IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 14297 of 2009
Date of decision : 18.9.09
Kaka Singh and Others
..... Petitioners
Versus
Superintending Canal Officer and Others
..... Respondents
Present: Mr. R.S. Chauhan, Advocate for the petitioners.
****
S.S. SARON, J.
Heard counsel for the petitioners.
The grievance of the petitioners is that the Divisional Canal
Officer, Mansa Division, I.B. Jawaharke (respondent No.2) while passing the
impugned order dated 18.9.2007 (Annexure P4) did not hear the petitioners.
Besides, the Superintending Canal Officer, I.B. Circle, Patiala (respondent
No.1) in terms of order dated 9.7.2009 (Annexure P6) has merely confirmed
the said order without adverting to the facts. In any case, it is submitted that
the water course as has now been carved out is not a ‘pucca’ water course.
I have given my thoughtful consideration to the matter and with
the assistance of the learned counsel for the petitioner, perused the record as
also the site plan (Annexure P3). It may be noticed that Kewal Singh
(respondent No.3) sought change of the water course. On receipt of the case,
a Scheme under Section 30-A(i) and 30-B(i) of the Northern India Canal and
Drainage Act, 1873 (“Act” – for short) was prepared and published.
CWP No. 14297 of 2009 [2]
Kewal Singh (respondent No.3) on 26.3.2007 had filed an
application before the Sub-Divisional Canal Officer, Canal Sub Division,
Talwandi Sabo for approval regarding the transfer of the water course at
points BCD as shown in the site plan (Annexure P3) to points BEF in
Rectangle No.128 M, Field Nos.16, 17, 18, 19/1-2 on the Northern boundary
and 128M/16 on the Eastern side. The Sub-Divisional Canal Officer in his
report dated 20.7.2007 (Annexure P2) recommended for the transfer of the
water course. According to the said report the water course BCD was running
through the passage of Southern boundary in Rectangle No.128, Field Nos.12,
13 and it bifurcated Rectangle No.128, Field Nos.16, 17 in two parts. The
applicant Kewal Singh (respondent No.3) and the share holders of the
adjoining water course consented for the transfer of water course after taking
it out from the passage and set up the same on one side. The position,
therefore, is that according to the applicant Kewal Singh (respondent No.3),
water course BCD was going through their land and it bifurcated his land.
Therefore, it was prayed that the existing water channel which was at points
BCD in the site plan (Annexure P3) be transferred and sanctioned at points
BEF. The Divisional Canal Officer, Mansa Division, I.B. Jawaharke, Mansa
(respondent No.2) vide order dated 18.9.2007 (Annexure P4) held that the
demand of the applicant Kewal Singh (respondent No.3) was valid and
acceptable because the water course which was approaching their ‘tuk’ had
come in the way after demarcation and they felt difficulty in passing through
that way and on transfer of this water channel, no objection from any side had
been submitted. The said order has been upheld by the Superintending Canal
Officer Patiala Circle, IB, Patiala (respondent No.1) vide order dated 9.7.2009
(Annexure P6).
CWP No. 14297 of 2009 [3]
The grievance of the petitioners that they were not heard while
passing the order in the facts and circumstances of the present case is not of
much significance. A person though has a right to be heard before an order
adversely affecting his rights is passed, however, it would not be correct to
say that for any and every violation of the right of hearing, which is a facet of
the principles of natural justice the order that is passed is altogether void and
ought to be set aside without further inquiry. The approach and test in such
cases has always been whether the order has resulted in any prejudice to the
person against whom it is passed. A perusal of the site plan (Annexure P3)
which is a Photostat copy of a certified copy would show that the water
course from points BCD would go through the land of Kewal Singh
(respondent No.3). By having it at points BEF the water course would be on
the Northern boundary of the land of Gurcharan Singh and Darshan Singh
sons of Jagir Singh, besides on the Northern boundary of Gian Singh. This
water course is through the land comprised in Rectangle No.128, Field
Nos.16, 17, 18, 19/1 and 19/2. By making it from points BEF it comes on the
Northern boundary of the said field numbers. The rights of the petitioners
whose land is in Rectangle No.127 are, in no manner, affected and the water
course insofar as the land of Nachhattar Singh and Malkeet Singh sons of
Nazar Singh is concerned which is in Rectangle No.127, Field Nos.10, 11 and
07 is on the western boundary. Therefore, it is not shown as to how the rights
of the petitioners are, in any manner, affected. Besides, by re-aligning the
water course, no prejudice is shown to have been caused to either of the
parties. The contentions of the petitioners that now aligned water course is
not a ‘pucca’ water course, it would be appropriate to mention that in case the
petitioners approach the canal authorities for the construction of ‘pucca’ water
course, the same shall be considered.
CWP No. 14297 of 2009 [4]
Consequently, there is no merit in this petition and the same is
accordingly dismissed. However, in case the petitioners approach the canal
authorities for making the water course as ‘pucca’ one, the same shall duly be
considered.
(S.S. SARON)
JUDGE
September 18, 2009
amit