JUDGMENT
Ashutosh Mohunta, J.
1. Petitioner has filed the present writ petition for the quashing of order dated 2.1.2002 (Annexure P-4) passed by the Chief Canal Officer/YWSU (Irrigation Department) Haryana, Chandigarh, by which the appeal filed by the petitioner was dismissed being not maintainable.
2. It has been averred that the petitioner filed an application under Section 17(1) of the Haryana Canal & Drainage Act, 1974 for shifting of outlet No. 38850/R to RD 36800/R on Balu Minor Village, Agondh. The said application was dismissed by the Divisional Canal Officer, Karnal vide order dated 24.5.2000 (Annexure P-1). Appeal was filed against the aforesaid order before the Superintending Canal Officer, YWS Circle, Karnal which was dismissed vide order dated 18.8.2000 (Annexure P-2). Against the order dated 18.8.2000 the petitioner filed an appeal before the Chief Canal Officer (Haryana), Chandigarh which was dismissed on the ground that the same was not maintainable.
3. It has been contended by the learned counsel for the petitioner that as per the provisions of Section 20 of the Haryana Canal & Drainage Act, 1974 an appeal lies against the decision of the Superintending Canal Officer with regard to any of the matters covered under Clauses (a), (b) and (c) of sub-section (1) of Section 17 to the Chief Canal Officer.
Sections 17 and 20 are reproduced as under:
Section 17
“PREPARATION OF DRAFT SCHEME:- Notwithstanding anything contained to the contrary in this Act but subject to the rules prescribed, 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 water-course or realignment of any existing watercourse.
(b) allotment of any new areas to a watercourse or an outlet or allotment of area served by one watercourse to another or from one outlet to another or for exclusion of an area, from an outlet or a watercourse.
(c) construction of a new outlet shifting or modification of an existing outlet. Explanation:-
Any change in the design or size or both of an outlet, whose design or size or both have been changed in an unauthorised manner for restoring the same to its authorised discharge shall not be deemed to be a modification.
(d) The lining of any watercourse.
(e) the occupation of land for the deposit of soil from watercourse clearances;
(f) any other matter which is necessary for the proper maintenance and distribution or supply of water from a water course or an outlet.
(2) Every scheme prepared under Sub-section (1) shall, amongst other matters, set out the estimated cost thereof, the alignment of the proposed water-course, or re-alignment of the existing watercourse as the case may be, the site of the outlet, the particulars of the shareholder to be benefitted and a sketch plan of the area proposed to be covered by the scheme.”
Section 20:
APPEAL AND REVISION:- An appeal against the decision of the Divisional Canal Officer under sub-section (2) of Section 8 shall lie to the Superintending Canal Officer within thirty days of the publication of the scheme under Section 19.
(2) An appeal shall lie against the decision of the Superintending Canal Officer passed under Sub-section (1) in regard to any of the matters covered under Clauses (a), (b) and (c) of Sub-section (1) of Section 17 to the Chief Canal Officer within thirty days of the date of such decision.
(3) The Chief Canal Officer or the Superintending Canal Officer may suo moto call for the record of any case, pending before or disposed of by any subordinate authority for the purpose of satisfying himself as to the legality or propriety of any proceeding or of any order made therein and may pass such order in relation thereto as he may think fit.
Provided that no such order shall be made without affording the person affected an opportunity of being heard.
As the petitioner had filed an application under Section 17(1) of the Haryana Canal & Drainage Act, 1974 for shifting of outlet, therefore an appeal did lie before the Chief Canal Officer against the decision of the Superintending Canal Officer.
4. In this view of the matter, order dated 2.1.2002 (Annexure P-4) passed by the Chief Canal Officer (Haryana) is illegal and is accordingly quashed as the appeal was maintainable before him under Section 20(2) of the Act. The matter is remanded back to the Chief Canal Officer, YWSU, Haryana, Chandigarh for deciding the appeal filed by the petitioner afresh on merits. Persons concerned shall appear before the Chief Canal Officer (respondent No. l) on 13.12.2004.
5. The writ petition stands allowed.