Jagjit Singh and Others vs Punjab State Tubewell Corporation Ltd. and Others

D.V. Sehgal, J.—The Petitioners who are 11 in number state that for more than 30 years there exists a water course emerging from Rajbaha Sangrur from out let at R D. 91404 L by which the lands of villages Kheri, Kular Khurd are irrigated. They stale that their land are situated at a higher level than that of the watercourse and could not be irrigated by it. According to them, the irrigation by the water Course P.2- ends at a distance of more than two furlongs from the outer limit of village Mohlan where there land is situated. They maintain that they never used canal water for irrigation purpose and no Abiana was ever charged from them. They have made their own arrangement for irrigation by sinking wells ond tubewells and this fact is recorded in the Nehri Girdawri. They are aggrieved by a scheme for bricklining the said water course. They have been made liable to share the expense incurred on its bricklining and their share is sought to be recovered from them,

Besides disowning their liability to pay the bricklining expenses on the ground that they are not the beneficiary from the water course they have further pleaded that the draft scheme for bricklining of the water course is void at it was not prepared by the Divisional Canal Officer as provided u/s 30-A of the Northern India Canal Drai-nage Act. 1873 (for short the Act'') but in fact it was prepared by a Ziledar who had no jursidction to do so. It is further maintained that the Divisional Canal officer, Punjab Tubewells Corporation, Respondent No. 1 while finalising the bricklining scheme did not apply his own mind and wrongly mentioned the area of the Petitioners as being commanded by the said water course and made them liable to pay the costs u/s 30-E of the Act. It is also pleaded that Respondent No. 1 did not follow the mandatory provisions of Section 30-C of the Act and did not call upon the Petitioners to implement the scheme at their own costs. A prayer is, therefore, made for issuance of a writ of Certiorari quashing proceedings for recovery of the costs of bricklining from the Petitioners and for a writ of Mandamus directing the Respondents not to recover the said costs from them.

Written statement has been filed by Respondent No. 1. He has, inter alia, contended that the Petitioner had a statutory right of appeal u/s 30-B (3) of the Act before the Superintending Canal Officer which they have not availed of. They therefore, cannot maintain the present writ petition. It is also maintained that against the demand of recovery of the costs of bricklining the Petitioners have the remedy to file a suit u/s 78 of the Land Revenue Act. On merits it is denied that the Petitioners are not getting benefit of irrigation from the outlet. It is stated that a regular warabandi is sanctioned and the Petitioners are getting irrigation facility for their land from this outlet. To evidence this fact warabandi, Annexure R/1, sanctioned as far back as in the year 1964 has been enclosed. It is further maintained that the scheme was sanctioned by Respondent No. 1 after due application of mind. He simply sought assistance from his subordinates including the Ziledar which in no way invalidates the scheme. The Petitioners are therefore, liable to pay the costs of the bricklining of the watercourse.

After hearing the learned Counsel, I find that there is no merit in this writ petition. As regards the validity of the scheme it has been clearly brought out that the scheme was sanctioned by Respondent No. 1 in accordance with law. The plea of the Petitioners that the scheme was prepared by the Ziledar is not at all tenable. The Ziledar simply renders assistance in preparation of the scheme which was ultimately sanctioned by the Divisional Canal Officer Respondent No. 1. It is now well settled that where the Divisional Canal Officer takes assistance from the subordinate staff while framing a scheme there is no violation of any statutory provisions Preliminary work for preparation of a scheme u/s 30-A is always got done from the subordinate staff It is on the basis of the data so collected that the scheme is finally sanctioned by the Divisional Canal Officer Therefore, no exception can be taken to the scheme so sanctioned by Respondent No 1.

The natural corollary of a valid sanction of the scheme is that a statutory remedy of appeal is provided against it u/s 30-B (3) of the Act before the Superintending Canal Officer. The Petitioners have admittedly not availed of this remedy They, therefore, cannot maintain the present writ petition in this Court.

Even on facts I find the plea of the Petitioners that they have not been getting irrigation facility from the outlet is not correct When reference is made to the warabandi Annexure R/1, it is clear that the land of Garib Singh son of Dasaundha Singh Petitioner No. 5 is irrigated by this outlet. A detail of his field numbers is given in column No. 3 of the warabandi. His total land under irrigation is 170 Kanals 12 Marias. Petitioner No. 6 is son of Petitioner No. 5. Likewise, Petitioner Nos. 8 and 9 are sons of Charan Singh and grand-sons of Petitioner No. 5. The warabandi Annexure R/1, further shows that the land of Jagbir Singh Petitioner No. 4 Raghbir Singh and Chand Singh sons of Jaimal Singh Petitioner Nos. 10 and 11 besides other landowners are also getting irrigation facility from this outlet. Since the detail of the land owned by the remaining Petitioners is not given in the petition, it is not possible to ascertain by reference to the warabandi whether their land is not getting irrigation from the said outlet. At any rate it is a question of fact which cannot be gone into by me in the exercise of my extra ordinary jurisdiction under Article 226 of the Constitution. I am, therefore, of the considered View that this writ petition is without any substance.

Consequently, I dismiss the writ petition but leave the parties to bear their own costs.