GURBHAGAT SINGH Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) The petitioners own land in village Madhar Kalan, Tehsil Muktsar, District Faridkot and they are shareholders of outlet No. RD-111010- L, Faridkot Rajbaha getting irrigation from Sirhind Canal. The Division Engineer, Lining Division of the Punjab State Tubewell Corporation Limited, Faridkot, purporting to exercise the powers of Divisional Canal Officer under the Northern India Canal and Drainage Act, 1873, (hereafter the Act) prepared and published a scheme under Sections 30-A and 30-B thereof for the lining of the water course getting irrigation from outlet RD-111010-L. The petitioners claim that they did not get any notice of the scheme and that they learnt about it when the actual work of lining was started. The scheme was, however, approved vide order dated July 7, 1976, (P.3). The petitioner filed an appeal against the order P.3, which was dismissed by the Superintending Canal Officer vide order dated March 3, 1978, (P.6). The petitioners have assailed P.3 and P.6 in the present writ.

(2.) It is not disputed that the proceedings under sections 30-A and 30-B of the Act were taken by Mr. G.S. Brar, Divisional Engineer, Punjab State Tubewell Corporation Limited, Faridkot, and the impugned order dated July 7, 1976, (P.3) approving the scheme was also passed by him. Mr. G.S. Brar was appointed Divisional Canal Officer under the Act vide notification dated September 20, 1976, (P.2). The Government issued another notification dated November 2, 1977 (P.3) appointing Mr. G.S. Brar as Divisional Canal Officer with effect from May 1, 1975. The notification dated November 2, 1977, was obviously issued to validate the actions of Mr. G.S. Brar which he had taken under the provisions of the Act before September 20, 1976.

(3.) The learned counsel for the petitioners has argued that Mr. G.S. Brar was not a validly appointed Divisional Canal Officer when he initiated the proceedings under sections 30-A and 30-B of the Act and further passed the impugned order dated July 7, 1976., (P.3). His appointment as Divisional Canal Officer vide notification dated November 2, 1977, with effect from May 1, 1975, will not validate this actions under the Act taken before September 20, 1976. Reliance has been placed on The Income Tax Officer, Alleppey v. I.M.C. Pounoose and others, 1970 AIR(SC) 385. The impugned order p.3 being ultra vires is liable to be set aside. The contention of the learned counsel for the petitioners must prevail.