SURAJ MAL Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) Suraj Mal and seven other right-holders of village Dhillowal, Tehsil Kaithal, District Karnal, have filed this writ petition challenging the orders passed by the Divisional Canal Officer and the Superintending Canal Officer who have split up the Chak of Outlet R.D. 52436-R of Jind Distributary and have ordered the closer of Outlet R.D. 56100-L of Moana Distributary.

(2.) The lands of the petitioners and the private respondents used to be irrigated through Outlet R.D. 56100-L of Moana Distributary. On an application made by the private respondents, this outlet has been amalgamated with Outlet R.D. 58034-L by the Divisional Canal Officer. The petitioners' lands were being properly irrigated through this outlet. However, without serving any notices on the petitioners and without hearing them and without framing a proper scheme, the Divisional Canal Officer had ordered the amalgamation of R.D. 58034-L. The petitioners filed a revision petition against this order before the Superintending Canal Officer. The same was dismissed by him on 21st December, 1967. Aggrieved by these orders, the petitioners have filed the writ-petition. This writ petition was heard and allowed by H.R. Sodhi, J., on 24th October, 1968. However, the private respondents filed a review application against this judgment on the ground that they were the affected parties and they have not been heard by this Court; that review application was allowed and the order dated 24th October, 1968 had been recalled. It is under these circumstances, that this revision petition has come to me.

(3.) The petitioners have made a categorical assertion that they were neither served nor appeared before the Divisional Canal Officer. In the order passed by the Superintending Canal Officer, it has been mentioned that the file showed that the notice had been served on the cultivators available. In the turn filed also, it is stated that notices were issued to the right-holders. It has not been categorically stated that the petitioners were served or they were heard at the time of the passing of the order by the Divisional Canal Officer. It was the duty of the Divisional Canal Officer to serve the petitioners and hear them before passing orders prejudicial to their interest. The learned counsel appearing for the private respondents has argued that it is not necessary to serve notices on individual right-holders. In view of the provisions of Rule 79-G under the Northern India Canal and Drainage Act, the mere issuance of a proclamation in the village should be deemed sufficient service. There is no merit in this contention. Rule 79-D lays down in clear terms that every summons, notice, order or requisition which is required to be served on or delivered or communicated to any person shall whenever possible, be so served on the person concerned, or his recognised agent or an adult member of the family. In the present case, the recourse has not been taken to any of these alternatives. The Divisional Canal Officer has not mentioned in his order that the persons to be served were so numerous that personal service on each of them was not practicable and so, the provisions of Rule 79-F are not attracted. Rule 79-G is applicable, but after the compliance with Rule 79-F. Since the petitioners had not been heard at the time of the passing of the order by the Divisional Canal Officer, the proceedings are clearly illegal.