NATHU RAM Vs. BAGA RAM ALIAS BHAG CHAND

JUDGEMENT

(1.) The second appeal is at the instance of the 3rd defendant, who has suffered a decree in the two courts below. The suit had been filed by the 1st respondent contending that the order passed by the Superintending Canal Officer (for short, SCO) on 26.11.1975 was illegal and against the relevant rules and for an injunction restraining the defendants from digging khal through the lands of the plaintiff. The Court found that the mandatory rules in the manner of preparation of draft scheme with rough sketch and in the manner of publication, there had been serious breach of compliance of statutory provision and consequently, all the proceedings and the final orders made by the authorities were invalid. It is this decision which has come in challenge before this Court on a pointed question of the jurisdiction of the civil court to adjudge on the validity of the order as whether the civil suit was barred by Section 30-G of the Northern India Canal and Drainage Act, 1873 (for short, 'the Act').

(2.) Consequent to an application given by the appellant- defendant to the Divisional Canal Officer (for short, DCO) on 26.12.1974 for sanctioning a watercourse on the southern line of Rectangle/Killa No.8/21-8/10-11-20 on a plea that he would bear the entire cost, the Sub Divisional Officer, Fatehabad sanctioned the watercourse. A draft scheme was prepared under Section 30-A and it was published under Section 30-B of the Act. The draft scheme was filed as D2 and the publication was filed as D9. The draft sketch and plan were filed as D3 and a notice served on the plaintiff as a landowner of the property through which the canal was to be laid was served and the signed notice was produced as D4. The DCO had recorded statements of both parties on 10.04.1975, copy of which statement is available on the file and passed an order on 10.04.1975 (Ex.P1) sanctioning the watercourse through the field numbers agreed to by the plaintiff. The appellant-defendant had filed a revision against this order on 10.04.1975 under Section 30-B (3) of the Act before the SCO. The document revealed that SCO inspected the site on 26.11.1975 and allowed the revision on 26.11.1975 slightly modifying the alignment of the course from ABDEF to AFCBA on compensation basis. This order of the SCO remained final in the quasi judicial hierarchy. The scheme was ordered under D2 under Section 39-C of the Act. The DCO acquired the land required for the watercourse AECBA vide order dated 21.12.1975 under Section 30-D of the Act. As per the undertaking, it was claimed by the defendant that he had deposited the compensation amount in a sum of Rs. 900.53 and subsequently the possession of the acquired land was said to have been delivered in the presence of the plaintiff with the police help on 17.04.1976, vide report dated DW8/B. The acquired land was also said to be mutated in favour of the appellant.

(3.) The order passed resulting in the publication was challenged by means of a suit by the plaintiff-1st respondent on 09.06.1976, that is, after the property was delivered with the police help on 17.04.1976. The trial Court, by a sweeping observation, found that the civil court had jurisdiction to decide on the validity of an order if the order was passed without jurisdiction or it had violated the procedure laid down by law in the manner of preparation and publication of the scheme. The Court was not prepared to go as far as to set out the actual violation and how the plaintiff, who had actually participated in the proceedings before the DCO and SCO had been prejudiced by alleged violations of the statutory procedures. The appellate Court went on at some length and discussed the issue from the point of view of how the statutory directions regarding the preparation and publication had not been followed. He referred to Section 30-A of the Act which required the scheme to be affixed in a conspicuous place in the village displaying sketch plan, the name of the distributory and RD of outlet, the date on which the scheme would be explained verbally by the DCO and the Lambardar concerned and the date of announcement by beat of drum. Ram Rakha, the Lambardar, was examined as PW2 and the Handu Ram, Chowkidar was examined as PW3. The Lambardar was to state in Court that there was nothing on the file to show that the scheme was affixed in a conspicuous place. Section 30 of the Act required the publication requiring the shareholders to make contribution and when the scheme was modified by the SCO on 26.11.1975, it was not ordered in the manner required and, therefore, the impugned order was without jurisdiction. Against this evidence, the Patwari was examined as DW1 and he was reported to have admitted that the draft scheme had not been published in the village and that the scheme was not affixed in a conspicuous place. This, according to the appellate Court, was a clincher to sustain the judgment of the court below declaring the order of the SCO to be illegal and void.