KARTAR SINGH Vs. CHIEF ENGINEER IRRIGATION

JUDGEMENT

(1.) THE petitioners, about 27 in number, who are right-holders of village Kapura and village Raoli, Tehsil Moge, District Ferozepore, have approached this Court with the averments that the State of Punjab proposed to dig out a drain known as Raoli Drain Link which was to pass through the village of the petitioners and drain off the water of villages Datta, Kapura and Raoli and ultimately it was intended to fall in Ajitwal Drain. The draft scheme was prepared and approved by the Superintending Engineer, Ludhiana, as is clear from circle letter dated 27-1-1964. The excavation was ordered by the Superintending Engineer and the matter was referred to the Deputy Commissioner, Ferozepore for implementation. This link, drain was to be excavated through voluntary labour. The Deputy Commissioner, Ferozepore wrote to the Block Development and Panchayat Officer that the excavation of Kakri and Raoli Link Drains may be started by mobilising voluntary labour. The Block Development and Panchayat Officer in turn wrote to the Sub-Divisional Officer, Drainage Sub-Division II, in June 1964 to give the demarcation at site to the overseer so that digging operations might be started. The petitioners and other right-holders of the village desired that the link drain should pass from north to east of their villages and after passing through Kapura, Raoli and Dosajh should fall in Dagro drain because the natural flow of water was towards the east of the villages and the water had been passing from north to east of the petitioners' villages for the last nearly fifty years. The respondents, however, according to the writ petition "are taking steps to dispossess the petitioners illegally from the land in which their crops are standing". This scheme is described by the petitioners to be illegal, unconstitutional, unjust and void. It has been emphasised that no notification under Section 6 of the Land Acquisition Act has been issued nor has any draft scheme of the link drain, as envisaged by Section 30-B of the Northern India Canal and Drainage Act, been published in accordance with law. It is on these averments that this Court has been approached for suitable relief by means of an appropriate writ, order or direction.

(2.) ACCORDING to the return, it has been pleaded that the catchment area of the link drain is included in the project of Moga drain and it is not possible to drain off this water into Dagru drain. If the water of villages Data, Chak Bajasar and Kokri etc. , is diverted to Dagru drain, it would badly affect village Raoli, besides, the capacity of Syphon below Kokri distributory would have to be increased to pass this extra water which will cost more than Rs. one lakh and is not advisable. The alignment is technically correct and must appropriate one. It has further been pleaded that it is not at all necessary to acquire the land because the drain is a voluntary one and villagers themselves have to take part voluntarily to do free labour for excavation. The State department has merely to give the alignment on the request of the villagers. Indeed, it is pleaded that no action has been taken to deprive the petitioners of their land by the department. It has further been averred that no injustice is being done to anybody by digging of the drain, because it would serve the interest of the area as a whole. The land is not to be taken possession of under the Land Acquisition Act because the drain is merely a field drain.

(3.) THE learned counsel for the respondents has not been able to show to me any law under which the respondents can forcibly go on the petitioners' land either to dig a drain or to force the petitioners or anyone else to dig the required drain on the petitioners' land. It has been conceded that no action has been taken under Sections 30-A to 30-G of the Northern India Canal and Drainage Act by way of preparation of a draft scheme, as contemplated by these provisions, nor has any other provision of law been brought to my notice for the purpose of justifying the coercive steps against which the petitioners complain. I quite see that the suggested drain may be for the benefit of all the citizens in the locality, but this by itself does not justify any coercive steps on the land of an unwilling holder, which is not sanctioned or authorised by law. It must never be forgotten that our State is a legal State and to be a legal State, clearly means that the State has itself to obey the law and to be regulated by the legal provisions in their coercive action against the citizens. Full scope to act entrusted to the administrator under the Rule of law does not extend to the coercive power over the citizens unless it is strictly sanctioned by law. The contention that the respondents have a discretion to carry out a beneficial measure which is for the good of the people, and this Court should not in its discretion interfere with the exercise of such power, is, in my opinion, somewhat misconceived in the present case. The problem of discretionary power, as it directly affects the rule of law, is not a problem of limitation of powers of particular agents of Government but of the limitation of powers of the Government as a whole. It is problem of the scope of administration in general. Nobody disputes the fact that in order to make efficient use of the means at its disposal, the Government exercise a great deal of discretion. But under the Rule of law, the private citizen and his property are not an object of administration by the Government, not a means to be used for its purpose, it is only when the administrative agency interferes with private sphere of the citizen that the problem of discretion becomes relevant; the principle of the Rule of law means that the administrative authority should have no discretionary power in this respect. There is nothing more fundamental in our democracy than the Rule of law because it means a good deal more than fair and honest administration of justice in the Courts. It is the most distinctive operative ideals of our development, and the business of administration in this Republic means the management of the business of the State in conformity with law. Unless our administrative officers fully realise the implications of the Rule of law and imbibe true democratic spirit and temper by properly adopting the democratic way of life, our welfare democracy cannot grow to its full healthy stature.