HARI CHAND Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) THIS Writ petition is filed to quash the orders of the Superintending Canal Officer, Patiala Circle, Patiala, dated October 7, 1981.

(2.) ON May 27, 1980, the Deputy Collector decided the source of irrigation of land of village Munder and changed the Warabandi vide Annexure P -2. One Dev Raj preferred an appeal against the order of the Deputy Collector dated May 27, 1980, to the Divisional Canal officer who made some changes in the Warabandi. A further Revision was filed by one Sham Lal before the Superintending Canal Officer, Patiala, against the orders of the Divisional Canal Officer dated September 15, 1980. In that revision, petitioner is one of the respondent. The revision filed by Sham Lal was allowed partly and the decision of the Divisional Canal Officer was modified. The petitioner did not appear before the Superintending Canal Officer on February 11, 1981, when the matter was taken up and the order was passed. Questioning that the petitioner filed a Writ in this Court bearing No. C.W.P. No. 1274 of 1981 which was dismissed with a direction to the petitioner to avail the remedy of filing application to set aside the ex parte decision dated February 11, 1981, under Rule 99 of the Northern India Canal and Drainage Act, 1873. It is further stated that the concerned authority will, however, take into consideration the time spent by the petitioner in perusing the writ petition while calculating the period of limitation. Accordingly, on May 22, 1981, the petitioner approached the Superintending Canal Officer, Patiala, to set aside the ex -parte decision dated February 11, 1981, and after hearing, that application was dismissed by the Superintending Canal Officer, on the ground that there was no cause for condonation of delay beyond thirty days and, therefore, aggrieved by the same, the petitioner again came up to this Court. The learned counsel for the petitioner contended that the petitioner had no knowledge of the order passed by the Superintending Canal Officer dated February 11, 1981, till March 17, 1981, and on coming to know of the order on March 17, 1981, he immediately filed an application for certified copy on March 18, 1981 and thereafter he filed Writ Petition on March 31, 1981, and the Writ Petition was disposed of on May 15, 1981. He filed an application for condonation of delay before the Superintending Canal Officer on May 22, 1981. If the period spent by him in pursuing the remedy of writ in this Court is excluded, the application is within thirty days from the date of knowledge of the order. According to him, he came to know of the order on March 17, 1981 and, therefore, the time of applying for setting aside the ex parte order commences from March 17, 1981 and, therefore, the time of applying for setting aside the ex parte order commences from March 17, 1981, and the period from March 15, 1981, to March 31, 1981, had to be excluded in view of the orders of this Court dated May 15, 1981. If the said period is so excluded, the application is well within time.

(3.) RULE 99 says that if any party against whom an order or decision is made or given upon an appeal heard in his absence shall within thirty days from such order or decision, satisfy the Court that he had received no notice of the time and place fixed for the hearing thereof, or had not received such notice in sufficient time to permit him to appear and that he did not wilfully evade service thereof, the Court may pass order, if it thinks such order requisite for the ends of justice (and not otherwise) upon such terms as appear just, set aside its previous decision or order, and grant a re -hearing which shall be subject to the same rules as the hearing of an appeal. It is now well settled that when the notices were not served, the limitation for setting aside the order or decision starts from the date of knowledge of the order or decision. According to the petitioner, he had knowledge of the order of the Superintending Canal Officer dated February 11, 1981, only on March 17, 1981. The Superintending Canal Officer in his impugned order did not say that the petitioner had knowledge of the order as there was nothing on record to show that order was communicated to the petitioner and the petitioner received the same earlier to March 17, 1981. The respondent has not even filed any reply denying the averment of the petitioner that he came to know of the order only on March 17, 1981. Therefore, it can safely be taken that the petitioner came to know of the order only on March 17, 1981. The petitioner filed writ petition on March 31, 1981. He lost thirteen days from the date of knowledge and the writ petition was dismissed on May 15, 1981, and he filed the application before the Superintending Canal Officer on May 22, 1981, there he lost seven days. Thus, the petitioner lost twenty -two days in all. Therefore, the application filed by the petitioner before the Superintending Canal Officer is within thirty days from the date of the knowledge of the decision. The revision petitioner before the Superintending Canal Officer, namely, Sham Lal did not object to the change of Warabandi either before the Divisional Canal Officer or before the Deputy Collector. After going through the orders of the Deputy Collector and the Divisional Canal Officer and also the orders of the Superintending Canal Officer, I feel that a thorough and detailed examination of the whole matter is required to be done by the Superintending Canal Officer so that the rights of the parties in regard to irrigation of their land are settled.