DHAPAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) This writ petition discloses a typical instance of misuse of authority.

(2.) Smt. Dhapli alias Dhapan widow of Ram Dayal and daughter of Ram Rikh, and other petitioners are rightholders in village Surana, Tehsil Narnaul, District Mohindergarh. They own land measuring 30 Kanals 8 Marlas in Rectangle Nos. 25 and 34, bearing Khasra Nos. 19, 22, 2 and 3. Respondents 5 and 6, Charnji and Jai Dayal, sons of Prabhu Dayal are also owners of land in the same village. These respondents own 44 Kanals of land in Rectangle Nos. 34, bearing Khasra Nos. 7, 8, 9, 10, 11/1, 12/1, 13/1 and 27, as it appears from Annexure 'B' filed by the petitioners and Annexures R-4 and R-5 filed with the return of the respondents. Annexure R-5 is the plan indicating the respective locations of the lands of the two parties, Annexure R-4 is the final notification issued under Section 11 of the Punjab Land Improvement Schemes Act, 1963 (Punjab Act No. 23 of 1963), hereinafter called the Act. The land of the respondents covers two areas one on the north and the other on the south of the land of the petitioners. It is a common ground that there are two tube-wells one each at the two said places. A copy of the order of a Civil Court filed as Annexure 'A' shows that Bala Ram son of Ram Rakha, brother of Smt. Dhapan one of the petitioners, instituted a suit against respondents 5 and 6 for a perpetual injunction restraining the latter not only from digging any water channels through his land but also from digging trenches and pits in that land for irrigation purposes. The respondents who were defendants in that suit did not dispute the title of the plaintiff over the land through which water channels were sought to be dug but based their claim on some consolidation scheme in the village which, according to them, permitted water to be taken through the nearest 'Banna' line. No consolidation scheme has been produced in the present proceedings before me. The Civil Court found that the respondents had no prima facie right of the nature claimed by them. The consolidation scheme, a copy whereof was produced in the Civil Court, had not till then been confirmed and was only at its preliminary stage. Temporary injunction was, therefore, granted against the respondents on 29th December, 1969. In the absence of evidence establishing a legal right in the respondents to dig a water channel through the fields of the petitioners, the finding of the Civil Court seems to be un-exceptionable. The determination of the respondents obviously was to have their block of land on the soughen side irrigated from the tube-well on the northen side by digging channels and laying underground pipes for that purpose through the disputed land not owned by them but by the petitioners. A plea was taken by respondents 5 and 6 that the pipes were actually being laid by the Soil Conservation Department for the benefit of land-owners generally, though the defendants would also be benefited therefrom. The Senior Subordinate Judge while issuing temporary injunction made it clear that it was not intended to prohibit the said department from going ahead with their scheme if any since that department was not a party to the suit. It appears that during the pendency of the suit, the District Land Improvement Committee, Narnaul (hereinafter called the Committee), constituted under Section 4 of the Act, had taken a decision on 9th December, 1969, to have a draft scheme prepared under Section 7. This scheme is described in the proceedings of the meeting of the Committee on 9th December, 1969, as "Water Use Scheme in the Land of Shri Charanji son of Prabhu Dayal, village Surana, Tehsil Narnaul." Agricultural Inspector, Narnaul, was appointed as an inquiry officer for hearing objections to the draft scheme as envisaged in Section 7(3) of the Act. The proceedings are supposed to have been recorded in a register, produced before me by the State counsel and it purports to have been signed by respondent 2, who has filed an affidavit in reply.

