30-C. Publication of scheme. – The Divisional Canal Officer shall, as soon as may be publish the particulars  of the scheme, as approved or modified by him under sub-section (2) of Section 30-B or by the Superintending Canal Officer under sub-section 93) of that section as the case may be, in the prescribed manner and call upon the share-holders to implement it at their own cost within the period to be specified therein:

 

           Provided that where the scheme has been rejected under sub-section (2) of Section 30-B the fact that it has been rejected shall also be published in the prescribed manner:

 

           Provided further that when the record of the case has been called by the Superintending Canal Officer. Under sub-section (3) of section 30-B, the Shareholders shall not be called upon to implement the Scheme till the Superintending Canal Officer has finally disposed of the matter.

 

30-D. (1) The Divisional Canal Officer may, either of his own motion or on the application of a shareholder publish in the manner prescribed a notice of his intention to acquire any land required for implementation of the scheme.

 

           (2) Any person interested in the land notified under sub-section (1) may within fifteen days from the publication thereof, apply to the Divisional Canal Officer by petition stating his objections to the proposed acquisition of his rights.

 

           (3) After considering the objections, the Divisional Canal Officer may proceed to take the occupation of the land so required on behalf of the shareholder.

 

           (4) Compensation, to be fixed by the Divisional Canal Officer on the principles set out under Section 23 of the Land Acquisition Act, 1894, shall be payable by the share holders in proportion to the culturable  commanded are under the scheme held by each one of them to the owner or occupier of any land for such acquisition and on failure of payment, the amount shall be recoverable as arrears of land revenue.

 

           (5) A person aggrieved from the order of the Divisional Canal Officer in respect of compensation any prefer an appeal within thirty days of the passing the order to the Collector whose decision shall be final.

 

Synopsis

1.      Scope of Enquiry.

2.      Implementation of Schemes finally sanctioned.

3.      Case compensation.

Commentary

 

1. Scope of enquiry. – The scope of enquiry held by a Collector is wider than the ambit of Court proceedings. The very fact that the order of the Divisional Canal Officer is subject to a right of appeal (Section 30-D(5) also indicates that the Divisional Canal Officer while determining the quantum of compensation payable for the acquired land has virtually to act as a Land Acquisition Court. In case the Divisional Canal Officer is not required to go into the evidence led by a party in support of its claim to compensation, then what for his order is to be subjected to the right of appeal as the appellate Court would not be in a position to make out the basis or the process of reasoning adopted by the Divisional Canal Officer for fixing the quantum of compensation. It is thus clear that the proceeding before the Divisional Canal Officer and Collector are in the nature of judicial proceedings and their orders have to meet the tests which are laid down for legal or lawful orders. The Divisional Canal Officer just cannot act arbitrarily. In the instant case, neither the Divisional Canal Officer nor the appellate authority has cared to discuss the evidence of the petitioners and thus their impugned orders can hardly be stayed as judicial or even quasi-judicial.

 

           Tara Singh and others v. State of Punjab and others, 1985 (1) LLR 134 = 1985 PLJ 501 = 1985 RLR 41.

 

           2. Implementation of Schemes finally sanctioned. – Section is only meant to acquire land to implementation Scheme finally sanctioned.

 

           Ishar Singh v. The State of Punjab, 1970 PLJ 394 = 72 PLR 478.

 

           3. Cash Compensation. – Only cash compensation permissible for acquisition of land.

           Bachan Singh v. The Superintending Canal Officer, 1973 PLJ 47.

 

30-E. – On failure of any shareholder to execute the word within the period specified in the notice under Section 30-C the Divisional Canal Officer may proceed to carry out the work himself and the cost in proportion to the culturable commanded area under the scheme held by them shall be recoverable from the share-holders as arrears of land revenue.

 

30-F.-(1) On execution of the scheme, the Divisional Canal Officer shall, by requisition in writing, direct the shareholders to take over and maintain the watercourse.

