BAWA SINGH Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) The petitioners are landowners and right-holders of village Khusropur, Tehsil and District Kapurthala. They have filed the present writ petition and the allegations that the respondents (Executive Engineer (Drainage), Jullundur and Sub-Divisional Officer (Drainage), Kapurthala) want to dig a drain through the land of the petitioners. They came to know of this fact when the employees of the department came to demarcate the alignment of the drain for its digging on April 24, 1967. They approached respondent No. 2 but he told them that the drain was going to be dug under the orders of the higher authorities. According to the petitioners, originally a survey was made on the lands of Lachhman Singh, Dalip Singh and Amar Singh of the village who, being influential persons, managed to get the alignment of the drain changed. Their grievance is that no scheme has been prepared or published under Section 30-A of the Northern India Canal and Drainage Act (8 of 1873) (hereinafter called the Act), and, therefore, the digging of the drain, without such a scheme being prepared or published, is without the authority of law. They have, therefore, sought the relief that the respondents should be restrained from digging the drain through their lands. This writ petition was filed on May 1, 1967, and was admitted on May 31, 1967. The digging operation was stayed till May 15, 1967, for which date notice of the stay application was given. On May 15, 1967, nobody appeared on behalf of the respondents and the learned Single Judge confirmed the stay of digging operations till the decision of the writ petition. The result is, that so far the drain has not been dug.

(2.) The return has been filed by Shri Gurpal Singh Rehal, Executive Engineer, Jullundur Drainage Division, Jullundur, in which it has been pointed out that no action has been taken under the provisions of the Act but the land is being acquired under the provisions of the Land Acquisition Act (1 of 1894). A notification No. Mp. 2703/Floods(3) dated May 24, 1967), under Sections 4 and 17 of the Land Acquisition, was issued and 11.01 Acres of area in Khusropur village was specified for acquisition. The petitioners have not filed any petition questioning the legality or validity of the said notification nor have they said whether the area sought to be acquired covers any land of the petitioners. The petitioners seem to be quite ignorant of this notification.

(3.) The submission of the learned counsel for the petitioners is that the scheme should have been prepared under Section 30-A and published under Section 30-B or 57 of the Act and that no drainage work could be carried out without a scheme being prepared as required by Section 57 of the Act. I regret my inability to agree to this submission. Section 57 of the Act only applies where the Government wishes to execute some drainage works and the entire cost or a part of it is intended to be recovered from the owners of the land who are to benefit from those works. In case the State Government wishes to execute any works without making any landowner liable for its cost, Section 57 of the Act does not apply. The land in such a case can be acquired under the provisions of the Land Acquisition Act as has been done in the instant case. The point is not res integral as a Division Bench of this Court, in Civil Writ No. 1461 of 1963, Bhagat Singh and others v. The State of Punjab and others, decided on May 25, 1964, took the same view. In that case it was submitted by the learned counsel that the State Government had no option to proceed according to the Land Acquisition Act as it was a general Act but it had to proceed according to Part VII of the Act which was a special Act. Repelling this argument, the learned Judges observed as under :-