Tek Chand vs State of Haryana and others

Tek Chand, J.—The petitioner, Tek Chand son of Hardial of village Kaluwas, Tehsil Bhiwani, District Hissar, has sought issuance of an appropriate writ, order or direction quashing the order No. 4262/29/3 G(Rohtak), dated 18th, March, 1967, of the Superintending Canal Officer, Western Yamuna Canal, West Circle, Rohtak (Annexure A).

The respondents in this case are the State of Haryana, the Superintending Canal Officer and Gulzari, a right holder of neighbouring village Nathuwas The petitioner formerly used to receive water for irrigation of his land from an outlet No. 174580/R. During the course of proceedings for consolidation of holdings, the petitioner and other-light-holders approached the Canal Department requesting that their lands are not getting proper supply of water in adequate quantity from that outlet and, therefore, their area should be transferred to outlet No. 180188/R. Both these outlets are in Bhiwani Distributory and at a short distance from each other. The petitioner and other right holders who wanted water from outlet No. 180188/R were owners of an area measuring 50 standard acres. The Sub Divisional Canal Officer framed a scheme for purposes of the transfer sought; and according to him it was made u/s 30A of the Northern India Canal and Drainage Act (No. VIII of 1873) but according to the contesting respondents, this matter was dealt with u/s 20. The scheme was duly published and ultimately approved in August, 1963. It was mentioned that in view of the amendment of the Act on 11th April, 1963 by Punjab Act No. XXI of 1963, power to prepare the scheme was given to the Sub Divisional Canal Officer in place of Divisional Canal Officer. Reference was made to section 30-A to 30-F. u/s 30-B, the Sub Divisional Canal Officer submitted the scheme to the Divisional Canal Officer for confirmation which was done on 23rd of December, 1963 This scheme was further submitted by the Divisional Canal Officer to the Superintending Canal Officer, respondent No. 2, who also confirmed it on 31st of January, 1964.

Gulzari, respondent No. 3, being dissatisfied with the scheme as to transfer of 50 standard acres from outlet No. 174580/R to 181088/R, filed objections before the Divisional Canal Officer which were rejected. He then made a representation in the form of an appeal to respondent No. 2 on 17th of January, 1964. The appeal was allowed on 18th of March, 1967 and the transfer of area measuring 50 standard acres to outlet R.D. 180188/R was not approved. It may be mentioned that it took more than three years for respondent No. 2 to dispose of the appeal. The petitioner feels aggrieved from this order which he impugns. There is also another off shoot which may be noticed. The petitioner had made an application to the Sub Divisional Canal Officer for the supply of water from outlet No. 180188/R through the fields of respondent No. 3 and this was approved on 9th of September, 1965, by him. The respondent No. 3 felt dissatisfied and field an appeal to the Divisional Canal Officer which the latter decided on 22nd of March, 1966, modifying the order of the Sub Divisional Canal Officer and demarcating a different link water course for carrying water. The channel carrying water to the petitioner''s filed would net pass through the land of respondent No. 3. The copy of the order of Divisional Canal Officer is Annexure B. Respondent No. 3 did not feel satisfied with the modification and filed a further appeal before respondent No. 2 on 12th of April, 1966 on the plea that previous appeal dated 17th of January, 1964, against the transfer of an area had not been decided and the Divisional Canal Officer''s decision to grant a link water course to the petitioner was illegal. Respondent No. 2 asked the Divisional Canal Officer to decide the matter tut the latter wrote back to say that it would be better if the appeal of respondent No. 3 of 17th of January, 1964, along with the other appeal pending before respondent No. 2 be disposed of by him together. Copy of this communication to respondent No. 2 from the Divisional Canal Officer is Annexure C. It has already been mentioned that respondent No. 2 allowed Gulzari''s appeal on 18th of March, 1967 declining to set aside the transfer of an area of 50 standard acres from the former outlet No. 174580/R to 180188/R. The petitioner feels aggrieved from this decision and maintains that it is liable to be quashed for several reasons.

The principal reason advanced is that the impugned order was made not u/s 20 but under sections 30-A and 30-B of the Act. These three sections are produced below:

Supply of water through intervening watercourse:-Whenever application is made to a Divisional Canal Officer for a supply of water from a canal, and it appears to him expedient that such supply should be given, and that it should be conveyed through some existing watercourse, he shall give notice to the persons responsible for the maintenance of such watercourse to show cause, on a day not less than fourteen days from the date of such notice why the said supply should not be so conveyed; and after making enquiry on such day, the Divisional Canal Officer shall determine whether and on what condition the said supply shall be convened through such watercourse.

When such officer determines that a supply of canal water may be convened through any watercourse as aforesaid, his decision shall when confirmed or modified by the Superintending Canal Officer be binding on the applicant and also on the persons responsible for the maintenance of the said watercourse.

Such applicant shall not be entitled to use such watercourse until he has paid the expense of any alteration of such watercourse necessary in order to his being supplied through it, and also such share of the first cost of such watercourse as the Divisional or Superintending Canal Officer may determine.

Such applicant shall also be liable for his share of the maintenance of such watercourse so long as he uses it.

