35. Charges recoverable in addition to penalties. – (1) All charges for the unauthorised use for waste of water may be recover in addition to any penalties incurred on account of such use or waste. 

 

           (2) All questions, including questions pending for disposal on the commencement of the Northern India Canal and Drainage (Punjab) Amendment Act, 1965, under section 33 or section 34 shall be decided by the Collector.

 

           (3) An appeal shall lie to the Commissioner against the decision of the Collector under sub-section (2) within a period of thirty days from the date of decision.

 

           (4) The Financial Commissioner may suo motu at any time or on an application made in this behalf by an aggrieved person within a period of thirty days from the date of the order, revise an order passed in appeal under sub-section (3).

 

Synopsis

 

1.      Suo motu powers of Revision.

2.      Imposing special rate.

3.      Appealable order.

 

Commentary

 

           1. Suo motu powers of Revision. – Section 35(4) nowhere lays down that the Financial Commissioner’s powers of suo motu revision are limited to cases where the orders of lower officers have to be revised in the interests of the State. The only reasonable interpretation of Section 34(4) of the Act is that where an aggrieved person files a revision petition after the expiry of the prescribed period of 30 days seeking relief on the ground that the Collector or the Commissioner had not properly assessed evidence or had imposed a heavier tawan than the nature of the case called for then such a revision petition should very properly be dismissed out of hand as time-barred. But in case the revision petition shows that the Collector or the Commissioner have acted contrary to law or beyond their competence then there is nothing to prevent the Financial Commissioner from taking suo motu notice of the illegalities or irregularities to which his attention may have been drawn by such an otherwise time-barred revision petition. In the light of the foregoing, do not consider it advisable to dismiss the present 12 revision petitions as time barred because the Financial Commissioner finds from the orders passed by the collector and the Commissioner that while imposing tawan under Section 33 (though the Collector has wrongly made a reference to Section 31-33) of the Act read with Rule 32 of the Rules made thereunder the have not complied with the statutory provisions of Section 33, which was obligatory before the special rate could be imposed. The Collector has imposed a special rate in all these cases on the ground that though the petitioners had denied having made the cut yet they had accepted the fact of the unauthorised use of water. The petitioners have both in appeal to the commissioner and in revision before the Financial Commissioner denied having conceded before the Collector that they had made unauthorised use of water. But it is necessary to go into this point becuase for the disposal of these revision petitions it is sufficient to notice that the only conclusion the Collector reached in each case before imposing a special rate was that the petitioner had availed of the unauthorised use of water or had derived benefit from the unauthorised use of water.

 

           Sarupa v. State of Haryana, 1976 PLJ 233.

 

           2. Imposing special rate. – With regard to suo motu notice to be taken by the Financial Commissioner in cases of unauthorised use of water it is quite clear that by and large such suo motu notice would be taken by him only when a party brings to his notice any illegality that may have been committed in the process of imposing special rate. If the mere fact that a party had filed a revision petition were to bar the Financial Commissioner from taking suo motu notice of the illegalities committed in the process of imposing tawan then his power would become extremely circumscribed because it is not conceivable how unless a party files a revision petition before him or makes representation any cases of illegality or impropriety calling for intervention in revision would come to his notice. The analogy given by the Deputy Advocate General regarding the interpretation of the Contempt of Courts At by the High Court would not apply because whereas case of contempt of courts could come to the notice of the High Court without the intervention of a party, yet no unauthorised use of water is likely to occur in the Financial Commissioner’s presence enabling him to take suo motu notice. He would be able to take suo motu notice only on application or representation made to him.

 

           Sarupa v.State of Haryana, 1976 PLJ 233.

 

           3. Appealable order. – All matter decided by the Collector under section 34 are appealable under Section 35(2) of Act. This presupposes that the question mentioned in Section 34 has to be decided after affording a reasonable opportunity of hearing to the aggrieved party, and a proper order has to be passed which will be the subject matter of the appeal before the Commissioner; and revision before the Financial Commissioner, as envisaged by Section 35(3) and (4) respectively.

 

           Nikka Singh v. State of Punjab, 1989 (1) LLR 185.

 

36. Charge on occupier for water how determined. – The rates to be charged for the canal water supplied for purposes of irrigation to the occupiers of land shall be determined by the rules to be made by the State Government and such occupier as accept the water shall pay for it accordingly.

           Occupiers rate. – A rate so charged shall be called the “occupiers’ rate.”

