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2000 DIGILAW 1219 (PNJ)

Ram Singh v. State of Haryana

2000-10-06

K.C.GUPTA

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JUDGMENT K.C. Gupta, J. - This writ petition has been filed by the petitioners under Article 226 of the Constitution of India for issuance of writ in the nature of certiorari for quashing the order dated 20.12.1983 passed by the Chief Canal Officer, Haryana, Chandigarh, Annexure P-4, whereby at the request of respondents No. 3 to 6 and seven other share holders, ordered the transfer of the area 216/214 acres to Chak outlet RD 66039/L Bhalaut Distributary from Chak outlet 102445/R Jasrana Minor as according to him, respondents No. 3 to 6 and others were adamant for transfer of the said area. 2. Briefly stated, the facts are that some of the share-holders (respondents No. 3 to 6 and seven others) gave application to transfer their area from RD 102445 Jasrana Minor to 66039/L Bhalaut Distributary in the year 1974. The scheme was published. After completing all the formalities, the Divisional Canal Officer, Rohtak, rejected the demand of transfer of this land vide order dated 31.1.1974. Aggrieved by the said order, they filed an appeal before the Superintending Canal Officer, W.J.C., West Circle, Rohtak, but the same was rejected and the order became final as no further appeal was filed. 3. It was next averred that in the year 1981, same share holders again approached the Divisional Canal Officer to transfer 216 acres of land from RD 102445/R Jasrana Minor to RD 66039/l Bhalaut Distributary. The said officer, after completing the formalities, ordered the transfer of the land on 18.3.1982 vide Annexure P-1. The petitioners filed appeal against the said order to the Superintending Canal Officer, Rohtak, who accepted the appeal on 29.7.1982 vide Annexure P-3. They further filed appeal before the Chief Canal Officer. He, vide order dated 20.12.1982, Annexure P-4, transferred the area from outlet RD 102445/R Jasrana Minor to RD 66039/L Bhalaut Distributary as respondent Nos. 3 to 6 were keen to get this area transferred. 4. They further filed appeal before the Chief Canal Officer. He, vide order dated 20.12.1982, Annexure P-4, transferred the area from outlet RD 102445/R Jasrana Minor to RD 66039/L Bhalaut Distributary as respondent Nos. 3 to 6 were keen to get this area transferred. 4. The petitioners have made the order, Annexure P-4, of the Chief Canal Officer as subject-matter of challenge by way of writ petition on the allegations that the matter had already been decided and as such respondents No. 3 to 6 were barred to again agitate the matter on the principle of res judicata; that some of the petitioners had filed affidavit before respondent No. 2, Chief Canal Officer, that they did want their land to be transferred from Jasrana Minor to Bhalaut Distributary but still the land was transferred; that the authorities had wrongly presumed that if respondents No. 3 to 6 were interested to transfer their land from one distributary to other, then all the share holders were interested; that the Chief Canal Officer had not decided the case on merits and that no transfer of area could be allowed on a water course unless the clearance certificate for lining had been given by the MITC. 5. Upon filing of the writ petition, notice of motion was issued for 23.2.1983. Respondents No. 3 to 6 appeared through counsel and filed written reply and ultimately the writ petition was admitted on 5.8.1983. 6. I have heard Sh. Satbir Godara, Advocate, for Sh. R.K. Malik, Advocate, for the petitioners, Ms. Geeta Mathuria, AAG, Haryana, for respondents No. 1 and 2 and carefully gone through the file. At the time of final hearing, none appeared on behalf of respondents No. 3 to 6, although their counsel, Sh. R.S. Kataria, Advocate, was informed. 7. It is an admitted fact that the land of the petitioners as well as respondents No. 3 to 6 and seven others is situated in Chak which is being irrigated from RD 102445/R Jasrana Minor. The area which has been transferred measures 216/214 acres. It is alleged that some of the share holders, in the year 1974, had moved an application to transfer their area from RD 102445 Jasrana Minor to 66039/L Bhalaut Distributary but their demand for transfer was rejected by the Divisional Canal Officer, Rohtak. The area which has been transferred measures 216/214 acres. It is alleged that some of the share holders, in the year 1974, had moved an application to transfer their area from RD 102445 Jasrana Minor to 66039/L Bhalaut Distributary but their demand for transfer was rejected by the Divisional Canal Officer, Rohtak. They even filed appeal before the Superintending Canal Officer, W.J.C., West Circle, Rohtak, which was also dismissed and the order had become final. Same share holders i.e. respondents No. 3 to 6 alongwith seven others again moved an application for the transfer of area measuring 216/214 acres from Jasrana Minor to Bhalaut Distributary and their request was accepted by the Divisional Canal Officer vide order dated 18.3.1982, Annexure P-1. The petitioners preferred an appeal to the Superintending Canal Officer, W.J.C., West Circle, Rohtak. He accepted the appeal vide order dated 29.7.1982, Annexure P-3, and passed the following order :- "After hearing the arguments of both the parties, perusal of Khaka Plan and other relevant data produced in the Court, I find that the block of area in question is irrigateble from its present source viz. outlet RD 102445/R Jasrana Minor. The water courses for the outlet RD 66039/L Bhalaut Distributary has been lined, also No Objection Certificate from the MITC is missing. Only measures need to be taken to improve the carriage of supply of water to the area by remodelling the intervening syphons underneath the Paksama Drain. The appeal is, therefore, accepted and DCOs decision dated 18.3.1982 set aside. Decision given on 29.7.1982 and the D.C.O. is requested to inform the parties accordingly. Sd/- Superintending Canal Officer, West Circle, Rohtak." 