SURESH KUMAR Vs. CHIEF CANAL OFFICER

JUDGEMENT

(1.) THIS petition under Articles 226/227 of the Constitution of India has been filed seeking quashing of the order dated 29.1.2008 (Annexure- P.8) passed by the Chief Canal Officer, Panchkula (respondent No. 1) whereby the order dated 12.7.2007 (Annexure-P.7) passed by the Superintending Canal Officer, Y.W.S. Circle, Rohtak (respondent No. 2) has been set aside.

(2.) PARDEEP Kumar (respondent No. 7) filed an application (Annexure-P.1) on 19.6.2003 before the Divisional Canal Officer, Rohtak (respondent No. 3) for sanction of water course A-B as depicted in the site plan (Annexure-P.9) on compensation basis in the 'Chak' of outlet RD No. 10650-L Madina Minor, Village Bahu Akbarpur, Tehsil and District Rohtak from the land comprised in rectangle No. 38, Khasra No. 24, 25/1 and 25/2. It was claimed by Pardeep Kumar (respondent No. 7) that the said water course A-B is suitable for the irrigation of his fields and he was also utilizing this water course for the last 50 years. The Divisional Canal Officer, Rohtak (respondent No. 3) on 10.2.2004 recorded the statement (Annexure-P.2) of Pardeep Kumar (respondent No. 7) wherein he reiterated his prayer for sanction of water course from the aforesaid land. The land comprised in rectangle No. 38, Khasra Nos. 24 and 25/1 is owned by Ram Mehar and Ram Bhagat (respondents No. 4 and 5) and land comprised in rectangle No. 38, Khasra No. 25/2 is owned by Smt. Rasalo daughter of Ramji Lal. The petitioner Suresh Kumar is a co-sharer in the land comprised in rectangle No. 38, Khasra No. 25/2. The case was got investigated from the Ziledar, who reported the matter to the Sub Divisional Canal Officer, Rohtak. The Ziledar and the Sub Divisional Canal Officer, Rohtak after inspection of the spot vide recommendations (Annexures-P.3 and P.4) recommended the case of Pardeep Kumar (respondent No. 7) for sanctioning the water course A-B from land comprised in rectangle No. 38, Khasra No. 24, 25/1 and 25/2. The Divisional Canal Officer (respondent No. 3) after going through the spot inspection report sanctioned the water course A-B in the 'Chak' of outlet No. RD-10650-L Madina Minor of Village Bahu Akbarpur vide order dated 28.3.2005. Ram Mehar (respondent No. 4) and others aggrieved against the said order dated 28.3.2005 of the Divisional Canal Officer filed an appeal before the Superintending Canal Officer who vide order dated 26.11.2006 remanded the case for fresh decision. On remand, the Divisional Canal Officer (respondent No. 3) sanctioned the water course C-D from rectangle No. 61, Khasra Nos. 4 and 5. The said land comprised in rectangle No. 61, Khasra Nos. 4 and 5 is owned by the petitioner Suresh Kumar. According to the petitioner before passing the said order dated 7.3.2007 (Annexure-P.5) the Divisional Canal Officer (respondent No. 3) did not give any opportunity of hearing to him. Aggrieved against the order dated 7.3.2007 (Annexure-P.5), passed by the Divisional Canal Officer (respondent No. 3), Pardeep Kumar (respondent No. 7) filed an appeal before the Superintending Canal Officer, Rohtak. Again a prayer was made for sanctioning the water course A-B from the land comprised in rectangle No. 38, Khasra Nos. 24, 25/1 and 25/2 besides for setting aside the order dated 7.3.2007 (Annexure-P.5). The Superintending Canal Officer, Rohtak (respondent No. 2) accepted the appeal vide order dated 12.7.2007 (Annexure-P.7) and the application for sanctioning the water course A-B from the land comprised in rectangle No. 38, Khasra Nos. 24, 25/1 and 25/2 was allowed. The respondents Nos. 4 to 6 then filed an appeal against the order dated 12.7.2007 (Annexure-P.7) of the Superintending Canal Officer, Rohtak before the Chief Canal Officer, Panchkula (respondent No. 1) who accepted the same vide order dated 29.1.2008 (Annexure-P.8). The petitioner aggrieved against the said order has filed the present petition.

(3.) IT may be noticed that Section 17 of the Haryana Canal and Drainage Act, 1974 ('Act' - for short) provides for preparation of draft scheme. It is provided that notwithstanding anything contained to the contrary in the Act but subject to the rules prescribed, Divisional Canal Officer may, on his own motion or on the application of share holder, prepare a draft scheme to provide for all or any of the matters, namely :- (a) The construction, alteration, extension and alignment of any watercourse or re-alignment of any existing watercourse; (b) allotment of any new areas to a watercourse or an outlet or allotment of area served by one watercourse to another or from one outlet to another or for exclusion of an area, from an outlet or a watercourse; (c) construction of a new outlet, shifting or modification of an existing outlet. Explanation :- Any change in the design or size or both of an outlet, whose design or size or both have been changed in an unauthorised manner for restoring the same to its authorised discharge shall not be deemed to be a modification; (d) the lining of any watercourse; (e) the occupation of land for the deposit of soil from watercourse clearances; (f) any other matter which is necessary for the proper maintenance and distribution or supply of water from a watercourse or an outlet." In terms of Section 17 of the Act in case there is to be construction, alteration, extension and alignment of any watercourse or allotment of any new area to a watercourse or allotment of any new areas to a watercourse or an outlet or allotment of area served by one watercourse to another or from one outlet to another or for exclusion of an area, from an outlet or a watercourse or any other matter which is necessary for the proper maintenance and distribution or supply of water from a watercourse or an outlet a draft scheme is to be prepared. The scheme so prepared is to be published in terms of Section 18 of the Act which provides for publication of scheme. It is envisaged therein that every scheme shall, as soon as, may after its preparation, be published in such form and manner as may be prescribed for inviting objections and suggestions in respect thereof within twenty-one days of its publication. Sub-section (2) of Section 18 of the Act provides that after considering such objections and suggestions, if any, the Divisional Canal Officer shall approve, modify or reject the scheme within thirty days of the time for the receipt of such objections and suggestions, unless this period is extended by the Superintending Canal Officer for good and sufficient reasons. In terms of the proviso prior approval of the Chief Canal Officer is to be obtained for allowing, - (a) a new outlet on a main canal or branch canal; and (b) an outlet with discharge of less than 0.75 cusec. Section 18 of the Act, therefore, applies to local re-adjustment even within the jurisdiction of the Divisional Canal Officer with respect to matters mentioned in clauses (a) to (f) of Section 17. Besides, Section 18 statutorily contemplates the application of the principles of natural justice. As such, before sanctioning the water course C-D a scheme was liable to be published. In the circumstances, there has been an infraction of the rules, besides non- compliance of the provisions of the Act. Therefore, it would be just and expedient that the order dated 29.1.2008 (Annexure-P.8) passed by the Chief Canal Officer is set aside and the case is remanded back to him for considering the objections of the petitioner as admittedly he has not been heard before passing the said order. As such, his rights are materially affected and it would be just and expedient that a hearing is given to him.