 

           The rules herein before referred to may prescribe and determine what persons or classes of persons are to be deemed to be occupiers for the purpose of this section, and may also determine the several liabilities, in respect of the payment of the occupier’s rate of tenants and of persons to whom tenants may have sublet their lands or of proprietors and of persons to whom proprietors may have let the lands held by them in cultivating occupancy.

 

37. “Owner’s rate”. – In addition to the occupier’s rate, a rate to be called the “owner’s rate may be imposed, according to rules to be made by the State Government on the owners of canal-irrigated lands, in respect of be benefit which they derive from such irrigation.

 

38. Amount of owner’s rate. – The owner’s rate shall not exceed the sum which under the rules for the time being in force for the assessment of land revenue might be assessed on such land. On account of the increase in the annual value or produce thereof caused by the canal irrigation. And for the purpose of this section only, land which is permanently settled or held free of revenue shall be considered as though it were temporarily settled and liable to payment of revenue.

 

39. Owner’s rate when not chargeable. – No owner’s rate shall be chargeable either on the owner or occupier of the land temporarily assessed to pay land revenue at irrigation rates, during the currency of such assessment.

 

40 to 43. – Repealed by The Punjab Tenancy Act, 1887.

 

44. Water rate by whom payable when charged on land held by several owners. – where a water rate is charged on land held by several joint owners, it shall be payable by the manager or other person who receives the rents or profits of such land, and may be deducted by him from the rents profits before division or may be recovered by him from the persons liable to such rate in the manner customary in the recovery of other charges on such rents or profits.

 

Recovery of Charges

 

45. Certified dues recoverable as land revenue. – And sum lawfully due, under this part and certified by the Divisional Canal Officer to be so due, which remains unpaid after the day on which it becomes due, shall be recoverable by the Collector from the person liable for the same as if it were an arrear of land revenue.

 

Synopsis

1.      Non-compliance of Act and Rules.

 

Commentary

 

           1. Non-compliance of Act and Rules – So far as the non-compliance of the Act and the Rules is concerned, this matter is set at rest by Full bench decision of the High Court in Harbans Singh and others v. The State of Punjab and others, 1965 PLR 707, wherein their Lordships of Full Bench have held that it is not incumbent on the State Government to draw up a scheme under Section 57 of the Northern India Canal and Drainage Act. The facts of the present case are identical. Hence, High Court does not find any merit in the argument of Mr. Aggarwal in view of the law as laid down in this Full Bench authority. In Full bench case, the petitioners were right holders and their land was also affected but in the present case as is clear from the return filed by the authorities the land of the petitioners has not been affected at all. Regarding the undertaking given on June 6, 1978 the authorities have explained as to why they could not comply with the undertaking within the stipulated period.

 

           Jai Singh and others v. State of Punjab and others, 1979 LLR 81 = 1979 PLJ 155.

 

46. Power to contract for collection of canal dues. – The Divisional Canal Officer or the Collector may enter into an agreement with any person for the collection and payment to the State Government by such person of any sum payable under this Act by the third party.

 

           When such agreement has been made, such person may recover such sum by suit as though it were a debt due to him, or an arrear of rent due to him on account of land, work or building in respect of which such sum is payable, or for or in which the canal water shall have been supplied or used.

 

           If such person makes defaults in the payment of any sum collected by him under this section, such sum may be recovered from him by the Collector under Section 45 : and, if such sum or any part of it be still due by the said third party, the sum or part so due may be recovered in like manner by the Collector from such third party.

 

47. Lambardars may be required to collect canal dues. – The Collector may require the lambardar or person under engagement to pay the land revenue of any estate to collect and pay any sums payable under this Act by a third party, in respect of any land or water in such estate.

 

           Such sums shall be recovered by the Collector as if they were arrears of land revenue due in respect of the defaulters share in such estate ;

 

           and for the purpose of collecting such sums from the subordinate zamindars, raiyats, tenant or sub-tenants, such lambardar or person may exercise the powers, and shall be subject to the rules laid down in the law for the time being in force, in respect to the collection by him of the rents of land or of shares of land revenue.

 

           The State Government shall provide –

(a)   for remunerating persons collecting sums under this section ; or

(b)   for indemnifying them against expenses property incurred by them in such collection ; or

(c)   for both such purpose.

 

48. Fines excluded from Sections 45,46, 47 – Nothing in sections 45, 46 or 47 applies to fines.

 

PART VI

Of Canal Navigation

 

49. Detaining of vessel violating rules. – Any vessel entering or navigating any canal contrary to the rules made in that behalf by the State Government, or so as to cause danger to the canal or the other vassels therein, may be removed or detained or both removed and detained by the Divisional Canal Officer or by any other person duly authorised in this behalf.