 

           (2) Where after taking ever the water-course in terms of the directive issued under sub-section (1) the share holders fail to maintain the same accordingly, the Divisional Canal Officer shall arrange to carry out the necessary repairs at the cost of the shareholders and for that purpose he shall recover in advance an amount to cover the cost of repair tentatively determined by him from the shareholder in proportion to the culturable commanded area held by them under the scheme.

 

           (3) As soon as, after the completion of the repairs carried out under sub-section (2), the Divisional Canal Officer shall work out or cause to be worked out the actual cost of the repairs.

 

           (4) If the actual cost worked out under sub-section (3) exceeds the amount tentatively recovery under sub-section (2). The difference shall be recoverable from the shareholders in the proportion to the culturable commanded are held by them under the scheme and if any balance remains with the Divisional Canal Officer, it shall be refunded to the shareholders in the same proportion.

 

           (5)  Any amount recoverable from the shareholders under this section may be recovered as arrears of land revenue.

 

30-FF. – (1) If a person demolishes, alters enlarges or obstructs a watercourse or a temporary watercourse or causes any damage thereto, any person affected thereby may apply to the Divisional Canal Officer for directing the restoration of the watercourse or the temporary watercourse to its original condition.

 

           (2) On receiving an application under sub-section (1) the Divisional Canal Officer, to restore the watercourse of the temporary watercourse to its original condition within the period specified in the notice served on him under sub section (2) the Divisional Canal Officer may cause the watercourse or the temporary watercourse to be restored to its original condition and recover the cost incurred in respect of such restoration alongwith a penalty not exceeding one thousand rupees as may be imposed by the Divisional Canal Officer from the defaulting person.

 

           (3) If such person fails, to the satisfaction of the Divisional Canal Officer, to restore the watercourse or the temporary watercourse to its original condition within the period specified in the notice served on him under sub-section (2) the Divisional Canal Officer may cause the watercourse or the temporary watercourse to be restored to its original condition and recover the cost incurred in respect of such restoration alongwith a penalty not exceeding one thousand rupees as may be imposed by the Divisional Canal Officer from the defaulting person.

 

           (4) Any person aggrieved by the order of the Divisional Canal Officer, may prefer an appeal within thirty days of the passing of such order to Superintending Canal Officer whose decision on such appeal shall be final.

 

           (5) Any sum which remains unpaid within a period to be specified for this purpose by the Divisional Canal Officer may be recovered by the Collector from the defaulting person as if it were an arrear of land revenue.

 

SYNOPSIS

1.                Point not raised in petition.

2.                Enquiry in terms of sub-section (2).

3.                Delegation of power.

4.                Enquiry conducted by S.D.O.

5.                Water channel not sanctioned.

6.                Failure to comply with notice.

7.                Cost of Restoration.

8.                Another watercourse cannot be provided.

9.                Incomplete case before appellate authority.

10.             Expression “authorised water-course.”

11.             Application before S.D.O. does not lie.

12.             Section whether applies to all types of water-course.

13.             Failure to give opportunity of hearing.

14.             Dismantling of watercourse.

15.             Enquiry conducted through S.D.O.

16.             Jurisdiction to other restoration.

17.             Reconstruction of water-course.

18.             Remedy where injury has already been caused.

19.             Applicability of Section.

20.             Appeal – Absence of proper order.

21.             Alternative arrangement.

22.             Right of Prescription.

Commentary

 

           1. Point not raised in petition – The Superintending Canal Officer in his order has held that the demolished water-course was existence and that there was no other water-course in existence for irrigating the fields of respondent-shareholders. Since the point raised in the petition was never raised before the Superintending Canal Officer was bad on the score that water-course in ques6tion was not of the kind of which the provisions of Section 30-FF of the Act could be attracted.

 

           Brij Lal & Ors. V. State of Punjab, 1982 LLR 510=1982 Sim LJ 423.

 

           2. Enquiry in terms of sub-section (2). – No such fact has been asserted in the petition that the Divisional Canal Officer has not made the enquiry in term of sub-section(2) of Section 30-FF of the Act and the other side had no occasion to reply to this question of fact. Hence the question not being a bare question of law and depends upon first finding the necessary facts, the same cannot be permitted to be raised at the time of arguments.

