KHETA SINGH Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) THE petitioners have laid challenge to the orders dated 07.04.1992 (Annexure P3), passed by the Divisional Canal Officer, Mansa (for short, the 'DCO') respondent No. 2, who, while complying with the earlier order dated 05.06.1991 (Annexure P2) of the Superintending Canal Officer, Patiala (for short the 'SCO') directed that 106 kanals 14 marlas of land, detail of which is given in his order, was taken away from outlet No. 5033/L and added to outlet No. R.D. 10405/L, Rajbaha Jodhpur under Section 30 -B(2) of the Northern India Canal & Drainage Act, 1873 (for short, the 'Act'). The order dated 05.06.1991 (Annexure P2) of the SCO is also subject matter of challenge. The pleaded case of the petitioners is that their land holdings are irrigated by the Rajbaha, Jodhpur and they are shareholders of outlet No. R.D. 10405/L whereas respondents No. 3 to 5 are residents and landowners of Village Jodhpur Pakhar and their lands are irrigated from outlet No. R.D. 5033/L. The said respondents had moved an application that some of their areas be transferred from the chak of outlet No. R.D. 5033/L to that of outlet No. R.D. 10405/L to make irrigation of their field more convenient. Respondent No. 2 -DCO prepared and published a scheme under 30 -A of the Act, inviting objections and suggestions. The affected parties were heard and spot inspection was done. After taking into consideration all these factors, a six year chart regarding the manner and position of irrigation of these two outlets was also prepared and the DCO found that the existing system of irrigation was the most suitable and proper and rejected the application of the respondents vide order dated 12.09.1989 (Annexure P1). An appeal was filed before the SCO who remanded the case for reconsideration vide order dated 05.06.1991 (Annexure P2) with a direction that if some of the area had been transferred from R.D. 10405/L to some other outlet, then that much area may be added to that outlet. Instead of complying with the order of respondent No. 1, the DCO passed the impugned order, transferring 106 kanals 14 marlas of land from outlet No. R.D. 5033/L to R.D. 10405/L. Accordingly, the said order was challenged on the ground that the remand order of respondent No. 1 was not complied with and it was not verified whether some area had previously been taken away and then only some area could be transferred to outlet No. R.D. 10405/L. It was further alleged that the scheme had been rejected earlier on 12.09.1989 vide Annexure P1 and therefore, order dated 05.06.1991 could not have been passed by respondent No. 1.

(2.) IN the written statement, filed by respondents No. 1 & 2, it was pleaded that about 24 acres of land of respondents No. 3 and 5 were being irrigated from R.D. 10405/L and they were also shareholders of that outlet and order of remand was justified and the impugned order was passed in pursuance of the said remand order and in the interest of better irrigation. It was further averred that the petitioners have never challenged the order of respondent No. 1 dated 05.06.1991 and have submitted to the remand proceedings and now, could not lay challenge to it. That an appeal could have been filed against the order of the DCO before respondent No. 1 but the same had not been done by the petitioners.

(3.) COUNSEL for the petitioners vehemently submitted that there was a specific order by respondent No. 1 that if some area had been transferred from R.D. 10405/L to some other outlet, then only that much area should be added to the outlet. It was averred that no such finding had been recorded. It is further submitted that in the absence of any scheme prepared under Section 30 -B of the Act, the order could not have been passed once the scheme itself had been rejected on 12.09.1989 and that an appeal before respondent No. 1 was not an effective remedy since he himself passed the remand order on 05.06.1991.