Zora Singh and another vs Superintending Canal officer and others

M.M. Punchhi, J.(Oral)

The petitioner was accused of having demolished a watercourse ''AB'' alongside which was situated the fields of the petitioner. By such course, he seemingly deprived irrigation facilities to the fields of respondents Nos. 3 to 7. The said respondents complained of the action of the petitioner before the Divisional Canal Officer, respondent No.2. He gave notice to the petitioner requiring him to restore the demolished watercourse on his expense within four days. The notice is dated 7th June, 1973. Aggrieved against the said notice, Annexure ''B'', the petitioner filed an appeal which was dismissed by the Superintending Canal Officer on 28th August, 1973 vide order, Annexure ''C''. This gave rise to the present petition under Articles 226 and 227 of the Constitution of India preferred by the petitioner.

It has been averred in the petition that the Divisional Canal officer did not associate the petitioner in any inquiry conducted by him and it was not known on what basis had he come to the conclusion that the alleged watercourse ''AB'' was demolished by the petitioner. It was also averred that the stated watercourse was neither sanctioned under the provisions of the Northern India Canal and Drainage Act, 1873 (hereinafter called the Act) nor was it running by consent of parties. On that premises, the power of the Divisional Canal Officer was questioned and his effort to restore the suggested watercourse. At the same time, it was also contended that any precedent inquiry conducted by the Divisional Canal Officer before the issuance of notice, Annexure ''B'', was violative of the principles of section 30FF of the Act and had been so held in two decisions of this Court in Bakhtawar Singh and others v. Superintending Canal Officer, Sirhind Canal Circle, 1973 P.L.J. 622, and Kheta Ram v. The State of Haryana, 1974 P.L.J. 294. In the said authorities, it has been said in so many words that the Divisional Canal Officer under section 30FF(2) of the Act is required to make an inquiry himself and not through any other agency. And if he inquires into the matter through any other officer, the notice issued on the basis of that inquiry would be illegal and void. Such power of the Divisional Canal Officer cannot be delegated to any subordinate officer is by now wellsettled as asserted by the petitioner.

In justification of the impugned notice and appellate order, the Divisional Canal Officer has filed a return elaborating facts which gave rise to the controversy. However, nowhere in his return has it been asserted that the watercourse said to have been demolished was either a sanctioned one or an authorised one or its running had been prescribed. All what is asserted is that the questioned watercourse was a running watercourse through which the respondents were irrigating their fields, and thus the order for its restoration by the Divisional Canal Officer was perfectly in order under section 30FF of the Act. On the question of jurisdiction, it has been countered that no opportunity is envisaged under section 30FF of the Act to be given to a party affected for restoration of the watercourse if he was responsible for dismantling it, as also that it was within the discretion of the Divisional Canal Officer to conduct the inquiry himself or through other officer and in any form he thought it fit. Respondents Nos. 3 to 7 have, on the other hand, asserted that the questioned watercourse was a sanctioned watercourse and had rightly been allowed to be restored. In both the returns, it is however asserted that the petitioner was associated in the inquiry held by the Sub Divisional Officer (Canals) who reported the matter to the Divisional Canal Officer for taking appropriate action.

It is plain from the language of subsection (2) of section 30FF that on receipt of an application under subsection (1), the Divisional Canal Officer may, after making such enquiry as he may deem fit, require, by a notice is writing, served on the person found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore at his own cost, the watercourse to its original condition within such period as may be specified in the notice. The enquiry conceived of is an enquiry to be conducted by the Divisional Canal Officer himself. Concededly, he did not conduct any such enquiry but resorted to the convenient method of getting it done from the SubDivisional Officer and relying on his report issued the impugned notice, Annexure ''B''. This hardly meets the requirement of sub section (2) of section 30FF and is rather in conflict with the law as interpreted by this Court in Bakhtawar Singh''s case and Kheta Ram''s case (supra). Thus the impugned action, notice and orders are void ab initio and have to be quashed on the strength of the aforesaid two precedents.

Accordingly, this petition is allowed. The impugned notice, Annexure ''B'' and order of the Superintending Canal Officer, Annexure ''C'', are hereby quashed. It is, however, made clear that the Divisional Canal Officer, if he so chooses, on the original application or approached afresh, would be at liberty to conduct an enquiry in accordance with the provisions of section 30FF of the Act and undertake the enquiry himself and pass appropriate orders in accordance with law. In the event, the petitioners would be at liberty to put all the defences open to them inclusive of the nature of the watercourses and the rights flowing therefrom to the respective parties. Ordered accordingly. No costs.