minors and distributaries has been increased and expectations have been aroused in the minds of the people of that area that they will get irrigation facilities, it is the bounded duty of the Government to provide them with those facilities. If the Government has to cut down the water allowance of other right holders with a view to afford the benefit of irrigation to hitherto unirrigated areas, the Government cannot be restrained from doing so nor can its schemes and policies be stalled by issuing a writ commanding it not to do so.

The only argument advanced by the learned counsel for the petitioners is that in order to effect a change in the distribution of supply of water from a watercourse, a scheme has to be prepared by the Divisional Canal Officer u/s 30 A of the Northern India Canal & Drainage Act, 1873 (hereinafter called the Act), and if that scheme is approved by the Divisional Canal Officer and the Superintending Canal Officer after disposing of the objections in accordance with section 30-B, the necessary change can be effected. A notice of such a scheme has to be given to the landowners who will be affected by the change in the distribution of supply of water. It is emphasised that no such scheme was prepared nor objections invited nor did the Divisional Canal Officer and the Superintending Canal Officer approve of such a scheme. In this context, it is strenuously contended that the Chief Engineer or the State Government had no power to issue the order curtailing the water allowance by 40 per cent. Reliance for this submission is placed on Natho Singh and another v. Chief Engineer Central, Punjab Irrigation, 1969 PLJ 218 wherein it was held:

Once the temporary a rangements were made with which the villagers felt satisfied, it was the duty of the Divisional Canal Officer to act under the provisions of sections 30-A to 30-F of the Northern India Canal and Drainage Act, by preparing a scheme, publishing it for inviting objections and then sanctioning it after hearing the objections. Subject to any order passed by the Superintending Canal Officer the scheme would become enforceable. Where actually the proceedings were started by the Divisional Canal Officer according to those provision it was not open to him or the Chief Engineer to drop those proceedings and withdraw the irrigation facilities which had been allowed to the villagers by way of interim measure. The Chief Engineer does not wield any authority non enjoys any power under the Act He is no doubt the administrative head of the department but he has no power to order the closure of the outlets or the transfer of the area from one distributary to another. This is the jurisdiction of the Divisional Canal Officer from whose decision a revision is provided for in sub-section (3) of section 30-B of the Act.

The facts of that case are clearly distinguishable from the facts of the present case. Sections 30-A and 30-B of the Act apply to local read justments within the jurisdiction of the Divisional Canal Officer with respect to the matters mentioned in clauses (a) to (d) of subsection (1) of section 30 A. That section does not apply to the policy decision of the State Government with regard to the water allowance to be allowed to the cultivators throughout the State in view of the available supplies of water. That power vests in the State Government under para 13(1) ibid and sections 30-A and 30-B of the Act do not apply. On similar grounds, the Division Bench judgment of this Court in Kundan Lal v. The Divisional Canal Officer I L R (1969) 2 P&H 452, is distinguishable. The policy decision taken by the State Government is for the entire State and not for any particular area thereof and is, therefore, fully justified in the interest of equitable distribution of water supplies. We, therefore, find no ground to quash that order.

For the reasons given above this petition is dismissed as without merit but the parties are left to bear their own costs.