 

           Liability of owners of vessels causing damage. – The owner of any vessel causing damage to a canal, or removed or detained under this section, shall be liable to pay to the State Government such sum as the Divisional Canal Officer with the approval of the Superintending Canal Officer determines to be necessary to defray the expenses of repairing such damage, or of such removal or detention, as the case may be.

 

50. Recovery of fines for offences in navigating canals. – Any fine imposed under this Act upon the owner of any vessels, or the servant or agent of such owner or other person in charge of any vessel, for any offence in respect of the navigation of such vessel, may be recovered either in the manner prescribed by the Code of Criminal Procedure or if the Magistrate imposing the fine so directs as though it were a charge due in respect of such vessel.

 

51. Power to seize and detain vessel on failure to pay charges. – If any charge due under the provisions of this Part in respect of any vessel is not paid on demand to the person authorized to collect the same, the Divisional Canal Officer may seize and detain such vessel and the furniture there of until the charge so due, together with all expense and additional charges arising from such seizure and detention is paid in full.

 

52. Power to seize cargo or goods, if charges due thereon not are paid. – If any charge due under the provisions of this Part in respect of any cargo or goods carried in a Government vessel on a canal, or stored on or in lands or warehouses occupied for the purpose of a canal, is not paid on demand to the person authorised to collect the same, the Divisional Canal Officer may seize such cargo or goods and detain them until the charge so due, together with all expenses and additional charges arising from such seizure and detention, is paid in full.

 

53. Procedure for recovery of such charges after seizure. – Within a reasonable time after any seizure under section 51 or section 52, the said Canal Officer shall give notice to the owner or person in charge of the property seized that it, or such portion of it as may be necessary, will, on a day to be named in the notice, but not sooner than fifteen days from the date of the notice, be sold in satisfaction of the claim on account of which such property was seized unless the claim be discharged before the day so named.

 

           And if such claim be not so discharged, the said Canal Officer may, on such day sell the property seized, or such part thereof as may be necessary to yield the amount due together with the expenses of such seizure and sale;

 

           Provided that no greater part of the furniture of any vessel or of any cargo or goods shall be so sold than shall, as nearly as may be suffice to cover the amount due in respect of such vessel, cargo or goods. The residue of such furniture, cargo or goods, and of the proceeds of the sale, shall be made over to the owner to person in charge of the property seized.

 

54. Procedure in respect f vessels abandoned and goods unclaimed. – If any vessel be found abandoned in a canal or any cargo or goods carried in a Government vessel on a canal, or stored on or in lands or warehouses occupied for the purpose of a canal, be left unclaimed for a period of two months, the Divisional Canal Officer may take possession of the same.

 

           The Officer so taking possession may publish a notice that if such vessel and its contents or such cargo or goods are not claimed previously to a day to be named in the notice not sooner than thirty days from the date of such notice, he will sell the same, and if such vessel, contents cargo or goods be not so claimed, he may, at any time after the day named in the notice, proceed to sell the same.

 

           Disposal of proceeds of sale. – The said vessel and its contents and the said cargo or goods if unsold, or, if a sale has taken place, the proceeds of the sale after paying all tolls, charges and expenses incurred by the Divisional Canal Officer on account of the taking possession and sale, shall be made over to the owner of the same, when his ownership is established to the satisfaction o the Divisional Canal Officer.

 

           If the Divisional Canal Officer is doubtful to whom such property or proceeds should be made over, he may direct the property to be sold as aforesaid, and the proceeds to be paid into the district treasury, thereto be held until the right thereto be decided by a court of competent jurisdiction.

 

PART VII

Of Drainage

 

55. Power to prohibit obstructions or order their removal – Whenever it appears to the State Government that injury to any land or the public health or public convenience has arisen or may arise from the obstruction of any river, stream or drainage channel, such State Government may, by notification published in the Official Gazette prohibit, within limits to be defined in such notification, the formation of any obstruction or may, within such limits, order the removal or other modification of such obstruction.

 

           Thereupon so much of the said river, stream, or drainage channel as is comprised within such limits, shall be held to be drainage get work as defined in section 3.

 

56. Power to remove obstructions after prohibition. – The Divisional Canal Officer, or other person authorised by the State Government in that behalf, may , after such publication issue an order to the person causing or having control over any such obstruction to remove or modify the same within a time to be fixed in the order.

