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2002 DIGILAW 431 (PNJ)

Nafe Singh v. State Of Haryana

2002-04-23

K.C.GUPTA

body2002
Judgment K.C.Gupta, J. 1. This writ petition has been filed by Nafe Singh and Moonga petitioners under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari for quashing the impugned order Annexure P-2 and also further for a writ of mandamus directing the respondents to grant an opportunity for hearing to the petitioners and to decide the matter afresh in the presence of the parties. 2. Briefly stated, the facts are that the petitioners are owners in possession of the agricultural land comprised in rectangle No. 28 and killas No. 8, 9 and 10 along with other land situated nearby the aforesaid land in village Phuralak, Sub Tehsil Gharaunda, District Karnal. 3. It was next averred that the petitioners are small land owners and have installed tubewells in their agricultural land and watercourse link on the two sides of their land is already in existence. A canal named Rasin Minor/tail of Rasin Minor is situated nearby their fields and from the tail there exists a watercourse which supplies water to their fields as well as the fields of other persons. However, the canal authorities, for the reasons best known to them decided to change the route of watercourse diverting the same from the present route in existence and the Divisional Canal Officer an order to this effect which was confirmed by the Superintending Canal Officer in appeal. It was further averred that the petitioners filed an appeal to the Chief Canal Officer against the order of Superintending Canal Officer and before the Chief Canal Officer a mutual agreement was arrived at between the parties and accordingly he passed a mutually consented order dated 4.1.1990 (Annexure P-1). It was agreed that alignment from point A towards North along the village boundary and then square line of Kila No. 1, 2 and 3 of rectangle No.28 and passing through the land of the petitioners and then from the land of the panchayat in killas No.4 and 5 of rectangle No.29 to link the point X be maintained. In this way even the bifurcation of their land was avoided. 4. In this way even the bifurcation of their land was avoided. 4. It was further averred that in the month of September 1991 the petitioners came to know from reliable source that order Annexure P-l has been changed by the Chief Canal Officer suo moto and on enquiry it was revealed that the changed order annexure P-2 had been passed by him on 27.7.1990 without hearing them and in the changed order the water course was to pass through their killas Nos. 8, 9 and 10 which was illegal as the said order would divide their land into four parts. With these allegations, the present writ petition was filed. 5. Respondents No. 4 to 7 (private respondents) filed written reply dated 17.11.2001. They stated that after appreciating the hardship faced by the parties, the Chief Canal Officer provided alignment of the water course "ABCXY" from point A towards North along the boundary of village and the square line of killa Nos. 1, 2 and 3 of rectangle No. 28 passing through the land of the petitioners and then from the land of the panchayat in killa Nos. 4 and 5 of rectangle No.29 in order to link the point X. By this arrangement, the authorities had tried to provide irrigation to the land of both the parties. 6. It was further averred that the petitioner kept mum over a clerical mistake committed by the authorities by presuming killa No. 1, 2 and 3 of rectangle No. 28 to be owned by the petitioners. But later on it was found that they were not owners of the said killa numbers but on the other hand they were owners of killa Nos. 8, 9 and 10 of rectangle No.28 and when this clerical error was brought to the notice of respondent No. 2, he corrected the same by inserting killa Nos. 8, 9 and 10 of rectangle No. 28 in. place of killa Nos. 1, 2 and 3 of rectangle No. 28. With this rectification of the mistake, the order Annexure P-2 was passed which was fully in consonance with the order Annexure P-1 which was an agreed order between the parties. They further stated that no prejudice had been caused to the petitioners by rectification done by the authorities. 7. The State of Haryana did not file any reply. I have heard Mr. Sachin Mittal, Advocate, counsel for the petitioners, Mr. They further stated that no prejudice had been caused to the petitioners by rectification done by the authorities. 7. The State of Haryana did not file any reply. I have heard Mr. Sachin Mittal, Advocate, counsel for the petitioners, Mr. R.M. Singh, Advocate, counsel for respondents No. 4 to 5, Mr. S.S. Brar, DAG (H) for respondents 1 to 3 and carefully gone through the file. 8. It is an admitted fact that the Chief Canal Officer on 4.1.1990 had passed a consenting order. Paragraph 3 and paragraph regarding decision of this order read as under:- "3. The Court suggested an alignment from point A towards North along village boundary and then along square fine of killa Nos. 1, 2 and 3 of rectangle No. 28 and passing through the land of the appellant and then from the land of Panchayat in killa Nos. 4 and 5 of rectangle No. 29 to link the point X in this way the bifurcation will be avoided. Both the parties agreed to this suggestion. 9. Decision:- After hearing the arguments of both the parties, examination of record placed before the Court, I find, since the parties mutually agreed to the suggestion mentioned above, the watercourse ABC-EFXY to sanctioned on compensation base. The width of the water course will be one karam i.e. 5 feet. The appeal is, therefore, accepted and the DCOs decision is modified to the extent as agreed by both the parties. Announced on 4.1.1990 before the parties present in the Court. Sd/- Chief Canal Officer, Haryana. Chandigarh." 10 Later on respondents Rangi Ram etc. submitted an application and on the basis of the application without issuing notice to the petitioners, the Chief Canal Officer passed the following order:- "To rectify the mistake, the water course portion DEF be considered along killa Line 28/8, 9 and 10 through the land of appellant and 26/6, 7 through the land of panchayat instead of 28/1, 2, 3 and 29/4, 5 respectively under Section 56 of the Haryana Canal and Drainage Act 1974." 11. Thus, by effecting the amendment, the Chief Canal Officer, without giving notice to the petitioners and without hearing them had changed the alignment of the water course. It was earlier along killa Nos. 1, 2, 3 of rectangle No. 28 but now the alignment is alongwith killa Nos. 8, 9 and 10 of the rectangle No. 26. Thus, by effecting the amendment, the Chief Canal Officer, without giving notice to the petitioners and without hearing them had changed the alignment of the water course. It was earlier along killa Nos. 1, 2, 3 of rectangle No. 28 but now the alignment is alongwith killa Nos. 8, 9 and 10 of the rectangle No. 26. Certainly by the proposed alignment which had been made at the back of the petitioners, their land is stated to have been bifurcated into four parts. It is against the principle of natural justice because the petitioners have not been heard before making this amendment in the order Annexure P-1. The petitioners have further stated that the water course which is now supposed to be carved out as per order Annexure P-2 is at a very low level and in case it is done, their land will be over flooded with water. Since a reasonable opportunity has not been afforded to the petitioners to put forth their case which is against the principles of natural justice, so, the writ petition is accepted and the order Annexure P-2 being illegal is set aside. Respondents No. 1 to 3 are directed to grant an opportunity of hearing to the petitioners and to decide the matter afresh in presence of the parties in accordance with law. The writ petition is accordingly accepted in the above terms.