BHAG SINGH Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) The petitioners are 69 right-holders of village Khialiwala, tehsil and district Bhatinda. They receive irrigation for their fields from outlet RD 10880-R Kot Bhai distributary which is under the jurisdiction of the Divisional Canal Officer, Bhatinda, respondent 2. Respondents 3 to 5 are the residents of village Gobindpura which is at a distance of about two miles from the petitioners' village and that village is served by outlet RD 6390-R Kot Bhai distributary. Respondents 3 to 5 also get water for irrigating about 26 acres of their land from RD 10880-R. They made a request to respondent 2 for being permitted to get the water for further 41 standard acres of their land from RD 10880-R instead of RD 6390-R. Respondent 2, acting under Section 20 of the Northern India Canal and Drainage Act, VIII of 1873 (hereinafter called the Act), allowed the request of respondents 3 to 5 and permitted them to take water for 41 acres of their land from RD 10880-R. A copy of that order is Annexure 'A' to the writ petition. This order was subject to confirmation by the Superintending Canal Officer to whom it was sent on November 10, 1967. The Superintending Canal Officer did not approve of that order but sent the case back to respondent 2 with the direction that action should be taken under Section 30-A of the Act as Section 20 was not applicable. From the record it appears that after passing the order on October 16, 1967, respondent 2 prepared the scheme and the plan allowing respondents 3 to 5 to irrigate another 41 acres of their land from RD 10880-R in accordance with his order dated October 16, 1967. After the case was remanded by the Superintending Canal Officer, fresh notices were issued to the right-holders. In the notices, the particulars of the scheme were not given. All that is mentioned is that some area was proposed to be exchanged between RD 6390-R and RD 10880-R. The names of the right-holders were mentioned as Gurdev Singh, Kartar Singh, Bhagwan Singh, Joginder Singh, Pritam Singh etc. of Gobindpura. No other particulars have been mentioned. The right-holders were informed to appear before the Divisional Canal Officer on January 17, 1968. About 20 right-holders were served personally with the notice and the report of the Process-Server shows that a copy of the notice was pasted in a thoroughfare and that the Chaukidar was asked to make the proclamation. About 10 right-holders filed objections before the Divisional Canal Officer on January 17, 196.8, on which the order of the Divisional Canal Officer reads as under :-

(2.) Respondent 2 passed a detailed order on January 17, 1968, a copy of which is Annexure 'B' to the writ petition. Against that order Hazura Singh Sarpanch and Surjit Singh son of Sunder Singh of village Khialiwala filed a revision petition before the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana, which was dismissed and it was decided that 41 acres area of respondents 3 to 5 should be transferred to outlet RD 10880-R from outlet RD 6390-R. This order was passed on May 15, 1968 whereafter the petitioners filed the present writ petition in this Court.

(3.) The return to the writ petition has been filed by respondents 1, 2 and 3 in which it has been stated that the scheme was framed under Section 30-B of the Act and was duly notified as required by rule 79 of the Rules framed under the Act. From the record I find that the scheme as such was never published under Section 30-B(2) of the Act. A notice was sent to the right-holders to appear on January 17, 1968 to raise objections to the transfer of areas from one outlet to the other. The numbers of two outlets were mentioned as 6390-R and 10880-R but it was not mentioned from which outlet the area was proposed to be transferred to the other outlet nor was the area of the land proposed to be transferred from one outlet to the other mentioned. The right-holders could not, therefore, know the terms of the scheme. In order to bind all the right-holders, it was necessary that the scheme as a whole should have been published so that all right-holders could be deemeed to have notice of the same. This writ petition came up for hearing before me on April 17, 1969 and when I wanted to see the record, I was told that the record had not been received from respondents 1 and 2. I then allowed time to the learned counsel for the said respondents to produce the record before me today. From the record I find that the scheme was not duly published in accordance with Rule 79 and, therefore, all proceedings taken by the Divisional Canal Officer on the basis thereof were not valid. The orders of respondents 1 and 2 are, therefore, liable to be quashed.