 

           Brij Lal & Ors. v. State of Punjab, 1982 LLR 510 = 82 Sim LJ 423.

 

           3. Delegation of power. – There is no provision in the Act that the Divisional Canal Officer can delegate his powers to the Ziledar to sign the notice. In fact, in the present case there is no order of the Divisional Canal Officer as contemplated by sub-section (3) of Section 30-FF of the Act. The order about the restoration of Khal with the help of the police and addressed to the Ziledar concerned is signed by Harbans Lal who in those days was posted as Reader to Sub Divisional Canal Officer, Under clause (3) of the said section only the Divisional Canal Officer can pass the order.

 

           Chatru Ram & Ors. v. Surta and Anr., 1982 LR 154 = 82 PLJ 4, (See also 1981(1) LJR 335)

 

           4. Enquiry conducted by S.D.O. – An application under sub-section (1), the Divisional Canal Officer may, after making such enquiry as he may deem fit, require, by a notice in writing, served on the person found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore at his own cost, the watercourse to its original condition within such period as may be specified in the notice. The enquiry conceived of is an enquiry to be conducted by the Divisional Canal Officer himself. Concededly, he did not conduct any such enquiry but resorted to the convenient method of getting it done from the Sub-Divisional Officer and relying on his report issued the impugned notice. Annexure ‘B’. This hardly meets the requirement of sub-section (2) of Section 30-FF.

 

           Zora singh and Anr. V. Superintending Canal Officer, Patiala Circle & Ors., 1982 LLR 433=82 PLJ 240 = 82 RLR 205.

 

           5. Water Channel not sanctioned. – It is the common case of the parties that the water channel which was demolished by the defendants was neither the one sanctioned by law, nor the one sanctioned by agreement between the parties, plaintiffs had acquired any right thereto by way of easement and, thus, to all nor the intents and purposes, it was an unauthorised one. Admittedly, the same was running through the fields belonging to defendants. Under the circumstances if the defendants demolished the same, it could not be successfully argued that the defendants had committed any wrong as to entitle the plaintiffs to claim damages. As a matter of fact, the lower appellate Court wrongly relied upon the judgement of this Court in Kundan Lal v. The Superintending Canal Officer, 1971 Current Law Jurnal 505, which was subsequently overruled by the High Court in Jagar Singh v. Superintending Canal Officer, 1977 Punjab Law  Journal 147. In view of the decision of this Court in Jagar Singh’s case, it could not be successfully argued that the plaintiffs were entitled to any damages because admittedly the watercourse was not a sanctioned one. In this view of the matter, the question of assessing the quantum of damages payable to the plaintiffs becomes irrelevant.

 

           Ram Kumar v. Bhim Singh, 1984 (1) LLR 489 = 1984 PLJ 129.

 

           6. Failure to comply with notice. – Once the notice is issued to a person who fails to comply the same, the Divisional Canal Officer is at liberty either to restore the watercourse or to decline to do so.

 

           Pirthi v. The Superintending Canal Officer, 1970 PLJ 566 = 1970 Cur. LJ 706.

 

           7. Cost of restoration. – Cost of restoration of watercourse can be recovered as arrears of land revenue.

 

           Ram Sarup v. Harphul, Air 1972 Punj. 338 = 73 PLR 1007.

 

           8. Another watercourse cannot be provided . – Divisional Canal Officer cannot provide  another water course or to decline to do so.

 

           Kundan Lal v. The Superintending Canal Officer, 1971 PLJ 340 = 1971 Cur. LJ 505.

           9. Incomplete case before appellate authority. – When the case before the appellate authority was incomplete it should not have been entertained.

 

           Dhan Singh v. The State of Punjab, 1970 PLR 407.

 

           10. Expression ‘authroised watercourse’ – The expression “authorised watercourse” means a watercourse made available under the provisions of the Act all others being unauthorised.