(3.) It is necessary at this stage to state the objects of the Act. Extensive erosion of rich and fertile soil was going on by heavy rains, floods, winds and indiscriminate grazing by cattles, both in the plains and hills of the erstwhile United Punjab and it was, therefore, thought useful to enact a legislation in order to provide for the making and execution of land improvement schemes. The object of such schemes is to protect the land against damage from the sources referred to above and to provide for farm drainage and other works incidental to and connected with the aforesaid purposes. The owners of lands in the catchment areas are to be persuaded and indeed compelled to benefit from the schemes by implementing the same. The State Government has in this regard to first issue a notification declaring any area, whether comprising the whole or part of a district, as a notified area in which execution of the land improvement schemes seems to be necessary. Such a notification comprising the districts of Hoshiarpur, Kangra, Gurdaspur, Ambala, Patiala, Karnail, Gurgaon and Mohindergarh, was issued as early as 31st May, 1963, in the United Punjab and much before the re-organisation of the State of Punjab on 1st November, 1966. Section 4 of the Act contemplates the setting up of the District Land Improvement Committee consisting of the Deputy Commissioner and some other officers including Chairman of the Panchayat Samitis of the blocks falling within the notified area. It is the function of such committees to direct the preparation of draft improvement schemes which, amongst other matters, may, as stated in Section 5, provide for the prevention of erosion of soil, preservation and improvement of soil, reclamation of waste land, improvement of water supply and farm drainage, and other works incidental to or connected with any of the purposes for which the scheme is sought to be prepared. The draft scheme is required to be prepared by the Soil Conservation Officer or any other person authorised in this behalf by the Committee. It is then submitted to the Committee which may approve the draft with or without modifications or reject it and prepare or cause to be prepared altogether a new draft scheme. Section 7(2) requires that the draft scheme shall be published in the official gazette and also in the prescribed manner in every village and at the headquarters of the tehsil and the district in which the lands included in the scheme are situated. A copy of the draft scheme has to be affixed in the offices of the Panchayats, Panchayat Samitis and Zila Parishads concerned. An inquiry officer is to be appointed by the Committee who shall hear the objections. The objections are to be preferred within 30 days of such publication and the inquiry officer, after considering the objections has to submit his report to the Committee, which may sanction the scheme with or without modifications or reject it. Proviso to Section 10 creates a bar to the sanction of the scheme in certain circumstances. The scheme, when sanctioned under Section 10, is to be published in its final shape. After the scheme comes into force, the Soil Conservation Officer has to execute it. He has to prepare a statement under Section 16 on the completion of the works under the scheme giving particulars of the works carried out, indicating the rate of the recovery of costs per acre. The period within which the amount has to be recovered from the land-owners is also to be stated. There is a form prescribed by the rules in which the statement is to be recorded and whatever rights and liabilities arise under the scheme are entered in the record of rights. A proper understanding of the objects of the Act will go to show that the intention of the Legislature is to benefit the land-owners generally in order to protect their lands and help them in the improvement of the soil and method of cultivation so that the same is not wasted. Section 5 lays down the purposes for which the land improvement scheme can be prepared. It is for the Committee in each case to decide whether a scheme is needed for all or any of the matters referred to in this section. The nature of the land, its area, the existing water supply system and other such matters will help in determining as to what type of a scheme is required in a particular case. The purpose of the scheme and the proposed action for improving the soil or cultivation have to be stated in the scheme so that the land-owners affected by the same could know what objections they have to such a scheme. It is not the intention of law that the Committee or the officer entrusted with the preparation of the draft scheme is to mechanically reproduce the provisions of Section 5, leaving it open to the whim and caprice of the officer entrusted with the execution thereof to adopt any methods that he thinks proper. In the absence of clear details and indications in the draft scheme, no objections can reasonably be expected to be preferred since no one knows how he is going to be affected. The publication has also to be strictly in accordance with the terms of the statute and the rules made thereunder so that wide publicity is given to the draft scheme and land-owners are afforded a proper opportunity to file their objections in time. The costs of execution of works under the scheme or any expenses incurred on the works and maintenance or repairs are to be borne by landowners made liable in the statement prepared by the Soil Conservation Officer under Section 17 and this statement is to form a part of the record of rights thereby leading to a recurring liability not only for the existing land-owners but also their successors-in-interest. It is, therefore, all the more imperative that procedure is followed and proper publicity given to the scheme.