CHHAJU RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) Chhaju Ram petitioner is a right-holder in village Mittha Thal, tehsil Bhiwani, which was previously in district Hissar but now in district Bhiwani. Consolidation operations were taken in that village and the scheme of partition was confirmed on 5th of May, 1962 and after completion of repartition, the records were consigned. In repartition, besides other numbers, the petitioner was allowed Khasra Nos. 264, 265 and 270 of which possession was given to him. In the year 1969, the irrigation authorities unauthorisedly started digging through the aforesaid three Khasra numbers allotted to the petitioner and, therefore, he filed Civil Writ No. 2303 of 1969 in this Court to challenge the same. After notice was issued to the State, an affidavit was put in, to the effect that no digging operations had yet been undertaken by the Department and that they had no intention of digging the same till the land was acquired. After the aforesaid affidavit was put in, the counsel for the petitioner pointed out that in fact some part of the land of the petitioner had been dug up and the Department may not interfere when he may try to fill the same and that the Department should pay compensation to the petitioner for digging his land. Keeping the entire matter in view, the following operative order was passed by this Court on 22nd Sept., 1969:--

(2.) The grounds of attack pleaded by the petitioner are as follows:-

(3.) The second contention deserves to be declined first. The very basis of the order annexure 'B' is that the watercourse was running at site and the same should have been kept intact during consolidation. The learned counsel for the petitioner has strenuously urged that the aforesaid basis of the order annexure 'B' was wrongly assumed and was against facts and he has invited my attention to the file of C. W. P. 2303 of 1969 and particularly the affidavit by Divisional Canal Officer, Western Jamuna Canal. A reading of affidavit on the record of the aforesaid writ petition shows that a scheme had been prepared for the extension of the minor and the work of extension had not been started and it was categorically stated in Para 11 as follows:- 'No digging was done by the Department in the land of the petitioner. The work will be started only along the approved alignment after acquiring the land of the petitioner.' If the water-course was also in existence and water was running through it there was no question of carrying out any digging work after acquiring the land of the petitioner. The aforesaid quotation when read long with the other paragraphs of the affidavit of the Divisional Canal Officer, Western Jamuna Canal filed in the earlier writ petition, shows that there was a proposal for the extension of the minor through the land of the petitioner but the canal minor did not pass through the land of the petitioner nor water was running through it. Even before the Division Bench the stand taken by the learned Advocate General which is clear from the copy of the order ultimately passed (Annexure 'A') was that neither there was any canal in existence through the land of the petitioner nor any water was running through it. After the petitioner succeeded in earlier petition, it seems that some reports were obtained from the Consolidation Officer that the water was running through the land of the petitioner which fact is clearly contrary to the affidavit of the Divisional Canal Officer filed in the earlier writ petition as also the stand taken before this court in that case. Since no canal minor existed in the three disputed numbers when they were allotted to the petitioner, the question of re-opening the case after seven years did not arise on the ground that the canal minor already existed and water was running through it. Accordingly, I hold that the order of Assistant Director who passed order under S. 42 is clearly erroneous being against facts which were placed before this Court in the earlier writ petition. If the Canal Department wanted to extend the Canal Minor through the land of the petitioner as proposed the only course open was to acquire the land and after paying compensation to him to dig the canal minor. Hence the impugned order annexure 'B' deserves to be quashed on this ground.