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2011 DIGILAW 156 (PNJ)

Mohan Lal v. Superintending Canal Officer

2011-01-13

AJAI LAMBA

body2011
JUDGMENT Ajai Lamba, J. (Oral) - This civil writ petition filed on behalf of Mohan Lal S/o Chatra Ram challenges the orders passed by Deputy Collector, Rori Water Services Division, Sirsa and order passed by the appellate authority viz. Divisional Canal Officer. 2. The short argument of learned counsel for the petitioner is that the orders are without jurisdiction. 3. It has been contended that the private respondent filed an application only under Section 55 of the Haryana Canal and Drainage Act, 1974 (for short The Act) for change of Warabandi, to place the wari/turn of the respondent after the wari/turn of the petitioner. On facts, learned counsel for the petitioner has contended that since the land of the petitioner falls after the land of the respondent in context of the khal/watercourse, the wari/turn of the respondent could not have been fixed after the wari/turn of water of the petitioner, considering the fact that alongwith the water course lies the land of the respondent and thereafter the land of the petitioner. The person whose land lies next to the watercourse/khal is required to draw water first. 4. On the other count, learned counsel has contended that an application under Section 55 of the Act has also been treated as an application under Section 17 of the said Act. Even a new naka has been provided to irrigate the land of the respondent. 5. Learned counsel for the private respondent has not been able to dispute that an application had been filed by the said respondent only under Section 55 of the Act for changing of wari. Impact and effect of the order, however, is that alongwith the change in wari, even an additional naka has been provided to irrigate the fields of the respondent. 6. Provisions of Section 17 of the Act provide as under :- "71. Preparation of draft scheme - Notwithstanding anything contained to the contrary in this Act but subject to the rules prescribed, Divisional Canal Officer may, on his own motion or on the application of a shareholder, prepared a draft scheme to provide for all or any of the matters, namely :- (a) The construction, alteration, extension and alignment of any watercourse or realignment of any existing watercourse. (b) allotment by any new areas to a watercourse or an outlet or re- allotment of the area served by one watercourse to another or from one outlet to another or for exclusion of an area, from an outlet or a watercourse. (c) construction of a new outlet, shifting or modification of an existing outlet." 7. As against this, the provisions of Section 55 of the Act inhere that a Deputy Collector may pass an order as to the use or distribution of water from a water course amongst the persons in any estate or a group of estates or in any holding or group of holdings in such estate or estates. 8. Application had been filed only under Section 55 of the Act by the respondent, however, even an additional naka has been provided which could be done only under Section 17 of the Act, after following the procedure provided under the said provision. 9. The procedure provided under Section 17 of the Act is different vis-a-vis the procedure provided under Section 55 of the Act. Since no such procedure as provided under provisions of Section 17 has been followed, in my considered opinion, the impugned orders are without jurisdiction. 10. This petition is accordingly allowed. 11. Orders Annexures P-2 and P-3 are hereby quashed. The petitioner and the private respondent are directed to appear before Deputy Collector Rori Water Services Division, Sirsa on 27.01.2011, who shall take into account the prayer of the respondent under Section 55 of the Act and pass fresh orders after fresh adjudication, while taking into account the relevant parameters. .