 

           If, within the time so fixed, such person does not comply with the order, the said, Canal Officer may himself remove or modify the obstruction; and if the person to whom the order was issued does not, when called upon, pay the expenses involved in such removal or modification, such expenses shall be recoverable by the Collector from him or his representative in interest as an arrear of land revenue.

 

57. Preparation of scheme for works of improvement. – Whenever it appears to the State Government that any drainage works are necessary or the improvement of any lands, or for the proper cultivation or irrigation thereof.

           Or that protection from floods or other accumulations of water, or from erosion by a river, is required for any lands ;

 

           The State Government may cause a scheme for such drainage works to be drawn up and published, together with an estimate of its cost and a statement of the proportion of such cost which the State Government proposes to defray, and a schedule of the lands which it is proposed to make chargeable in respect of the scheme.

 

Synopsis

 

1.      Ownership cannot be disturbed except under authority of law.

2.      Scheme need not be drawn up

3.      Application  of mind.

4.      Publication of Scheme.

5.      Applicability of Section.

 

Commentary

 

           1. Ownership cannot be disturbed except under authority of law. – One of the object of the Society was to provide facilities for drainage works. By majority vote, the Ex-servicemen had resolved to dig the drain in question which was meant for draining out flood- water and was for the benefit of all the members of the Society. In this situation, it was argued that there was no legal requirement for any consent of the petitioners being obtained or for the acquisition of the land required for the drain, to confer the necessary authority upon the respondents for taking this drain through the fields of the petitioners. This is indeed an untenable stand. When the petitioners have been shown to be owners of land they are legally entitled to remain in peaceful possession thereof. Neither their possession nor their ownership over any part of this land can be interfered with except under authority of law.

 

           Sant Singh v. Deputy Commissioner, Kapurthala, 1988 PLJ 213.

 

           2. Scheme need not be drawn. – State Government need not drawn up a scheme under Section 57.

 

           Harbans Singh v. The State of Punjab, AIR 1965 Punjab 356 = 1965 Cr. LJ 472 = 67 PLR 707.

 

           3. Application of mind. – Chief Engineer alone must apply his mind to the facts of a particular case and make the necessary order with regard to the alignment.

           Chanan Singh v. The State of Punjab, 1963 Cur. LJ 277 = 1965 PLR 732.

 

           4. Publication of Scheme. – State Government bound to frame and publish suitable scheme for requisite works.

           Ram Chander v. State of Haryana, ILR (1968) 1 Punjab 234 = 1966-68 PLR Supp. 672.

 

           5. Applicability of Section. – Section 57 applies where the Government wishes to execute some drainage works and the entire cost or a part of it is intended to be recovered from the owners of the land who are benefited from those works.

           Bawa Singh v. Executive Engineer Jullundur, 1969  PLJ 482.

 

57-A. The provisions contained in Sections 30-A to 30-G shall apply to field Drains as well.

 

58. Power of persons employed on such scheme. – The persons authorised by the State Government to draw up such scheme may exercise all or any of the powers conferred on the Canal Officers by section 14.

 

59. Rate on lands benefited by works. – (1) The proportion of te cost other than that which is to be defrayed by Government, in respect of such scheme, may be charged from the owners of all lands made chargeable under Section 57 in accordance with rules made by the State Government in this behalf.

 

           (2) An owner shall be competent to contribute towards the charges payable by him either wholly or in part in terms of land, labour or cash in the manner prescribed by rules made in this behalf.

 

60. Recovery of rate. – Any sum certified by the Divisional Canal Officer to be due under the last preceding section  and which remains unpaid after the expiry of the period during which it was payable, shall be recoverable from the owner liable for the same as if it were an arrear of land revenue.

 

61. Disposal of claims to compensation. – Whenever, in pursuance of a notification made under Section 55, any obstruction is removed or modified.

           Or whenever any drainage work is carried out under Section 57.

           All claims for compensation on account of any loss consequent on the removal or modification of the said obstruction, or the construction of such work, may be made before the Collector, and he shall deal with the same in the manner provided Section 10.

 

62. Limitation of such claims. – No such claim shall be entertained after the expiration of one year from the occurrence of the loss complained of unless the Collector is satisfied that the claimant had sufficient cause for not making te claim with such period.

 

 

Synopsis

 

1.      Words “in the interest of better Irrigation”.

 

Commentary

 

           1. Words “in the interest of better Irrigation”. -  The Superintending Canal Officer has set aside the order of the Divisional Canal Officer saying that he is restoring the order of the Deputy Collector “in the interest of better irrigation”. According to the learned counsel, this order of the Superintending Canal Officer is totally a non-speaking order as he has not indicated as to what sort of enquiry had been held by the Deputy Collector or before ordering the change in the Warabandi and on that account to order deserves to be set aside.