30A(1) Notwithstanding anything contained to the contrary in this Act and subject to the rules prescribed by the State Government in this behalf, the Divisional Canal Officer may, on his own motion or on the application of a shareholder, prepare a draft scheme to provide for all or any of the matters, namely :

(a) The construction, alteration, extension and alignment of any watercourse or realignment of any existing water use.

(b) reallotment of areas served by one watercourse to another;

(c) the lining of any watercourse;

(cc) the occupation of land for the deposit of soil from watercourse clearances;

(d) any other matter which is necessary for the proper maintenance and distribution of supply of water from a watercourse.

(2) Every scheme prepared under subsection (1) shall, amongst other matters, set out the estimated cost thereof, the alignment of the proposed watercourse or realignment of the existing watercourse, as the case may be, the site of the outlet, the particulars of the shareholders to be benefitted and other persons who may be affected thereby, and a sketch plan of the area proposed to be covered by the scheme.

30-B. (1) Every scheme shall, as soon as may be after its preparation, be published in such form, and manner as may be prescribed by rules made in this behalf for inviting objections and suggestions with respect thereof within twenty-one days of the publication.

(2) After considering such objections and suggestion, if any, the Divisional Canal Officer shall approve the scheme either as it was originally prepared or in such modified form as he may consider fit.

(3) The Superintentending Canal Officer may suo motu at any time or on an application by any person aggrieved by the approved scheme made within a period of thirty days from the date of publication of the particulars of the scheme u/s 30-C, revise the scheme approved by the Divisional Canal Officer :

Provided that such revision shall not be made without affording to the person affected an opportunity of being heard. "The term" watercourse "is defined u/s 3 to mean" any channel which is supplied with water from a canal, but which is not maintained at the cost of the State Government, and all subsidiary works belonging to any such channel.

It is contended on behalf of the petitioner that section 20 contemplates an application from a person who has not hither to been receiving water from a canal and does not obey to the case of a person who wants "re-allotment of areas served by one watercourse to another" as provided in section 30-A. Section 20 requires that the applicant shall not be entitled to use the watercourse until he had paid the expense of any alteration of any such watercourse necessary in order to his being supplied water through it and also such share of the first cost of such watercourse. What is of significance is that the existing watercourse has already been maintained at the expense of other right-holders and the new applicant u/s 20 has to contribute to a share of the first cost. In the case of right-holder making an application u/s 30-A, he has already made his contribution to one watercourse. I find that the petitioner''s contention has some force.

Rule 2 made u/s 20 of the Act by I.B. Notification No. 3041-R-204/45, dated 18th January, 1946, provides that in a case falling u/s 20. The, Divisional Canal Officer shall announce his decision to the parties interested, and within 30 days from the date of such announcement any person aggrieved by such decision may file an objection thereto in written before the Superintending Canal Officer. Thus, a power is given to the Superintending Canal Officer to entertain an objection and to confirm or modify the decision of the Divisional Canal Officer. According to respondent No. 3, the impugned decision was made under this Rule. But it section 20 is not applicable, then this Rule is of no avail.

On the other hand, section 30-A makes it clear that the Divisional Canal Officer may on his own motion or on the application of a shareholder prepare a draft scheme to provide for all or any of the five matters specified therein. To my mind, this is a case which comes under (b) re-allotment of areas served by one water course to another. u/s 30-B, sub-section (2), the Divisional Canal Officer is required to approve the scheme either as it originally was or in a modified form. This was done on 23rd of December, 1963. Under sub-section 3, the Superintending Canal Officer has the power within a period of 30 days from the date of publication of the particulars of the scheme to revise the scheme approved by the Divisional Canal Officer. This was accordingly done on 31st January, 1964. This fact is also admitted in para 5 of the written statement. This order of 31st of January, 1964, could not be subsequently reviewed as the Superintending Canal Officer has no such power of review My attention has been drawn to a decision of Full Bench in Deep Chund and others v. Additional Director Consolidation, of Holdings and another (1964) C.L.J. 128 that the inherent powers reserved in section 151 of the CPC cannot be resorted to for permitting a Judicial or quasi-judicial tribunal to vary or alter any order passed by it on the ground that it was later considered to be erroneous on the merits. Moreover, the decision of the Superintending Canal Officer made more than three years later on 18th March, 1967 though it had the effect of upsetting his earlier decision of 31st January, 1964, could not be deemed to be in the exercise of any power under the Act. His earlier decision of 31st of January, 19b4, had become conclusive. Once the decision made on the basis of sections 30-A and 30-B has been confirmed by the Superintending Canal Officer and the scheme as approved by the Divisional Canal Officer has been accepted, it cannot subsequently be disturbed either by the Superintending Canal Officer himself or by any other authority. It is not necessary to refer to any other point sought to be made by the petitioner.

I find that to the facts of the case, the provisions of section 30-A(1)(b) are attracted and not of section 20. The impugned order (Annexure A) passed by the Superintending Canal Officer on 18th March, 1967 was without jurisdiction and void. The petition is, therefore, allowed. The petitioner is entitled, in the circumstance, to the issuance of writ of certiorari quashing the impugned order. I order accordingly. In the circumstances, I will leave the parties to bear their own costs.