DALIP SINGH AND ANOTHER Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioners and Sohan Lal respondent No. 4 own land in village Jandwala Bhimeshah, Tehsil Fazilka, District Ferozepur, which is irrigated by canal water at outlet No. 54029-L of Bhagsar Minor. According to the petitioners, about 25 rightholders of the village are irrigating their land from this outlet. Respondent No. 4 takes his turn of water after the turn of about 23 rightholders and the turn of the petitioners follows immediately his turn. The case of the petitioners is that in 1975-76, respondent No. 4 illegally fixed a Jhatta (water thrower) on the water-course in such a way that when the turn of the petitioners started they got the water course empty with the result that some of their allotted time was wasted in Jharai. The petitioners, therefore, moved an application under Section 30-FF of the Northern India Canal and Drainage Act, 1873, praying that the Jhatta illegally fixed by respondent No. 4 be removed. The Divisional Canal Officer vide order dated May 21, 1976 (P.1) held that no substantial loss has been suffered by the petitioners by the use of Jhatta fixed by respondent No. 4. He, however, directed respondent No. 4 to get his Nakka constructed as pucca one and also ordered him to irrigate his one Killa of land without using Jhatta before handing over the turn of water to the petitioners. The petitioners filed an appeal against the order of the Divisional Canal Officer P.1 which was dismissed by the Superintending Canal Officer vide order dated February 17, 1977 (P.6). This order was passed ex parte against the petitioners. The petitioners have assailed the orders P. 1 and P. 6 in the present writ.

(2.) The learned counsel for the petitioners has argued that Dalip Singh petitioner did not get intimation about the hearing of the case fixed before the Superintending Canal Officer on February 17, 1977. The intimation was, however, received by his son, who informed the Superintending Canal Officer vide telegram dated February 16, 1977 (P.3) that his father was away to Delhi and further prayed for adjournment. The Superintending Canal Officer did not adjourn the case and passed the ex parte order P.6. The petitioners then approached the Superintending Canal Officer for setting up ex parte order P. 6 which prayer was declined on the ground that he could not review his order P. 6. The argument proceeds that the Superintending Canal Officer wrongly passed the order P.6 ex parte against the petitioners and further erred in holding that he could not set aside the same as it amounted to review of this earlier order. The contention of the learned counsel for the petitioners must prevail.

(3.) Dalip Singh petitioner who was issued a notice by the Superintending Canal Officer for February 17, 1977, was not served. On February 16, 1977, the son of Dalip Singh informed the Superintending Canal Officer that his father was to Delhi and he further prayed for adjournment. In view of the fact that Dalip Singh petitioner had not been served, the Superintending Canal Officer erred in proceeding ex parte against him. It is true that the Superintending Canal Officer has no jurisdiction to review his earlier order. This principle will, however, apply where the earlier order had been passed after hearing the parties. In the instant case, the earlier order P. 6 was passed ex parte against the petitioners. The Superintending Canal Officer had the jurisdiction to set aside the ex parte order against the petitioners if he could come to the conclusion that the petitioners had good justification for being absent on the date fixed.