8. Only measures need to be taken to improve the carriage of supply of water to the area by remodelling the intervening syphons underneath the Paksama Drain. The appeal is, therefore, accepted and DCOs decision dated 18.3.1982 set aside. Decision given on 29.7.1982 and the D.C.O. is requested to inform the parties accordingly. Sd/- Superintending Canal Officer, West Circle, Rohtak." 8. Dissatisfied with the said order, respondents No. 3 to 6 and others filed an appeal before the Chief Canal Officer, Haryana, Chandigarh who vide his order dated 20.12.1982, Annexure P-4, accepted the appeal and passed the following order : "Looking to the full supply levels available from the existing source and the proposed source, it would not be desirable to transfer the area from Chak outlet RD 102445/R Jasrana Minor to Chak of outlet RD 66039/L Bhalaut Distributary, but since the appellants were keen to get this area transferred even on a channel with lower full supply levels by about 2.5", the request of the appellants agreed to on the express condition that before actually transferring the area and giving turn or wari of water to the transferred area from outlet RD 66039/L Bhalaut Distributary the lined water course and the outlet RD 66039/L Bhalaut Distributary shall be codified by HSMITC at the cost of appellants for which the amount shall be deposited by them in advance within 3 months of the date of decision of the CCO failing which the decision of SCO/WJC, West Circle, Rohtak 29.7.1982 would be applicable and also to ensure that the existing F.S.L. in the lined water-course RD 66039/L Bhalaut Distributary was not reduced or lowered in any manner. The S.C.O./D.C.O. may find out from the HSMITC as to the cost to be deposited by appellants for modification of the lined watercourse of outlet RD 66039/L Bhalaut Distributary for further necessary action. Decision given on 20.12.1982 and the parties may be informed accordingly. Sd/- Superintending Canal Officer, Haryana, Chandigarh." 9. Therefore, from the abovesaid orders, it is clear that the Superintending Canal Officer, West Circle, Rohtak, had found that the block of area in question was irrigateble from its present source i.e. outlet RD 102445/R Jasrana Minor. The only thing needs to be done is that measures are required to be taken to improve the carriage of supply of water to the area by remodelling the intervening syphons underneath the Paksama Drain. The only thing needs to be done is that measures are required to be taken to improve the carriage of supply of water to the area by remodelling the intervening syphons underneath the Paksama Drain. The Chief Canal Officer has also observed in his order that looking to the full supply level available from existing source i.e. RD 102445/R Jasrana Minor, it would not be desirable to transfer the area from the said Chak to outlet RD 66039/L Bhalaut Distributary. However, he transferred the area, since the appellants (respondents No. 3 to 6 and seven others) wanted such a transfer. This means that he had not transferred the area on the facts existing at the spot but under some pressure. He has further observed in his order that it was pointed out to the appellants that the area desired to be transferred had better command or full supply level from the existing source (715.10) against the fully supply level of (712.91) at outlet RD 66039/L Bhalaut Distributary and as such it might not be possible to irrigate the transferred area by flow irrigation from the proposed source but the appellants were adamant for transfer of the area (216/214 to the Bhalaut Distributary). Thus, the area had been transfered just to satisfy the whims of respondents No. 3 to 6 and seven others and not on facts. Moreover, the appellants and other share holders were to spend unnecessarily for the modification of outlet RD 66039/L Bhalaut Distributary, which was to be got done by HSMIC at their cost. 10. The principle of res judicata is not applicable to the facts of the present case as previous orders passed by the competent authorities have not been placed on the file. Moreover, the main contention of respondents No. 3 to 6, in their written statement, is that due to construction of Paksama Drain, their source of irrigation had been damaged and water supply did not reach them. This is a subsequent event for which they could move a fresh application for transfer of their area and as such the application before the competent authorities for transfer of their area and was not barred by the principles of res judicata. 11. The contention of respondents No. 3 to 6 that due to construction of Paksama Drain their source of irrigation had been damaged had not been confirmed by the Chief Canal Officer. 11. The contention of respondents No. 3 to 6 that due to construction of Paksama Drain their source of irrigation had been damaged had not been confirmed by the Chief Canal Officer. He, in his order, had stated that the area desired to be transferred had better command or full supply level from existing source (715.10) against the fully supply level of (712.91) at outlet RD 66039/L Bhalaut Distributary. He further suggested that Jasrana Minor was under remodelling. The Superintending Canal Officer, West Circle, Rohtak, in his order, had also suggested that only measures which required to be taken are to improve the carriage of supply of water to the area by remodelling the intervening syphons underneath of supply of water to the area by remodelling the intervening syphons underneath the Paksama Drain. Thus, there is no justification to transfer the area from outlet RD 102445/R Jasrana Minor to outlet RD 66039/L Bhalaut Distributary. 12. Hence, in view of the foregoing discussion, it is held that order dated 20.12.1982, Annexure P-4, passed by the Chief Canal Officer, Haryana, cannot be sustained in the eyes of law. It is not based on the facts at the spot but had been passed only at the whims of respondents No. 3 to 6 and other seven share holders and as such the same is quashed. Accordingly, the writ petition is accepted and the writ of mandamus is issued directing respondents No. 1 and 2 to allow the petitioners and other share holders to continue to irrigate their land from RD 102445/R Jasrana Minor as they were doing earlier. Petition allowed.