 

           Jagar Singh v. Superintending Canal Officer, 1972 PLJ 147 = 74 PLR.

 

           11. Application before S.D.O. does no lie. – Application under Section 30-FF of the Act for restoration of the watercourse would not lie to the S.D.O. and, secondly, from the bare reading of the application of Sewa Singh, with the written statement of respondent NO. 2, it is clear that the prayer made therein was for the provision of an alternative watercourse and not for restoration.

 

           12. Section whether applies to all type of watercourse. – Argument laboured with little persisting on the behalf of the defendants is that Section 30-FF of the Northern India Canal Officer and Drainage Act applies to all types of water-course and its applications not restricted only to a sanctioned water-course. Reliance is placed on a decision of this Court in Umed Singh’s case but this decision stands over-ruled by a Division Bench of this court in Jagar Singh’s case. In Jagar Singh’s case it was held that Section 30-FF contemplates only three types of water-courses, i.e. (a) sanctioned by law, (b) sanctioned by agreement between the parties, and (c) which have been prescribed by way of easement. It has been further held that if any person takes water through another man’s land, the other man has the right to stop the flow of water through his land thereby committing no offence within the meaning of section 30-FF. It is only when the water is stopped in the case of water-course of the three types already mentioned that Section 30-FF will come into play. Therefore, a watercourse which does not answer the description of the water-course  set out above will surely fall outside the ambit of Section 30-FF. The Division Bench decision of this Court in Jagar Singh’s case fully applies to the facts and circumstances of this case. It is nowhere held by the trial Court that the water-course in question was either sanctioned one or it was on the basis of some agreement between the parties or that the defendants acquired any right of easement to pass water therefrom. In this view of the matter the lower appellate court was right in its conclusion, that the defendants could not take their water through the water course along the boundary line of the land of the plaintiffs and if the latter demolished the said watercourse they were well within their rights to do so and the order of the Canal Department restoring the water-course was without jurisdiction and the Civil Court had the jurisdiction to grant the relief prayed for by the plaintiffs.

 

           Hoshiara v. Lakshmi Narain, 1985 (2) LLR 104 = 1985 LLR = 217.

 

           13. Failure to give opportunity of hearing. – Petitioner did not have the opportunity of hearing and the order was passed ex parte. The same being not est and nullity has to be set aside.

 

           Gurmit Singh and Ors. v. The Superintending Canal Officer & Ors., 1979 LLR 90 = 1979 PLJ 304.

 

           14. Dismantling of water-course. – Dismantling of water-course regarding which warabandi has been sanctioned under Section 68 – Restoration under Section 30-FF can be ordered for such watercourse.

 

           Karam Singh v. Superintending Canal Officer & Ors., 1989 (1) LJR 335 = 88 PLJ 408 = 1989(1) LLR 86.

 

           15. Enquiry conducted through S.D.O. – Enquiry got conducted by D.C.O. through Sub-Divisional Canal Officer for satisfying himself whether a water-course has been demolished – Further hearing given to parties after receipt of report of S.D.C.O. – Order passed held to be in conformity with mandatory provision of sub-section (2) of Section 30-FF.

 

           Karam Singh v. Superintending Canal Officer & Ors., 1989(1) LJ 335. = 1988 PLJ 408 = 1989 (1) LLR 86.

 

           16. Jurisdiction to order restoration. – The order of the Superintending Canal Officer disallowing petitioner’s prayers for the restoration of a water course alleged to have been dismantled by respondent No.2 some time prior to the filing of the application by the petitioner under Section 30-FF. For recording this conclusion, the Superintending Canal Officer has come to a conclusive finding that non of the three conditions which entitle the authorities under the Act to order restoration of the water i.e. watercourse was sanctioned under the relevant provision of Canal Act; (ii) watercourse had been dug at site subsequent to a mutual agreement between the parties and; (iii) watercourse had run for a continuous uninterrupted period of 20 years at least, has been established in this case. It has been ruled by a Divisional Bench of the High Court in Jagar Singh v. Superintending Canal Officer and others, 1972 PLR 315, that unless any of the above noted conditions is established, the authorities under the Act, have no jurisdiction to order the restoration of the watercourse.

