Punjab State vs Prem Singh

G.C. Mital, J.

The only point involved to this second appeal is as to whether to decision of Superintending Engineer withdrawing the extra supply of water for the orchard of Prem Singh is in conformity with the provision of rule 12 of the Rules known as Rules for Extra Supply of Canal Water for Gardens and Orchards. Both the Courts below have held that the order is in contravention of provision of rule 12(a) of the Rules.

Shri Sethi appearing for the State of Punjab has raised two points; one that Civil Court has no jurisdiction to entertain the suit in view of bar contained in section 68(7) of the Northern India Canal and Drainage Act, 1873 (hereinafter referred to as the `Act''), and the remedy of Prem Singh was to go up in appeal before the Divisional Canal Officer, against the order of Deputy Collector, as provided in section 68(5) of the Act and if still he was aggrieved, he could go up in revision under section 68(6) before the Superintending Canal Officer, and before the Civil Court the order passed under section 68 of the Act could not be called in question. The other point raised was that the impugned order was not contrary to the provision of Rule 12(a) of the Rules.

Adverting to the first point it is true that issue No. 3 was framed regarding the jurisdiction of Civil Court and decision of this issue went against the State before the trial Court. When the State failed in the trial Court it took the matter in appeal and before the Additional District Judge, the finding of the trial Court on issue No. 3 was not assailed and only finding on issue No. 1 alone was assailed. Hence 1 decline to go into this point. Moreover a look at the impugned order shows that it was passed by the Superintending Engineer, which has been countersigned by the Executive Engineer and the SubDivisional Officer. Section 68 of the Act authorises only the Deputy Collector to pass an order and if anybody is aggrieved then appeal would lie to the Divisional Canal Officer and revision to the Superintending Canal Officer. Once the order is passed by the Superintending Engineer, there is no remedy left with Prem Singh under the Act. On this count also it cannot be said that the case was covered by section 68 of the Act and, therefore bar contained in subsection (7) of section 68 of the Act would not apply. If the case was to be brought under section 68 of the Act then the impugned order would be without jurisdiction because it is not passed by the Deputy Collector.

Adverting to the other point, a reading of Rule 12(a) of the Rules shows that after a six months notice is issued proposing to withdraw extra supply of water and the person who is deriving benefit of the extra supply of the water does not rectify the defect within six months period and if thereafter and before the close of the year a fresh joint report by the Deputy Collector and the District Agricultural Officer is obtained and it is to the effect that the maintenance of the garden is not satisfactory then the order for withdrawal by the competent authority can be passed. In this on 15th June, 1976 (Exhibit P2) notice was served on Prem Singh for removal of defects in the maintenance of garden within six months. It is in June, 1978 that a joint report was made that prem Singh had not maintained the garden satisfactorily. The report had to be submitted within one year from 15th June, 1976. Hence report of June, 1978 could not be made basis for withdrawal of extra supply of water. The order for withdrawal was passed on 18th June, 1980 i.e. two years after the report. May be that by June, 1980 Prem Singh had removed the defects that is why rule 12(a) provides for giving six months notice and then to take action within six months thereafter on a joint report as envisaged therein. For this it is the Government authorities who are to be blamed. The defendant''s order dated June 18, 1980 cannot be said to be in accordance with the provision of Rule 12(a) of the Rules.

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