KOORA RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) This order of mine will dispose of Civil Writ Nos. 4614 and 4616 of 1971, as common questions of law and fact are involved in both these petitions. In order to decide the contentions which were raised before me, it would be necessary to recapitulate certain salient features which I am narrating from Civil Writ No. 4614 of 1971, and are as follows :-

(2.) Written statement has been filed by Shri A.D. Chowdhri, Chief Engineer (Canals), Irrigation Works, Haryana, on behalf of respondents 1 and 2, in which the material allegations made in the petition have been controverted.

(3.) It was contended by Mr. Anand Sarup, Senior Advocate, learned counsel, for the petitioners, that the action of the Government in withdrawing the previous notification issued under Section 4 of the Act dated 2nd September, 1971, by means of Notification dated 4th November, 1971, (copy attached with the written statement of respondents 1 and 2 as Annexure R/1) purported to have been issued under Section 48(1) of the Act and then again issuing a fresh notification under Section 4 on that very day with regard to the same land was fraud on the statute and was an abuse of the power. While developing this contention during the course of arguments, it was also submitted by the learned counsel that Section 48(1) contemplated a total and genuine withdrawal and did not envisage a situation where with regard to the same land, a fresh notification under Section 4 of the Act could be issued. On the other hand it was contended by Mr. Lamba, learned Deputy Advocate General, that the petitioners could not be allowed to raise this point as no plea in this respect had been taken in the petition. On merits it was contended by the learned Deputy Advocate General that under Section 48, there was no bar to the issuance of a fresh notification under Section 4 of the Act in respect of the same land after withdrawing an earlier notification and that this fact alone would not be sufficient to hold that the action of the Government was a fraud on the statute, and was an abuse of power.