 

           Kartar Singh v. Superintending Canal Officer & Anr. 1983 (1) LLR 155 = 1082 PLJ 229.

 

           17. Reconstruction of watercourse. – Demolished water-course can be ordered to reconstructed under Section 30-FF.

 

           Hazura Singh v. The State of Punjab, 1971 PLJ 703.

 

           18. Remedy where injury has already been caused. – Section 30-FF only provides for a remedy where the injury had already been caused.

           Ram Sarup v. Harphul, AIR 1972 Punjab 338 = 73 PLR 1007.

 

           19. Applicability of section . – Section 30-FF of the Act applies to watercourses of all types.

 

           Umed singh v. The State of Haryana, 1970 PLJ 503 = 73 PLR 79.

 

           20. Appeal – Absence of proper order. – There is no proper order under sub-section (3) of Section 30-FF of the Act against which an appeal could be filed. As the whole procedure about the restoration of Khal is illegal, there is no question of appeal.

 

           Chatru Ram and others v. Surta and another, 1982 LLR 154 = 1982 PLJ 4.

 

           21. Alternative arrangement. – The Canal authorities cannot make an excuse of the alternative arrangement made by the aggrieved person for irrigating his land till the decision of his application under Section 30-FF of the Act, for denying him the right to the use of the demolished watercourse and decline restoration thereof.

 

           Phuman Singh v. Superintending Canal Officer and another, 1983 (2) LLR 229 = 1983 PLJ 487 = 1983 RLJ 250 = 83 SLJ 350.

 

           22.  Right of prescription. – It is well settled that only a watercourse being used as a matter of right either under some statute or by agreement or by prescription can be restored. In the present case, the Divisional Canal Officer, and the Superintending Canal Officer have ordered the restoration of the watercourse only on the ground that the existence of the running watercourse, in dispute, for a considerable period in the past is established. However, it has not been found as a fact that the watercourse in dispute was in existence or had been used by the respondents for a period more than 20 years. Without this a right by prescription could not be established.

 

           Phuman Singh v. Superintending Canal Officer and another, 1938 (2) LLR 229 = 1983 PLJ 487 = 1983 RLJ 250 = 83 SLJ 350.

 

           22. Right of prescription. – It is well-settled that only a watercourse being used as a mater of right either under some statute or by agreement or by prescription can be restored. In the present case, the Divisional Canal Officer, and the Superintending Canal Officer have ordered the restoration of the watercourse only on the ground that the existence of the running watercourse, in dispute, for a considerable, period in the past is established. However, it has not been found as a fact that the watercourse is dispute was in existence or had been used by the respondents for a period more than 20 years. Without this a right by prescription could not be established.

 

           Chanan Singh and others v. The Superintending Canal Officer, Amritsar and others, 1983 (2) LLR 137.

 

30-G. Bar of Jurisdiction of the Civil Court – Notwithstanding any thing contained in this Act or any other law for the time being in force no Civil Court shall have jurisdiction to entertain or decide any question  relating to matters falling under Section 30-A to 30-FF.

 

Synopsis

1.      Failure to service notice.

Commentary

 

           1. Failure to service notice. – It is not disputed that no notice was served on the appellant before the additional Nakka was provided vide order, Exhibit P-1. Even if it may be accepted for the sake of argument that the additional Nakka could be provided under the scheme already approved,  still the persons affected have to be heard before doing so. The learned counsel for the respondents, however, urged that the remedy of appeal and revision was open to the appellant which he has not availed of and that the remedy of suit has been specifically barred by Section 30-G of the Northern India Canal and Drainage Act. The provision like the one under Section 30-G does not bar the jurisdiction of the Civil Court when the order is sought to be challenged on the ground of lack of jurisdiction or non-observance of the principles of natural justice. The availability of the remedy of appeal and revision against the impugned order under the Act also does not bar the plaintiff to avail of the remedy of a suit. It was for him either to file an appeal or to challenge the impugned order in the civil court, the same having been passed in violation of the principles of natural justice. 

