Asa Nand vs Chief Canal Officer, Haryana

G.C. Mital, J.

Chhankada Ram filed an application under section 17 of the Haryana Canal and Drainage Act, 1974 (hereinafter called ''the Act''), before the Divisional Canal Officer for sanctioning a watercourse ''AA'' through the land of Asa Nand petitioner. The concerned officer prepared a scheme as required by section 17 of the Act and the same was published in accordance with law for inviting objections and suggestions. Asa Nand appeared and stated that Chhankada Ram applicant and other shareholders could irrigate their land from outlet RD 375R Jansui distributory and that watercourse had been left for their irrigation during the consolidation of holdings in Killa Nos. 5, 25 and 17 shown as LMN. As regards the watercourse ''AA'' it was pleaded that it was a temporary watercourse for his use and was not a sanctioned watercourse. The Divisional Canal Officer inspected the spot and rejected the scheme vide order dated 31st October, 1983 (Annexure P. 1). The applicant took the matter in appeal and the Superintending Canal Officer dismissed the appeal vide order dated 25th May, 1984 (Annexure P. 2). The applicant took the matter in revision before the Chief Canal Officer. The Chief Canal Officer vide order dated 7th May 1985 (Annexure P. 3) found that the watercourse LMN which was provided in the consolidation was not existing at the site and, therefore considered it just and proper that underground pipe line about 25 ft in length along alignment AA as shown in Khakha plan be placed at the cost of the applicant so as to allow irrigation to him temporarily. He also proposed that since the running watercourse was a temporary watercourse, as scheme of watercourse of chunk of outlet RD 375/R Jansui distributory be framed on technical basis and sanctioned under the relevant provisions of the Act in the interest of the irrigation of the land of all the shareholders of the outlet instead of dealing with the problem in piecemeal. Asa Nand has come to this Court in this writ petition under Article 226 of the Constitution of India against the aforesaid order of the Chief Canal Officer.

The main argument of the writ petitioner is that there is no provision for providing a temporary watercourse and that too through an underground pipe. After considering the matter I do not find any merit in this contention. It is the petitioner''s own case as pleaded in para 2 of the writ petition that an application for sanctioning of watercourse ''AA'' was made under section 17 of the Act and the scheme was prepared under that provision and was published in accordance with law and after inviting objections and suggestion, the matter was considered. The authorities under the statute had the jurisdiction under section 17(1((a) of the Act to sanction a scheme for construction, alteration, extension and alignment of any watercourse, or realignment of any existing watercourse. While a permanent watercourse can be provided, it would include the power to frame a scheme for providing a temporary watercourse till the scheme for providing watercourse to all the rightholders of outlet RD 375/R was framed on technical basis. There is also no bar in providing the underground watercourse if exigency so requires. Hence, there is no merit in this contention.

Then it was argued by the learned counsel for the writ petitioner that assuming that a temporary watercourse could be sanctioned by providing an underground pipe, the Chief Canal Officer has not sanctioned such a watercourse. In nutshell the argument is that the words ''sanctioned'' is not mentioned in the order. It would be wrong way of understanding the order of the Chief Canal Officer. As noticed earlier, the scheme was prepared and published, the objections were invited either for sanctioning or not sanctioning the scheme for providing watercourse ''AA''. While the two authorities below did not allow watercourse through AA, the Chief Canal Officer has allowed the watercourse through AA and this would mean that he has sanctioned the scheme which was prepared and published. Therefore, omission of word ''sanctioned'' is hardly relevant. Hence, this argument also fails.

It was then argued that the scheme cannot be implemented unless procedure prescribed in section 21 of the Act is followed i.e. by acquiring the land belonging to the writ petitioner, through which the underground pipe has to be laid down. In this behalf a vague observation is made in ground 5(ii) of the writ petition for quashing the order of the Chief Canal Officer on this ground. As already said the order of the Chief Canal Officer cannot be quashed on this ground. As and when the pipe is sought to be laid down without acquisition of land, in case acquisition of land is necessary, it will be open to the writ petitioner to raise the objection but at the present moment on this objection order Annexure P. 3 cannot be quashed.

Before parting I wish to observe that the jurisdiction of this Court under Article 226 of the Constitution of India is extraordinary and unless the order is found to be wholly without jurisdiction, this Court is not bound to interfere till manifest injustice is shown. The order of the Chief Canal Officer is not without jurisdiction. For the sake of argument if it is assumed that the order is illegal, I find that the order has provided the water to the landholders who had not been provided with a watercourse and in this case their land is 25 ft away from the watercourse from which the writ petitioner is getting water for his land. Underground pipe through the land of the writ petitioner has been ordered to be laid to cover the distance of 25 ft so that his upper surface remained under cultivation without any loss to him and in this manner the impugned order saves the interest of the writ petitioner while providing water to the landholders who had no source of irrigation. Hence, I find that it is not a fit case for interference in writ jurisdiction.

For the reasons recorded above, this writ petition is dismissed but with no order as to costs.