          

           Bula Ram v. The Superintending Canal Officer, Ferozepur, 1985 (1) LLR 39 = 1985 PLJ 205 = 1985 RLR 256.

 

PART VIII

Of obtaining Labour for Canals and Drainage Work

 

Section 63 to 66 [Omitted].

 

PART IX

Of  Jurisdiction

 

67. Jurisdiction under this Act of Civil Court. – Except where herein otherwise provided, all claims against the State Government in respect of anything done under this Act may be tried by the Civil Courts but no such Court shall in any case pass an order as to the supply of canal water to any crop sown or growing at the time of such order.

 

68. Power of Deputy Collector to order use or distribution of water:- (1) The Deputy Collector may, if in his opinion it is necessary so to do, pass an order as to the use or distribution of water from a watercourse amongst persons in any estate or a group of estates or in any holding or group of holdings in such estate or estates :

 

           Provided that no such order shall be passed by the Deputy Collector without making an inquiry into the matter and without giving a notice, to all the persons interested that, on a day to be named in such notice, he shall proceed to inquire into the said matter.

 

           (2) Whenever a difference arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a watercourse, any such person may apply in writing to the Deputy Collector stating the matter in dispute.

 

           (3) On the receipt of an application under sub-section (2), the Deputy Collector shall give notice to the other persons interested that on a day to be named in such notice, he shall proceed to inquire into the said matter and after the enquiry he shall pass an order thereon.

 

           (4) An order passed under sub-section (1) or sub-section (3) as to the use or distribution of water for any crop sown or growing at the time when such order is made or with regard to the construction or maintenance of water course shall subject to an order passed on appeal or revision under sub-section (5) and (6), be final.

 

           (5) An appeal shall lie to the Divisional Canal Officer against an order referred to in sub-section (4) within a period of thirty days from the date of such order.

 

           (6) The Superintending Canal Officer, within, whose jurisdiction the watercourse is situated, may, suo motu on or an application made in this behalf by an aggrieved person, revise an order passed in appeal by a Divisional Canal Officer under sub-section (5).

 

           Provided that no such application shall lie unless it is made within a period of thirty days from the date of such order.

 

           (7) No order passed under this section shall be liable to be called in question in any civil court.

 

Synopsis

1.      Interest of Irrigation.

2.      Jurisdiction of Civil Court.

3.      Speaking orders to be passed.

4.      Suo Motu Revision.

5.      Changes in warabandi.

6.      Order passed without jurisdiction.

7.      Construction of new water-course.

8.      Agreed order.

9.      Order of warabandi.

10.  Revisional Authority.

11.  Culturable commendable area.

12.  Realignment of watercourse.

13.  Construction of watercourse.

14.  Application of Judicial mind.

15.  Warabandi sanctioned in accordance with procedure.

16.  No error apparent in the Judgement.

17.  Change of Warabandi.

18.  Aggrieved party.

19.  Cryptic order.

20.  Watercourse could not be allowed to be constructed in proceeding under Section 68.

 

Commentary

 

           1. Interest of Irrigation. – As per the earlier Warabandi, the water-course in question used to irrigate the land of respondents Nos. 1 to 9 first, thereafter land of the petitioners and then that of respondent No 10. According to the presently impugned alternation, the order of irrigation has been changed. I.e. the petitioner’s land would be irrigated first, then Shankar Devi’s (respondents 1 to 9) land and then that of respondent No. 10. This, as per the order, has been done in the interest of better irrigation. How does it improve or betters the irrigation has nowhere been stated in the order. Thus the order on the face of it is cryptic and discloses no reason in support of the conclusion recorded therein. As per the site plan, Annexure ‘A’, the High Court funds that if one has to go with the flow of the water in the watercourse, land of Shankar Devi (respondents Nos. to 9) comes first, then comes the land of the petitioners and land of Hukum Singh, respondent No. 10 lives away from the watercourse at the book of the land of Shankar Devi. How it serves the interest of irrigation if the petitioners are made to take their Wari first, is not clear.

           Khairu Ram & Ors v. Smt Shankar Devi & Ors. 1983(2) LLR 336 = 1983 PLJ 362 = 1983 SLJ 502.

 

           2. Jurisdiction of Civil Court. – Where watercourse is claimed to be private property of parties, the Civil Court has jurisdiction to decide the issue.

           Lilu Ram v. Manohar, 1973 PLJ 524.

