(1.) BRIEFLY , the facts are that respondents Nos. 3 and 4, who are tenants of Jagat Singh, respondent No. 5, made an application before the Divisional Canal Officer, respondent No. 1, for providing them with a watercourse to irrigate their lands. A scheme was prepared under section 30 -A of the Northern India Canal and Drainage Act, 1873, hereinafter called the Act, wherein the proposed water course was shown as ABCD. The petitioner had no objection to the said watercourse. The Divisional Canal Officer, however, sanctioned another watercourse LMB by amending the original watercourse ABCD, vide his order dated 26th August, 1980, copy Annexure P.2 The petitioner went up in appeal against that order to the Superintending Canal Officer, respondent No. 2, who affirmed the same on 25th February, 1981, copy Annexure P.3. He has challenged the aforesaid orders inter alia on the ground that the Divisional Canal Officer could not change the alignment of the watercourse absolutely under section 30 -B of the Act but could make modifications in the given scheme.
(2.) IT is contended by Mr. Khunger, learned counsel for the petitioner, that the Divisional Canal Officer could not modify the watercourse, ABCD prescribed in the scheme so as to change its character altogether. According to him, Divisional Canal Officer could make slight chances in the scheme. He has further urged that the petitioner raised specific objection regarding watercourse LMB but the Divisional Canal Officer, after having obtained the consent of the owner of the land regarding the new watercourse, observed in the judgment that it had been provided with the consent of the parties. According to him no such consent was obtained from the petitioner.
(3.) I have heard the learned counsel for the parties at a considerable length. I, however, agree with the contention of the learned counsel for the petitioner A new scheme is prepared under section 30 -A and given publicity under section 30 -B(1) of the Act Thereafter objections Against it are heard under section 30 -B(2), which authorises the Divisional Canal Officer to accept, reject or modify the scheme after considering them. The aforesaid sub -section, reads as follows: -