NAND LAL AND ANOTHER Vs. BALLU AND OTHERS

JUDGEMENT

(1.) This is an appeal under clause 10 of the Letters Patent against the judgment of a learned Single Judge of this Court accepting the writ petition filed by Ballu son of Amin Lal and Ghasi, respondents 1 and 2, and quashing the order dated 30th March 1966 passed by the Superintending Canal Officer, Western Jamna Canal West Circle, Rohtak, respondent No.4.

(2.) Respondents 1 and 2 are right holders of village Pinana, district Rohtak and their land was irrigated by the outlet RD. 9250 R of Gohana minor. this outlet according to the State, irrigated land to the extent of 420 acres belonging to the landowners of village Pinana and 120 acres of the proprietors of the adjoining village Salarpur Majra. In 1965, Ballu alias Dalu s/o Data Ram and Nand Lal, appellants who also owned land in village Pinana, made an application to the irrigation authorities, because they wanted a new outlet RD. 11150 R on the same minor. On receiving this application, the Sub Divisional Officer drew up a scheme under Section 30-A of the Northern India Canal and Drainage Act, 1887, (hereinafter called the Act, ) and forwarded the same to the Divisional Canal Officer for confirmation under Section 30-B of the Act, . The latter heard the objections filed by respondents 1 and 2 and he was satisfied with the scheme of splitting the Chak of outlet RD 9250 R into two Chaks with a new outlet RD 11150 R on the same minor, as recommended by the Sub Divisional Officer. After certain modifications, he sent the same to the Superintending Canal Officer for approval in view of some departmental instructions under which the Executive Engineer (Divisional Canal Officer) was no competent to sanction an outlet for less than 300 acres and he had to get the administrative approval from the higher authority for such outlets. The Superintending Canal Officer rejected the proposal on 19/20.12.1965 with the remarks that the irrigation of the area proposed to be transferred to the new outlet RD 11150 R was double than the permissible one. Subsequently, the appellants and some other right-holders approached the Minister for Irrigation and Power, respondent No. 7 for the redress of their grievances. He forwarded their applications to the Superintending Engineer directing him to inspect the spot and see that justice was done to them. The Superintending Engineer, on his part, sent these applications to the Executive Engineer asking him to make a report after inspecting the site personally. The Executive Engineer complied with this direction and made enquiries as to whether some more area could be retained on the existing outlet RD 9250 to make it of a bigger size. Some right-holders gave their consent to their area being irrigated by this very outlet. The Zilledar also went to the village for making enquiries in this behalf and before him respondents 1 and 2 objected to the proposed arrangement of splitting up the outlet. This Divisional Canal Officer on 28.3.1966, then again referred the same to the Superintending Engineer for according administrative approval to the existing outlet for 144/138 acres GA/CCA instead of 120/110 acres GA/CCA previously recommended by him. This recommendation was accepted by the Superintending Canal Officer on 30.3.1966 as a Special case. Against this order, respondents 1 and 2 filed a writ petition in this Court which was accepted by Marula, J. on 30th September, 1966 and he quashed the impugned order on the ground that the same was contrary to law and the new scheme submitted by the Divisional Canal Officer on 28th of March, 1966 was never prepared in accordance with law and could not have been approved and made final without proper publication and hearing all the objectors thereto including respondents No. 1 and 2. The learned Judge was of the view that previously a scheme was prepared, objections to the same were filed by respondents No. 1 and 2 which were heard and the scheme was rejected. Under orders of the Minister, the matter was re-opened, a new scheme was prepared, no notice of the same was given to respondents 1 and 2, they were not given any hearing and the scheme was forwarded by the Divisional Canal Officer to the Superintending Canal Officer who approved the same. At no stage of the proceedings relating to the second scheme, respondents 1 and 2, according to the learned Judge, were heard. Further, the Superintending Engineer had rejected the earlier scheme. He had no power to review his own earlier order, as no such jurisdiction was conferred on him by the Act, . He could, however, revise the order of the Divisional Canal Officer, but he was not doing that in the instant case, because he had rejected earlier scheme submitted by he Executive Engineer and on the second the occasion, he was approving the proposal submitted to him. Against this decision, the present appeal has been filed by Ballu alias Dalu s/o Data Ram and Nand Lal.

(3.) Learned counsel for the appellants submitted that the learned Single Judge had not taken note of the amendment made in the Act, by the Amending Act, No. 21 of 1963, whereafter the Divisional Canal Officer was the final authority for the approval of a scheme and he was not to submit the same to the Superintending Canal Officer. In the instant case according to the learned counsel, the Divisional Canal Officer did not send the scheme of splitting up the outlet for approval to the Superintending Canal Officers wrongly assumed by the learned Single Judge. After this amendment, the Divisional Canal Officer was competent to approve the scheme as originally referred or in a modified form. The said officer heard the objections on 20th November, 1965 and thereafter he approved the scheme. He had, however, submitted the same to the Superintending Canal Officer for administrative approval as the area at one of the outlets was less than 300 acres. When the Superintending Canal Officer put up a different proposal regarding average on the outlets and the same then received the administrative approval of the Superintending Canal Officer. By this action, the Superintending Canal Officer had neither approved nor disapproved the scheme of the splitting up of the outlets, because the same had been finally contended that the orders of the Superintending Canal Officer did not even amount to revising the scheme. Both his orders were administrative in nature.