 

           3. Speaking order to be passed. – Superintending Canal Officer to pass speaking order.

           Chand Singh v. Superintending Canal Officer, Hissar, 1973 PLJ 652.

 

           4. Suo motu Revision. – The Superintending Canal Officer can suo motu or on an application made in that behalf by an aggrieved person revise an order passed in appeal by a Divisional Canal Officer under sub-section (v) of Section 68.

           Kanhiya Lal v. Superintending Canal Officer, 1969 Cur. LJ 394=71 PLR 580.

 

           5. Changes in Warabandi. – Superintending Canal Officer cannot make charges in the warabandi of the shareholders.

           Sardara Singh v. Superintending Canal Officer, 1972 PLJ 243.

 

           6. Order passed without jurisdiction. – Order passed under particular statute can be challenged in a Civil Court, if the same has been passed without jurisdiction.

           Gulzar Singh v. Sadhu Singh, 1975 PLR 450.

 

           7. Construction of new watercourse. – The legislature did not intend to use the word ‘construction’ in sub-section (2) with a view to empower the Deputy Collector to permit construction of a new watercourse as for that purpose specific procedure had been provided in section 30-A to 30-G of the Act. Deputy Collector has been defined in the Act to mean “an officer appointed as such by the State Government to assist the Divisional Canal Officer in revenue matters arising in a division of a canal.”  It is inconceivable that the legislature would have authorised the Divisional Canal Officer to allow construction of a new watercourse only after following a detailed procedure while a Deputy Collector below the rank of Divisional Canal procedure while a Deputy Collector below the rank of Divisional Canal Officer would have been given this power without following any such procedure. In the l ight of the various amendments that have been off and on made by the legislature in the present Act, a simple reading of sub-section (2) of section 68 of the Act leaves no manner of doubt that the word "construction"”of a watercourse here relates to a watercourse which has already been provided in accordance with law after following the statutory provisions. In the aims and objects reproduced above which neccessitated the introduction of Punjab Act No. 21 of 1958, it is clearly stated that the amendments were being brought in, in order to provide for the aligning of watercourse as also for the construction of field drains regarding which no provision existed in the Act. Section 68 of the Act was in existence at the time of amendment and the word ‘construction’ had also been sued in that section if under this section construction of a new watercourse could also have been allowed then in the aims and objects referred to above it could not have been stated that for the aligning of watercourse as also for the construction of field drains no provision existed in the Act.

 

Ram Singh and another v. Bishan Sarup Bansal & other, LLR (Vol. 9) Supplement 263 = 71 PLJ 593.

          

           5. Agreed Order. – In the writ petition the petitioners denied that they had ever agreed to the direction given by the Superintending Canal Officer in his order dated 16th January, 1987. Shi S.S.Grewal, D.C.O., Abohar, has filed a written statement on behalf of respondents Nos. 1,2 and 3. In paragraph 10 of the written statement he has taken up the stand that no injury or loss would be suffered by the petitioners as both the parties had agreed to the said order passed by the Superintending Canal Officer. This averment made in paragraph 10 of the written statement has been verified as true and correct to the best of the knowledge and belief of the deponent. This verification made by using the words “to the best of my knowledge and belief” is absolutely meaningless. Obviously, the Divisional Canal Officer could not have any personal knowledge about what had transpired before the Superintending Canal Officer. Respondent No 4 has also appeared before the High Court and has filed a written statement. All that he has stated in the written statement in this regard is that the impugned order was passed in the presence of the parties. He does not deny the averment made in the writ petition to the effect that the petitioners had not agreed to the order passed by the Superintending Canal Officer. In  view of what has been stated above, the High Court is inclined to accept the petitioner’s case.

           Puran Singh v. Superintending Canal Officer, 1987 P.L.J. 623.

 

           9. Order of warabandi. – An order of warabandi made by the Deputy Collector can only be questioned by appeal or revision. Irrigation and Power Minister has not a semblance of power or justification for interfering with the statutory order.

           Dalip Singh v. Mani Ram Godara, AIR 1968 Punj. 459 = 70 PLR 424.

 

           10. Revisional Authority. – No power to review vests with Revisional Authority.

           Pat Ram v. State of Haryana, 1970 Rev. LR 305.

 

           11. Culturable commandable area. – Each co-sharer is entitled to the water according to the culturable commandable area.

           Gurdial Singh v. The Superintending Canal Officer, Patiala, 1975 PLJ 156.

 

           12. Real’gament of watercourse. – Construction of a new watercourse or realignment of a watercourse cannot be ordered under Section 68 (2).

