In the High Court of Punjab and Haryana at Chandigarh
......
C.W.P. No.14458 of 2008
.....
Date of decision:29.10.2009
Suresh Kumar
.....Petitioner
v.
The Chief Canal Officer/L.W.S.U., Irrigation Department, Panchkula and
others
.....Respondents
....
Present: Mr. Gopal Sharma, Advocate for the petitioner.
Mr. Sudhir Makkar, Senior Deputy Advocate General, Haryana
for respondents No.1 to 3.
Mr. S.N. Pilani, Advocate for respondents No.4 to 6.
None for respondent No.7 (ex parte vide order dated
27.11.2008).
.....
S.S. Saron, J.
This petition under Articles 226/227 of the Constitution of
India has been filed seeking quashing of the order dated 29.1.2008
(Annexure-P.8) passed by the Chief Canal Officer, Panchkula (respondent
No.1) whereby the order dated 12.7.2007 (Annexure-P.7) passed by the
Superintending Canal Officer, Y.W.S. Circle, Rohtak (respondent No.2) has
been set aside.
Pardeep Kumar (respondent No.7) filed an application
(Annexure-P.1) on 19.6.2003 before the Divisional Canal Officer, Rohtak
(respondent No.3) for sanction of water course A-B as depicted in the site
plan (Annexure-P.9) on compensation basis in the `Chak’ of outlet RD
C.W.P. No.14458 of 2008
[2]
No.10650-L Madina Minor, Village Bahu Akbarpur, Tehsil and District
Rohtak from the land comprised in rectangle No.38, Khasra No.24, 25/1 and
25/2. It was claimed by Pardeep Kumar (respondent No.7) that the said
water course A-B is suitable for the irrigation of his fields and he was also
utilizing this water course for the last 50 years. The Divisional Canal
Officer, Rohtak (respondent No.3) on 10.2.2004 recorded the statement
(Annexure-P.2) of Pardeep Kumar (respondent No.7) wherein he reiterated
his prayer for sanction of water course from the aforesaid land. The land
comprised in rectangle No.38, Khasra Nos.24 and 25/1 is owned by Ram
Mehar and Ram Bhagat (respondents No.4 and 5) and land comprised in
rectangle No.38, Khasra No.25/2 is owned by Smt. Rasalo daughter of
Ramji Lal. The petitioner Suresh Kumar is a co-sharer in the land
comprised in rectangle No.38, Khasra No.25/2. The case was got
investigated from the Ziledar, who reported the matter to the Sub Divisional
Canal Officer, Rohtak. The Ziledar and the Sub Divisional Canal Officer,
Rohtak after inspection of the spot vide recommendations (Annexures-P.3
and P.4) recommended the case of Pardeep Kumar (respondent No.7) for
sanctioning the water course A-B from land comprised in rectangle No.38,
Khasra No.24, 25/1 and 25/2. The Divisional Canal Officer (respondent
No.3) after going through the spot inspection report sanctioned the water
course A-B in the `Chak’ of outlet No.RD-10650-L Madina Minor of
Village Bahu Akbarpur vide order dated 28.3.2005. Ram Mehar
(respondent No.4) and others aggrieved against the said order dated
28.3.2005 of the Divisional Canal Officer filed an appeal before the
Superintending Canal Officer who vide order dated 26.11.2006 remanded
C.W.P. No.14458 of 2008
[3]
the case for fresh decision. On remand, the Divisional Canal Officer
(respondent No.3) sanctioned the water course C-D from rectangle No.61,
Khasra Nos.4 and 5. The said land comprised in rectangle No.61, Khasra
Nos.4 and 5 is owned by the petitioner Suresh Kumar. According to the
petitioner before passing the said order dated 7.3.2007 (Annexure-P.5) the
Divisional Canal Officer (respondent No.3) did not give any opportunity of
hearing to him. Aggrieved against the order dated 7.3.2007 (Annexure-P.5),
passed by the Divisional Canal Officer (respondent No.3), Pardeep Kumar
(respondent No.7) filed an appeal before the Superintending Canal Officer,
Rohtak. Again a prayer was made for sanctioning the water course A-B
from the land comprised in rectangle No.38, Khasra Nos.24, 25/1 and 25/2
besides for setting aside the order dated 7.3.2007 (Annexure-P.5). The
Superintending Canal Officer, Rohtak (respondent No.2) accepted the
appeal vide order dated 12.7.2007 (Annexure-P.7) and the application for
sanctioning the water course A-B from the land comprised in rectangle
No.38, Khasra Nos.24, 25/1 and 25/2 was allowed. The respondents No.4
to 6 then filed an appeal against the order dated 12.7.2007 (Annexure-P.7)
of the Superintending Canal Officer, Rohtak before the Chief Canal Officer,
Panchkula (respondent No.1) who accepted the same vide order dated
29.1.2008 (Annexure-P.8). The petitioner aggrieved against the said order
has filed the present petition.
