State of Punjab vs Sadhu Singh

K.S. Narang, F.C.

This is a revision petition filed by the State of Punjab, under section 35(4) of the Northern India Canal and Drainage Act, 1873, against order dated 14.4.1981 of the Commissioner, Ferozepur Division, in a case concerning canal cut.

Brief facts of this case are that a cut at R.D. 109200/L, in village Buraj Bhulai, Sub Division on Bhaini, was detected during the night of the 22nd/23rd April, 1979. The Sub Divisional Canal Officer recommended the case for imposition of penalty on the respondents on the basis of the report of the Ziledar even though the culprits could not be identified. The Collector, Sub Division, Mansa, after hearing the representatives of the Canal Department, came to the conclusion that the respondents unauthorisedly irrigated their crop with canal water through a Ghurlu. He, therefore, imposed penalty of 25 times of the normal rate on the respondents, by his order dated 28.2.1980. Against this order the respondents filed an appeal before the Commissioner, Ferozepur Division, who relying on 1976 P.L.J. 233, accepted the appeal and quashed the order of the Collector, by his order dated 14.4.1981. Against this order the State of Punjab has now come up in revision before me.

I have heard the parties, Shri R.K. Battas, learned counsel for the State has stated that the authority 1976 P.L.J. 233 relied upon by the learned Commissioner is not applicable to the case and even otherwise the learned Commissioner did not follow it as the case cited by him was remanded to the Collector for a fresh decision. He further argued that the law does not require the Canal Officer to inspect the spot within 48 hours and he is only required to inform the Collector in writing under rule 33A(1) of the Act, which information was duly sent. He also argued that the learned Commissioner had taken into consideration the facts which were not urged in the grounds of appeal before him. Shri Ravinder Chopra, learned counsel for the respondents has, on the other hand, stated that there is no material or evidence on record to show that the respondents used the canal water in an unauthorised manner; that there is no finding about the act or neglect of the respondents; that order of the Collector is very sketchy; that the assessment and imposition of 25 times penalty was made arbitrarily and without affording the opportunity of being heard and that before passing the impugned order by the Collector, it was his duty to follow the principles of natural justice and a notice should have been given to the respondents to show cause as to why they should not be penalised for using the water in an unauthorised manner. He also contended that the provisions contained in section 33 of the Northern India Canal and Drainage Act and rule 33A of the Rules framed thereunder had not been followed, which are mandatory in nature. Shri Chopra has further contended that it was the duty of the Divisional Canal Officer to report the matter to the Collector within 48 hours of the receipt of the information regarding the use of water in an unauthorised manner but no such report was sent by the Divisional Canal Officer to the Collector and no enquiry was held by the Collector as prescribed under rule 33A(2) of the Rules ibid. He argued that on the basis of these facts the order of the Collector is liable to be set aside, which has rightly been done by the learned Commissioner.

I have gone through the record of this case. Section 33 of the Northern India Canal and Drainage Act reads as under :

"33. Liability when person using unauthorisedly cannot be identifiedIf water supplied through a Canal be used in an unauthorised manner, and if the person whose act or neglect such use has occurred cannot be identified, the person on whose land such water has flowed, if such land has derived benefit therefrom.

or if such person cannot be identified or if such land has not derived benefit therefrom, all the persons, chargeable in respect of the water supplied through such canal.

shall be liable or jointly liable, as the case may be, to the charges made for such use".

Rule 33A of the Rules framed under the Northern India Canal and Drainage Act, reads as under :

"33A. (1) The Divisional Canal Officer shall within 48 hours of the receipt of any information that the water supplied through a watercourse is being used in an unauthorised manner under section 33 or is suffered to run to waste under section 34, inform in writing giving the date, time and place of such use or waste of water and all other information relevant thereto.

(2) The Collector shall, on receipt of such information, institute a summary inquiry for determining, if possible the persons responsible for the unauthorised use or waste of water and thereafter proceed to determine under sections 33 and 34 of the Act the charges, to be levied and the persons against whom charges are to be levied. The Collector shall give to the parties concerned due notice of date time and place of hearing in the manner prescribed under Rules 79A to 79I. In case of failure of any of the parties to attend in spite of service of notice the Collector shall take exparte proceedings and give his decision after recording such evidence as may be produced or such further evidence as he may deem necessary".

I find sufficient force in the contentions of the learned counsel for the respondents that no detailed and proper enquiry was held in this case by the learned Collector or the Irrigation Authorities under the provisions of Section 33 of the Act and Rules 33A(2) of the Rules to identify the persons through whose act or neglect the use of the water from the canal had occurred and the persons on whose land such a water had flowed, resulting in the alleged benefit therefrom. The persons cannot be subjected to the penalty or the special charges either individually or jointly unless there is detailed enquiry and report thereon by the competent authority. It was necessary in this case to come to a view that it was not possible to identify persons on account of whose neglect, the unauthorised supply of water had been made and the extent of benefit derived by persons who had been held liable for the use of the water. Also, the order of the Collector is based only on the statement of the Ziledar showing that he has not exercised his independent judgment in regard to matters under his consideration. Even otherwise also the order of the Collector is very sketchy. In the present case as no detailed and proper enquiry was held as required by law, the order of the Collector cannot be sustained.

For the reasons given above, the revision petition lacks force and has no merit. I accordingly dismiss it and uphold the order dated 14.4.1981 of the learned Commissioner, Ferozepur Division.

Announced. Petition dismissed.