 

           Sultan v. Haryana State Minor Irrigation Tubewell Corporation, 1987.

 

PART IV

Of the Supply of Water

 

31. In absence of written contract water-supply to the subject to rules. – In the absence of a written contract, or so far as any such contract does not extend, every supply of canal water shall be deemed to be given at the rates and subject to the conditions prescribed by the rules to be made by the State Government.

 

32. Condition as to. – such contracts and rules must be consistent with the following conditions : -

 

           (a) Power to Stop Water Supply. – The Divisional Canal Officer may not stop the supply of water to any water-course or to any person except in the following cases.

 

           (1) Whenever and so long as it is necessary to stop such supply for the purpose of executing any work ordered by competent authority and with the previous sanction of the State Government ;

 

           (2) Whenever and so long as any watercourse is not maintained in such proper customary repair as to prevent the wasteful escape of water therefrom;

 

           (3) within periods fixed from time to time by the Divisional Canal Officer.

 

           (b) Claim to compensation in case of failure or stoppage of supply: - No claim shall be made against the State Government for compensation in respect of loss caused by the failure or stoppage of the water in a canal, by reason of any cause beyond the control of the State Government, or of any repairs, alterations or additions to the canal, or of any measures taken for regulating the proper flow of water therein or for maintaining the established course of irrigation which the Divisional Canal Officer considers necessary; but the person suffering such loss may claim such remission of the ordinary charges payable for the use of the water as is authorised by the State Government ;

 

           (c) Claims on account of interruption from the other causes. – If the supply of water to any land irrigated from a canal be interrupted otherwise than in the manner prescribed in the last preceding clause, the occupier or owner of such land may present a petition for compensation to the Collector for any loss arising from such  interruption, and the Collector may award to the petitioner reasonable compensation for such loss;

 

           (d) Duration of supply. – When the water of a canal is supplied for irrigation of a single crop, the permission to use such water shall be held to continue only until that crop, comes to maturity, and to apply only to that crop  ; but if it be supplied for irrigating two or more crops to be raised on the same land within the year, such permission shall be held to continue for one year from the commencement of the irrigation, and to apply to such crops only as are matured within that year.

 

           (e) Sale or subletting of right to use canal water. – Unless with the permission of the superintending Canal Officer, no person entitled to use the water of any canal, or any work, building or land appertaining to any canal, shall sell or sublet or otherwise transfer his right to such use;

 

           Provided that the former part of this clause shall not apply to the use, by a cultivating tenant of water supplied by the owner of a watercourse for the irrigation of the land held by such tenant :

 

           (f) Transfer, with land, of contracts for water. – But all contracts made between the State Government and the owner or occupier of any immovable hrodeed, as to the supply of canal water to such property, shall be transferable therewith and shall be presumed to have been so transferred whenever a transfer of such property takes place.

 

           (g) No right acquired by user. – No right to the use of the water of a canal shall be or be deemed to have been acquired under the Indian Limitation Act, 1887, Part IV, nor shall the State Government be bound to supply any person with water, except in accordance with the terms of a contract in writing.

 

Synopsis

 

1.      Applicability of Section.

2.      Unauthorised shifting of ‘MOGA’

 

Commentary

 

           1. Applicability of Section. – Section 32 is applicable to cases in which the supply of canal water  is permitted for a single crop.

 

           Sabha Chand v. The State of Haryana, 1971 PLJ 22.

