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2000 DIGILAW 1222 (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 Articles 226 of the Constitution of India for issuance of writ in the nature of certiorari for quashing the order dated 20.12.1982 passed by the Chief Canal Officer, Haryana, Chandigarh, Annexure P-4, whereby at the request of respondent Nos. 3 to 6 and seven other share holders, ordered the transfer of the area 216/214 acres of Chak outlet RD 66039/L Bhalaut Distributory from Chak outlet 102445/R Jasrana minor as according to him, respondent Nos. 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 (respondent Nos. 3 to 6 and seven others) gave application to transfer their area from RD 102445 Jasrana minor to RD 66039/L Bhalaut Distributory 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, Rothak, 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 Distributory. 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 Distributory as respondent Nos. 3 to 6 were keen to get this area transferred. 4. The petitioners have made the order, Annexure P-4, of 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 respondent Nos. 3 to 6 were keen to get this area transferred. 4. The petitioners have made the order, Annexure P-4, of 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 respondent Nos. 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 not want their land to be transferred from Jasrana Minor to Bhalaut Distributory but still the land was transferred; that the authorities had wrongly presumed that if respondent Nos. 3 to 6 were interested to transfer their land from one distributory 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 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. Respondent Nos. 3 to 6 appeared through counsel and filed written reply and ultimately the writ petition and 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 respondent Nos. 1 and 2 and carefully gone through the file. At the time of final hearing, none appeared on behalf of respondent Nos. 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 respondent Nos. 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 Distributory 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, Rothak, which was also dismissed and the order had become final. Some share holders i.e. respondent Nos. They even filed appeal before the Superintending Canal Officer, W.J.C., West Circle, Rothak, which was also dismissed and the order had become final. Some share holders i.e. respondent Nos. 3 to 6 alongwith seven others again moved an application for the transfer of area measuring 216/214 acres from Jasrana Minor to Bhalaut Distributory 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 date produced in the Court, I find that the block of area in question is irrigable from its present source viz outlet RD 102445/R Jasrana Minor. The water courses for the outlet RD 66039/L Bhalaut Disty. 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 18.3.82 set aside. Decision given on 29.7.82 and the D.C.O. is requested to inform the parties accordingly. Sd/- Superintending Canal Officer, West Circle, Rohtak" 8. Dis-satisfied with the said order, respondent Nos. 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 Disty. but since the appellants were keen to get this area transferred even on a channel with lower fully 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 transfered area from outlet RD 66039/L Bhalaut Disty. the lined water course and the outlet RD 66039/L Bhalaut Disty. the lined water course and the outlet RD 66039/L Bhalaut Disty. shall be modified 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 29.7.82 would be applicable and also to ensure that the existing F.S.L. in the lined water-course RD 66039/L Bhalaut Disty. 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 LRD 66039/L Bhalaut Disty. for further necessary action. Decision given on 20.12.1982 and the parties may be informed accordingly. Sd/- Chief 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 irrigable 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 under-neath 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. outlet RD 102445/R Jasrana Minor, it would not be desirable to transfer the area from the said chak to outlet RD 66039/L Bhalaut Distributory. However, he transfered the area, since the appellants (respondent Nos. 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 comman or full supply level from the existing source (715.10) against the full supply level of (712.91) at RD 66039/L Bhalaut Distributory 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 to their area (216/214 to the Bhalaut Distributory). Thus, the area had been transferred just to satisfy the whims of respondent Nos. 3 to 6 and seven others and not on facts. Thus, the area had been transferred just to satisfy the whims of respondent Nos. 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 Distributory, which was to be got done by HSMITC 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 to been placed on the file. Moreover, the main contention of respondent Nos. 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 was not barred by the principle of res judicata/i>. 11. The contention of respondent Nos. 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 fully supply level from existing source (715.10) against the full supply level of (712.91) at RD 66039 Bhalaut Distributory. He further suggested that Jasrana Minor was under remodelling. The Superintending Canal Officer, West Circle, Rothak, 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 under-neath 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 Distributory. 12. Hence, in view of the fore-going 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 respondent Nos. 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 respondent Nos. It is not based on the facts at the spot but had been passed only at the whims of respondent Nos. 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 respondent Nos. 1 and 2 to allow the petitioners and other share holders to continue to irrigate their land from RD 102445 Jasrana Minor as they were doing earlier. Petition allowed.