After hearing learned counsel for the parties and perusing the
record, it may be noticed that the primary grievance of the petitioner is that
before passing the order dated 29.1.2008 (Annexure-P.8), the petitioner was
not heard. A perusal of the site plans (Annexure-P.9) to the petition and
(Annexure-R.1) attached with the written statement of respondents No.4 to
C.W.P. No.14458 of 2008
[4]
6 filed through Ram Bhagat (respondent No.5) show that the land comprised
in rectangle No.61, Khasra Nos.4/2 and 5 is owned by the petitioner Suresh
Kumar. In terms of the impugned order dated 29.1.2008 (Annexure-P.8)
passed by the Chief Canal Officer, Panchkula, the water course C-D has
been sanctioned through the said land. Pardeep Kumar (respondent No.7)
had in fact prayed that the water course A-B be sanctioned from the land
comprised in rectangle No.38, Khasra Nos.24, 25/1 and 25/2. The water
course is now being carved out of the land of the petitioner and that too
without hearing him. His rights in the facts and circumstances are
materially affected.
It may be noticed that Section 17 of the Haryana Canal and Drainage
Act, 1974 (`Act’ – for short) provides for preparation of draft scheme. It is
provided that notwithstanding anything contained to the contrary in the Act
but subject to the rules prescribed, Divisional Canal Officer may, on his
own motion or on the application of share holder, 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) 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
C.W.P. No.14458 of 2008
[5]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
watercourse or an outlet.”
In terms of Section 17 of the Act in case there is to be construction,
alteration, extension and alignment of any watercourse or allotment of any
new area to a watercourse or 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 or any other matter which is necessary for the proper
maintenance and distribution or supply of water from a watercourse or an
outlet a draft scheme is to be prepared. The scheme so prepared is to be
published in terms of Section 18 of the Act which provides for publication
of scheme. It is envisaged therein that every scheme shall, as soon as, may
after its preparation, be published in such form and manner as may be
prescribed for inviting objections and suggestions in respect thereof within
twenty-one days of its publication. Sub-section (2) of Section 18 of the Act
provides that after considering such objections and suggestions, if any, the
Divisional Canal Officer shall approve, modify or reject the scheme within
thirty days of the time for the receipt of such objections and suggestions,
unless this period is extended by the Superintending Canal Officer for good
C.W.P. No.14458 of 2008
[6]
and sufficient reasons. In terms of the proviso prior approval of the Chief
Canal Officer is to be obtained for allowing,- (a) a new outlet on a main
canal or branch canal; and (b) an outlet with discharge of less than 0.75
cusec. Section 18 of the Act, therefore, applies to local re-adjustment even
within the jurisdiction of the Divisional Canal Officer with respect to
matters mentioned in clauses (a) to (f) of Section 17. Besides, Section 18
statutorily contemplates the application of the principles of natural justice.
As such, before sanctioning the water course C-D a scheme was liable to be
published. In the circumstances, there has been an infraction of the rules,
besides non-compliance of the provisions of the Act. Therefore, it would be
just and expedient that the order dated 29.1.2008 (Annexure-P.8) passed by
the Chief Canal Officer is set aside and the case is remanded back to him for
considering the objections of the petitioner as admittedly he has not been
heard before passing the said order. As such, his rights are materially
affected and it would be just and expedient that a hearing is given to him.
Accordingly, the civil writ petition is allowed and the order
dated 29.1.2008 (Annexure-P.8) passed by the Chief Canal Officer,
Panchkula (respondent No.1) is set aside and the case is remanded to him
for fresh consideration after hearing all the parties.
The petitioner and respondents No.4 to 6 shall appear before
the Chief Canal Officer on 21.12.2009.
October 29, 2009. (S.S. Saron)
Judge
*hsp*
NOTE: Whether to be referred to the Reporter or not:Yes