 

           2. Unauthorised shifting of ‘MOGA’. – It was pointed out by the learned counsel for the petitioners that the petitioner were not guilty  of the alleged offence of unauthorisedly shifting the ‘Moga’ because they had duly made an application to the Irrigation Authorities for shifting the ‘MOGA’ much  before the relevant date viz 15.8.79 on which the ‘MOGA’ was found to have been shifted from its earlier location. It was pointed out by the learned counsel for the petitioner that on the said application, the Superintending Engineering, Ferozepur, Irrigation Circle, had ordered the shifting of the said ‘MOGA’ from RD 3900/R to RD 2000/R on 6.8.79 A true copy of the said letter has been attached to the revision petition. The contention of the learned counsel was that the said ‘MOGA’ had been shifted by the Irrigation  Department Officers themselves by implementation of the aforesaid orders passed by the Superintending engineer and this position had been mentioned by the petitioner before the Special Collector also when they had appeared before him on 6.10.81. It is found that these contentions are correct and are fully borne out from the records and the mention of the position made by the Special Collector in his impugned order dated 6.10.81. Since the petitioners had pointed out the factum of their applications to the irrigation Department authorities requesting the shifting of the ‘MOGA’ the Special Collector should have gone into the matter in detail to find out the correctness or otherwise of that claim. He did not do that and this has led to a failure of justice.

 

           Sohan Singh v. State of Punjab, 1985 (2) LLR 125 = 1985 PLJ 325 = 1985 SLJ 207.

 

PART V

Of Water Rates

 

33. Liability when person using unauthorisedly cannot be identified. – If water supplied through a Canal be used in an unauthorised manner, and if the person by whose act or neglect such use has occurred cannot be identified.

 

           The person on whose land such water has flowed, if such land has derived benefit therefrom.

           or if such person cannot be identified, or if such land has not derived benefit therefrom, all the persons chargeable in respect of the water supplied through such Canal.

           shall be liable or jointly liable, as the case  may be, to the charges made for such use.

 

 

Synopsis

1.      Enquiry must be held

2.      Failure to hold detailed and proper enquiry.

3.      Recovery of special charges.

4.      Failure to identify persons using water unauhorisedly.

 

Commentary

 

1. Enquiry must be held. – Before making an imposition under Section 33 fixing the liability,  an enquiry must be held into the matter.

 

Lachman v. The Executive Engineer, ILR (1968) 1 Punjab 176 = 1969 PLJ 90 S.N.

           2. Failure to hold detailed and proper enquiry. – No detailed and proper enquiry was held in this case by the learned Collector or the Irrigation Authority under the provisions of Section 33 of the Act and Rule 33-A(2) of the Rule to identify the persons through whose act or neglect the use of the water from the canal had accrued and the persons on whose land such a water had flowed, resulting in the alleged benefit therefrom. The persons cannot be subjected to the penalty or the special charges either individually or jointly unless there is detailed enquiry and report thereon by the competent authority.  It was necessary in this case to come to a view that it was not possible to identify persons on account of whose neglect, the unauthorised supply of water had been made and the extent of benefit derived by persons who had been held liable for the use of the water. Also, the order of the Collector is based only on the statement of the Ziledar showing that he had not exercised his consideration. Even otherwise also the order of the Collector is very sketohy. In the present case as no detailed and proper enquiry was held as acquired by law, the order of the Collector cannot be sustained.

 

           State of Punjab v. Sadhu Singh & Ors. 1983 (2) LLR 401 = 1983 PLJ 379 = 1983 SLJ 47.

 

           No detailed and proper enquiry has been held by the Irrigation Authorities under the provisions of Section 33 of the Act and Rule 33-A(2) of the Rules to identify the persons with whose act or neglect the use of the water from the canal has occurred and the persons on whose land such a water has flowed, resulting in the alleged benefit therefrom. The persons cannot be subjected to the penalty or the special charges either individually or jointly unless there is detailed enquiry and report thereon by the competent authority. It was necessary in this case to come to view that it was not possible to identify persons on account of whose neglect, the unauthorised supply of water had been made and what benefit had been derived by persons who had been held liable for the use of the water. Also the order of the Special Collector is based only on report of his subordinates showing that he has not exercised his independent judgment in regard to matters under his consideration. In the present case, no such detailed and proper enquiry has been held, and as such the order of the Special Collector Irrigation cannot be sustained.

