Umed Singh vs The State of Haryana and others

A.D. Koshal, J.—This is a petition under Articles 226 and 227 of the Constitution of India challenging an order dated the 9th of February, 1970, passed by the Superintending Canal Officer, Western Jamuna Canal, West Circle, Rohtak (respondent No. 2), on the ground that it is vitiated by a material error patent on the face of the record.

The facts as emerging from the record of various proceedings prepared by respondent No. 2 and his subordinates are these. During the consolidation of holdings in village Kharar, Tehsil Jhajjar, District Rohtak, quite a few years back, a water course designated by the letters AEBCD in plan annexure ''A'', and passing through the land of the petitioner, was sanctioned. This watercourse was meant to serve the land of Hari Singh, respondent No. 3 between whom and the petitioner, however, there was an agreement for the land of the former to be served through a temporary watercourse indicated as NK in that plan (hereinafter referred to as watercourse NK). On the 9th of June, 1969, respondent No. 3 made an application to the Divisional Canal Officer concerned complaining that watercourse NK had been demolished by the petitioner and others and praying that the same be restored. After holding an enquiry into the allegations made in that application, the Divisional Canal Officer directed on the 14th of July, 1969, that notices u/s 30-FF of the Northern India Canal and Drainage Act (hereinafter called the Act) be issued to all the persons who were said to have dismantled watercourse NK. This order was complied with and watercourse NK was ultimately restored on the 24th of July, 1969, by the petitioner and others against whom the notices above mentioned were issued.

Later on the petitioner made an application to the Divisional Canal Officer that the demolition of watercourse NK be ordered as it was not a sanctioned watercourse while watercourse AEBCD above mentioned, which was a sanctioned watercourse, was available to respondent No. 3 for irrigation purposes. Respondent No. 3 contested the application on the ground that he had been irrigating his fields from watercourse NK for more than a decade and that his land was situated on a level higher than that of the petitioner''s land so that watercourse AEBCD did not suit him. After hearing the parties, the Divisional Canal Officer framed two issues on the 8th of October, 1969, and called for a report in the matter from one of his subordinates for the 15th of October, 1969, on which date the report was received and was found to state that watercourse AEBCD was much more suitable than watercourse NK which passed through a depression and had been the result of a mutual arrangement between the contending parties. Holding watercourse NK to be redundant on the basis of this report, the Divisional Canal Officer directed its demolition by an order dated the 15th of October, 1969, against which Hari Singh went up in revision to respondent No. 2, who was of the opinion that the Divisional Canal Officer had no jurisdiction to review his order dated the 14th of July, 1969, restoring watercourse NK and who set aside the order impugned before him, directing restoration of watercourse NK. It is the ordered dated the 9th of February. 1970 (annexure ''C'') passed by respondent No. 2 in revision which is challenged before me on the following two grounds :--

(i) It was on the 14th of July, 1969 (the date is erroneously mentioned as the 4th of July, 1969, or the 4th of July, 1968, in various paragraphs of the petition) that the Divisional Canal Officer had framed the two issues above mentioned and called for a report from one of his subordinates by means of an order which was not a final order and which was never reviewed, so that respondent No. 2 fell into a serious error of fact when he held the order dated the 15th of October, 1969, passed by the Divisional Canal Officer to be without jurisdiction for the reason that it reviewed a previous order passed by the latter.

(ii) Respondent No. 2 did not take into consideration the findings of fact arrived at by the Divisional Canal Officer about the levels of the lands of the contending parties and about watercourse NK being a temporary one, having been constructed under a mutual arrangement.

This petition cannot succeed as both the grounds are without substance. Ground (i) is based on a complete misapprehension of facts in so far as it treats the order of the Divisional Canal Officer framing issues and calling for a report thereon as one having been passed on the 14th of July, 1969. That order, as stated earlier, was passed on the 8th of October, 1969, and was, of course, never reviewed. If respondent No 2 had struck down the order dated the 15th October, 1969 on the ground that it reviewed the order dated the 8th of October. 1969, passed by the Divisional Canal Officer, ground, (i) would have been unexceptionable. As it is, respondent No. 2 quashed the order of the Divisional Canal Officer dated the 15th of October. 1969, for the reason that it reviewed the Divisional Canal Officer''s previous order dated the 14th of July, 1969, a reason fully borne out by facts. On the date last motioned what the Divisional Canal Officer did was to direct the issuance of notices under the section 30-FF of the Act to the petitioner and his associates directing them to restore watercourse NK. Against this action the petitioner had a right of appeal under sub-section (4) of section 30-FF of the Act but he chose not to exercise it. The said action, therefore, became final and there being no power vested in the Divisional Canal Officer under the Act to review it, the exercise of such a power by him must be held to be without jurisdiction. That he did set aside the said action by means of his order dated the 15th of October, 1969, is not open to question and respondent No. 2 was, therefore, fully justified in striking down that order.

Faced with the above situation learned counsel for the petitioner has contended that section 30-FF of the Act embraced action which was limited in its operation to watercourses sanctioned under the Act and that watercourse NK not being of that type could not be dealt with by the Divisional Canal Officer under that section so that his action taken on the 14th of July, 1969, was itself without jurisdiction and, therefore, non est so that there was no question of the same having been reviewed by the order dated the 15th of October, 1969, of the Divisional Canal officer. This contention has no force. Section 30-FF of the Act applies to water courses of all types and there is no reason to limit its scope only to "Sanctioned watercourses". It is true that sections 30-A, 30-B, 30-C, 30-D and 30-F of the Act relate to the formulation, etc., of new watercourses in pursuance of schemes prepared hereunder, but then under such schemes alteration extension or re-alignment of all types of watercourses is permissible. This is clear from the language employed in section 30-A of the Act, which runs thus :

30-A(1) Notwithstanding anything contained to the contrary in this Act and subject to the rules described 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 re-alignment of any existing watercourse;

(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 the supply of water from a watercourse.

(2) Every scheme prepared under sub-section (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 benefited and other persons who may be affected thereby, and a sketch plan of the area proposed to be covered by the scheme.

The words used in clause (a) cover a wide range and must be interpreted to mean that all sorts of watercourses sanctioned or unsanctioned, are contemplated by them. Section 30-FF must also be similarly interpreted. Its relevant part states :

30-FF (I) If a person demolishes, alters, enlarges or obstructs a watercourse or causes any damage thereto, any person affected thereby may apply to the Divisional Canal Officer for directing the restoration of the watercourse to its original condition.

If the section was intended by the legislature to be limited to watercourses sanctioned under schemes formulated in accordance with the provisions of the Act, the language of the section would certainly have been different and instead of the words "a water course" we would have found employed therein the words, "a watercourse constructed under a scheme formulated in pursuance of the provisions of the Act.

In view of what I have said above, the contention must be overruled.

Ground (ii) is not open to the petitioner. While exercising its writ jurisdiction, this Court does not site as a Court of appeal over other tribunals or officers performing administrative functions, especially in relation to questions of fact, and the matter covered by the ground cannot be made a reason for attack on the order impugned before me.

For the reasons stated, the petition fails and is dismissed but the parties are left to bear their own costs.