           Ram Singh v. Bishan Sarup Bansal, Superintending Canal Officer, 1971 PLJ 593.

 

           13. Construction of watercourse. – The construction of watercourse could not be allowed in proceedings under Section 68 of the Act. Furthermore, provisions of the Land Acquisition Act have to apply to the land upon which a watercourse is to be constructed. These provisions contemplate that the authorities concerned can enter upon land only after due compensation is paid to the landowner whose land is acquired for the purpose of construction of a khal.

           Bawa Singh v. Saudagar Singh, 1981 LLR 501 = 1981 PLJ 304 = 1981 RLR 472.

 

           14. Application of Judicial mind. – The order proceeds on a compromise but thrust down the throat of the petitioner. It obviously lacks application of Judicial mind. If Kaka Singh petitioner was not willing for a compromise, the Superintending Canal Officer was required to pass an order on merits. The decision could not have proceeded on both basis. Thus parties’ counsel are agreed that the said order deserves to be set aside, asking the Superintending Canal Officer to re-decide the matter on merits in accordance with law.

           Kaka Singh v. The Sup. Canal Officer, SCC Ludhiana, 1985 (1) LLR 33.

 

           15. Warabandi sanctioned in accordance with Procedure. – Warabandi sanctioned in accordance with procedure  - Remedy if any lies under Section 68 – Cannot be allowed to be urged in a collateral proceeding that water course on basis of which warabandi has been fixed is not authorised.

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

 

           16. No error apparent in the judgment. – There is no error apparent in the judgement of the Superintending Canal Officer which has been passed on remand by the Court. No such objection was taken by the petitioner before the Superintending Canal Officer. Moreover, the petitioner was not a party to the said agreement as such. The  impugned order has been passed on merits after hearing both the parties. It has been stated n the return filed on behalf of the Superintending Canal Officer in para 10(a) that at the time of agreement about the proposed warabandi, some times share holder cannot understand and follow certain  complex things which come to light at the later stage, and the aggrieved person can knock at the door of the competent authority to get his grievance redressed at the later stage. The fixing of warabandi is ad hoc arrangement and can be altered by the competent authority on the application of an aggrieved person.

           Jagtar Singh v. Superintending Canal Officer, 1988 (2) LLR 119 = 1988 PLJ 235.

 

           17. Change of Warabandi. – The Superintending Canal Officer has held that merely on the basis of filing an affidavit by the petitioner before the Divisional Canal Officer there was no justification with the latter to change the Warabandi. This is more so when the petitioner  admittedly had not been irrigating that area prior to the passing of the order by the Divisional Canal Officer.

           Karam Chand v. Superintending Canal Officer & Ors., 1985 (1) LLR 451 = 1985 PLJ 64.

 

           18. Aggrieved party. – 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 sub-section (7) of Section 68 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.

           Punjab State & Ors. v. Prem Singh & Ors., 1985 (2) LLR 321 = 1985 PLJ 245.

 

           19. Cryptic order. – A bare perusal of the impugned order also eveals that the arguments raised in favour of the petitioner by the appellate officer, respondent No.2, were not negatived by the revising authority, respondent No. 1. The order appears to be rather cryptic. Learned counsel for the respondents, on the other hand, contends that these being quasi-judicial authorities were not expected to write a judgement of the standard with which a judicial officer would. That is undoubtedly so, but all the same a quasijudicial order passed in reversal of an order of quasi-judicial authority must ex facie reveal reasons for upsetting the view.

           Jit Singh v. Superintending Canal Officer, 1982 PLJ 133.

 

           20. Water-course could not be allowed to be  constructed in proceedings under Section 68. – The khal in dispute was ordered to be constructed in proceedings under Section 68 of the Act, relating to warabandi. The respondent did not file any copy of the scheme framed by the canal authorities regarding the sanctioning of this khal In Ram Singh and another v. Shri Bishan Sarup Bansal, Superintending Canal Officer and others, 1971 PLJ 593, it was laid down by a Division Bench of  the High Court that the construction of a watercourse could not be allowed in proceedings under Section 68 of the Act. Furthermore, provisions of the Land Acquisition Act have to apply to the land upon which a watercourse is to be constructed. These provisions contemplate that the authorities concerned can enter upon land only after due compensation is paid to the landowner whole land is acquired for the purpose of construction of a khal.

           Bawa Singh v. Sudagar Singh, 1981 PLJ 304.

