Sahi Ram vs Superintendent Canal Officer and others

Jawahar Lal Gupta, J.—The appellant was aggrieved by the orders passed by the authorities under the Northern India Canal and Drainage Act, 1873 (hereinafter referred to as ''the Act''). He approached this Court through a writ petition. The learned single Judge having dismissed his petition, he has come up in the present appeal. A few factsi may be noticed.

According to the appellant, Panni Devi was a big land owner. He was a tenant on a part of the land belonging to Panni Devi. In the year 1960, he purchased land measuring 72 kanals 14 marlas. He thus became owner of the land. On September 7, 1987, Vinod Kumar son of Panni Devi made an application for the change of his turn of water. This application, it is averred, was allowed by the Deputy Collector vide order dated September 23, 1987. Another order was passed by the authority on October 19, 1987. Aggrieved by these orders, the appellant filed an appeal before the Divisional Canal Officer who by his order dated December 3, 1987 set aside the order of the Deputy Collector and remanded the case. The application was then disposed of by the Deputy Collector vide his order dated May 13, 1988. This order was challenged by the respondent, Vinod Kumar through an appeal before the Divisional Canal Officer. Vide orders dated January 16, 1990, the appellate authority remanded the case "to Deputy Collector with the direction that.Wari (turn) be fixed according to civil record and Nakkas be fixed on ''first corne first serve basis'' and the case be heard on 23-1-1990." The matter came up before the Deputy Collector on different dates viz. March 7, 1990 and March 9, 1990. Ultimately, the case was decided, on March 21, 1990. Vinod Kumar, respondent No. 2 appeared as a special attorney of his nephew Devinder Kumar (respondent No. 3). His statement was recorded on March 7, 1990 when the case was adjourned to March 9, 1990 at the request of the learned counsel for the appellant. On March 21, 1990, the appellant did not appear in spite of the service of the notice and the case was decided. The Deputy Collector vide order dated March 21, 1990 held that the land of the appellant (Sahi Ram) "comes first whereas the land of Devinder Kumar comes at the end. Keeping in view the circumstances, the Wari of respondent, Sahi. Ram (the present appellant)..... on the existing Khal, his Nakkafor taking water at 105/7-13 and for delivering water at 105/3-7 is approved. From here Shri Devinder Kumar son of Mool Dass after taking water will deliver water at the..... In order to make up the above deficiency of Nikal cut, his Wari be kept in Nikat at serial No. 5. In order to compensate Sahi Ram 0.5 minutes Wari of Devinder Kumar be included in the Wari of Sahi Ram which is accordingly approved." Aggrieved by this order, the appellant filed an appeal before the Divisional Canal Officer. He upheld the order dated March 21, 1990 passed by the Deputy Collector. The appellant then challenged this order before the Superintendent Canal Officer. His petition having been dismissed vide order dated January 29, 1991, he approached this Court through a civil writ petition which has been dismissed by the learned single Judge.

Mr. Ravinder Chopra, learned counsel for the appellant has contended that Devinder Kumar had not moved any application under S. 68 of the Act and, consequently, no order giving him any benefit could have been passed by the authorities. He has further contended that according to the finding recorded by the Deputy Collector vide his order dated May 13, 1988, the appellant was given his turn of water which he had been availing of since the year 1960 and there was no reason for the authorities to interfere with this order. The claim made on behalf of the appellant has been contested by the learned counsel appear- ing for the respondents. According to the learned counsel for the respondents, the action taken by the authorities was in strict conformity with law and calls for no interference.

It is apt to notice the provisions of S. 68 of the Act. It provides as under :--

68 Power of Deputy Collector to order use of distribution of water and settlement of differences as to mutual rights and liabilities of persons interested in water-course -

(1) The Deputy Collector may, if in his opinion, it is necessary so to do, pass an order as to the distribution of water from a watercourse amongst persons in any estate or a group of estates or in any holding or a group of holdings in such estate or estates; Provided that no such order shall be passed by the Deputy Collector without making any enquiry in the matter and without giving a notice to all the persons that, on a day to be named in such notice, he shall proceed to inquire 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 sub- section (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 inquire into the said matter, and after the inquiry he shall pass an order thereon.

(4) An order passed under sub-section (1) or sub-section (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 a water-course shall, subject to an order passed in appeal or revision under sub-sections (5) and (6) be final.

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

(6) The Superintendent Canal Officer, within whose jurisdiction the water-course is situated, may, sou 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 sub-section (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 any Civil Court."

A perusal of the above provision-shows that the Deputy Collector can pass an order "as to the distribution of water from a watercourse amongst persons in any- estate or a group of estates." If a difference arises between two or more persons in regard to their mutual rights or liabilities, such a person can apply to the Deputy Collector stating the matter in dispute. Thereafter, notice has to be given to the interested persons and the case has to be decided after holding an enquiry into the matter. Against the decision of the Deputy Collector, the remedy of appeal and revision is also provided for.

We are of the view that the Deputy Collector is competent to suo motu consider and decide a matter. The filing of an application is not a condition precedent for exercise of power under the provisions of Section 68. Consequently, the contention raised by the earned counsel for the appellant that Devinder Kumar having not moved any application u/s 68, the orders passed by the authorities are invalid, cannot be accepted.

There is another aspect of the matter. A perusal of the order dated January 16, 1990 passed by the Divisional Canal Officer shows that the case had been remanded to the Deputy Collector with the direction that Wari (turn) be fixed according to civil record and nakkas be fixed on ''first come first serve basis'' .....". It was thus necessary for the Deputy Collector to hear all persons who were getting their turn of water from the water-course in question. Admitedly, Devinder Kumar''s land was at the end of the water-course and he was a person who was likeiy to be affected. The authorities under the Act were thus entitled to hear his attorney ile deciding the matter. They thus com-lmitted no illegality in considering his claim.

Equally lacking in merit is the second contention raised by learned counsel for the appellant that the appellant had been enjoying his turn of water since the year 1960 and as such, no alteration was called for. These are matters for consideration by the appropriate authorities under the Act. A writ Court can interfere only if there is a violation of the provisions of the Statute. Otherwise, the authorities under the Act are competent to decide the matter. In fact, they are the experts at the spot and the Courts are not competent to interfere unles a palpable violation of any provision of law is shown. No provision of the Act is shown to have been violated. Consequently, no ground for interference with the order passed by the learned single Judge is made out.

Accordingly, we find no merit in this appeal which is dismissed. In the circumstances of the case, there will be no order as to costs.

Appeal dismissed.