 

           Rajinder singh v. State of Punjab, 1983 (1) LLR 539 = 1983 PLJ 149.

 

           3. Recovery of Special charges. – The conclusion of the Commissioner is based on an inference that special charges are in the nature of penalty consciously levied for a default or offence. He seems to have clearly overlooked the fact that Section 35 of the Act itself very clearly distinguishes special charges recoverable in addition to penalties implying thereby that the charges are not a penalty imposed as such.

           Punjab State v. Baldev Singh v. 1983(1) LLR 22 = 1983 PLJ 496.

           4. Failure to identify persons using water unauthorisedly. – Section 33 clearly stipulates liability when persons using water unauthorisedly cannot be identified. It lays down that if water supplied through a canal is used in an authorised manner, and if the person by whose act or neglect such use has occurred cannot be identified, the liability for unauthorised use of water will been persons on whose lands such water has flowed, if such land has derived benefit therefrom. In the alternative, if such persons cannot be identified or if such land has not derived benefit therefrom, all the persons chargeable in respect of water supplied through the canal shall be liable or jointly liable to the charges made for such use. It would appear to be the scheme of the Act that if the person(s) making unauthorised use of water can be identified they shall be liable to penalty. Section 35, however, makes clear that the charges recoverable for the use of water would be in addition to the penalties. A clear district has, therefore, been made between the penalties levied under the Act and charges recovered on account of unauthorised use of water where persons using such water cannot be identified. It is obvious from the facts of this case that the Sub Divisional officer (Canal) returned clear finding that the fields of the respondent were irrigated in an unauthorised manner. Special charges are levied for the benefit which accrued to the land and in such cases the liability has been cast on the owner of the land as such and not a particular person. The fact that in the course of the proceedings the ownership of the land changed should not, therefore, cause any prejudice to the charges recoverable on account of unauthorised use of water on the land in question. As successor-in-interest of Santa Singh, the respondent Baldev Singh, and also other owner of the land benefiting from the unauthorised irrigation are equally liable to the special charges which have become leviable on the land.

 

           Punjab State v. Baldev Singh, 1983 (1) LLR 22 = 1983 PLJ 496.

 

34. Liability when water runs to waste. – If water supplied through a Canal be suffered to run to waste, and if, the persons through whose act or neglect such water was suffered to run to waste cannot be discovered, all the persons chargeable in respect of the water supplied through such canal shall be jointly liable for the charges made in respect of the water so wasted.

 

Synopsis

1.      persons responsible for waste of water.

 

Commentary.

 

           1. Persons responsible for waste of water. – Section 34 imposes liability on all persons who are driving water where it is not possible to locate persons responsible for waste of water. A combined reading of these sections shows that if water or a watercourse is used in an unauthorised manner or is allowed to run to waste, all persons who derive water supplies from the course can be made jointly liable for the charges for the water so wasted, and the penalties can also be imposed upon them on account of the wastage of water. From the language of section 34 it is clear that the matter has not been left to the subjective satisfaction of the Divisional Canal Officer who is the authority empowered to take action under the two provisions. He is required to conduct an enquiry.  The enquiry can be made from any source which appears to the authority appropriate. It is not obligatory to confine the enquiry to the persons who are ultimately going to be affected. But the principles of natural justice require that the result of the enquiry must be disclosed to the persons who are going to be saddled with the liability and they should be allowed an opportunity to rebut the result of the enquiry must be disclosed to the persons who are going to be saddled with the liability and they should be allowed an opportunity to rebut the result of the enquiry and to adduce such evidence as they may like to support their case. The functions assigned to the authorities named in sections 34 and 35 are of a quasi-judicial nature and the order that it passes is an order of assessment of water charges and penalty. Such an order cannot be passed upon any evidence or any fact without first pointing out the same to the assessee and giving him reasonable opportunity of meeting the case which is ultimately made against him.

 

           Nikka Singh v. State of Punjab, 198991) LLR 185.

 

 

Contents   Next