 

           21. Competency to maintain another petition. – It is a patent that respondent No.3 was a party to the order. In view of this factual position, the High Court is prima facie of the view that he was not entitled or competent to maintain another petition before the Divisional Canal Officer which resulted in passing of the impugned order ‘Annexure E’. The aspect of the matters had not at all been dealt with by the Superintending Canal Officer in spite of the fact that a specific challenge to that effect levelled, before him in the revision petition, copy of which is ‘Annexure D’. Besides that, the impugned order is not at all speaking order and does not deal with the merits of the case.

           Kartar Singh v. Superintending Canal Officer & Ors., 1983 (1) LLR 334 = 1982 PLJ 486.

 

69. Power to summon and examine withness. – Any officer empowered under this Act to conduct any enquiry may exercise all such powers connected with the summoning and examining of witnesses, as are conferred on Civil Courts by the Code of Civil Procedure, and every such enquiry shall be deemed a judicial proceeding.

 

 

PART X

Of Offences and Penalties

 

70. Offence under the Act. – Whoever, without proper authority and voluntary, does any of the acts following, that is to say : -

           (1) damages, alters, enlarges or obstructs any canal or drainage work:

           (2) interferes with, increases or diminishes the supply of water in, or the flow of water from, through,   over or under, any canal or drainage work;

           (3) interferes with or alters the flow of water in any river or stream, so as to endanger, damage or render less useful any canal or drainage work;

           (4) being responsible for the maintenance of a watercourse, or using a watercourse, neglect to take proper precautions for the prevention of waste of the water thereof, or interferes with the authorized distribution of the water therefrom, or uses such water in an unauthorised manner;

           (5) corrupts or fouls the water of any canal so as to render it less fit for the purposes for which it is ordinarily used ;

           (6) causes any vessel to enter or navigate any canal contrary to the rules for the time being prescribed by the State Government for entering or navigating such canal;

           (7) while navigating on any canal neglects to take proper precautions for the safety of canal and of vessels thereon;

           (8) and (9) omitted;

           (10) destroy or moves any level-mark or water gauge fixed by the authority of a public servant ;

           (11) passes, or causes animals or vehicles to pass, on or cross any of the works, banks or channels of a canal or drainage work contrary to rules made under this Act, after he has been desired to desist therefrom;

           (12) violates any rule made under this Act for breach whereof a penalty may be incurred –

           Penalty. – shall be liable on conviction before a Magistrate of such class as the State Government directs in this behalf, to a fine not exceeding one thousand rupees or to imprisonment not exceeding one month, or to both.

 

71. Saving of prosecution under other laws. – Nothing hereinafter contained shall prevent any person from being prosecuted under any other law for any offence punishable under this Act : Provided  that no person shall be punished twice for the same offence.

          

72. Compensation to person injured. – Whenever any person is fined for an offence under this Act, the Magistrate may direct that the whole or any part of such fine may be paid by way of compensation to the person injured by such offence.

 

73. Powers to arrest without warrant. – Any person incharge of or employed upon any canal or drainage work may remove from the lands or employed upon any canal or damage work may remove from the lands or buildings belonging thereto, or may take into custody without a warrant and take forthwith before a Magistrate or to the nearest police station, to be dealt with according to law, any person who, within his view, commits any of the following offence :-

(1)   Willfully damages or obstructs any canal or drainage work.

(2) Without proper authority interferes with the supply or flow of water in or from any canal or drainage work, or in any river or stream, so as to endanger, damage or render less useful any canal or drainage work.

 

74. Definition of “Canal”. – In this part of the word ‘Canal’ shall (unless there be something repugnant in the subject or context) be deemed to include also all lands occupied by the State Government for the purposes of canals, and all building, machinery, fences, gates and other erections, trees, crops, plantations or other produce, occupied by, or belonging to the State Government, upon such lands.

 

PART XI

Of Subsidiary Rules

 

75. Powers to make, alter and cancel rules. – The State Government may, from time to time make rules to regulate the following matters : -

           (1) the proceedings of any officer who, under any provision of this Act is required or empowered to take action in any matter ;

           (2) the cases in which, and the officers to whom and the conditions subject to which orders and decisions given under any provisions of this Act, and not expressly provided for as regards appeal, shall be appealable;

           (3) the persons by whom, and the time, place or manner at or in which anything for the doing of which provision is made under this Act, shall be done;

           (4) the amount of any charge made under this Act ; and

           (5) generally to carry out the provisions of this Act.

 

           The State Government may, from time to time alter or cancel any rules so made.

           Publication of rules. – Such rules alteration and cancelments shall be published  in the Official Gazette and shall thereupon have the force of law.

 

          

Contents