Punjab-Haryana High Court
Bhagirath Son Of Sheo Karan vs The Divisional Canal Officer, Sirsa ... on 4 February, 2000
Equivalent citations: AIR2000P&H178, (2000)125PLR197, AIR 2000 PUNJAB AND HARYANA 178, (2000) 1 CURLJ(CCR) 510, (2000) 3 LANDLR 348, (2000) 3 ICC 181, (2000) 125 PUN LR 197, (2000) 2 RECCIVR 496
Author: N.K. Sud
Bench: N.K. Sud
JUDGMENT N.K. Sodhi, J.
1. Ramji Lal who is the real brother of respondents No. 4 and 5 is a resident of village of Shekhupuria. He along with some other residents of the village filed an application before the Divisional Canal Officer, Sirsa for, the transfer of their 155 acres of land for irrigation from outlet R.D. 16700-R (lift) Bani Distillary to outlet R.D. 18500-R. The application was processed by the Ziledar and the case for transfer of the area was recommended through the Sub Divisional Officer, Panjuana. A draft scheme was prepared and the same was published under Section 18 of the Haryana Canal and Drainage Act, 1974 (hereinafter called the Act) for inviting objections and suggestions. After hearing the claims of all the share holders of both the outlets the Divisional Canal Officer by his order dated 8-6-1994 transferred 13.19 acres of land from outlet R.D. 16700-R to outlet R.D. 18500-R and approved the scheme in regard to this area. The scheme in regard to the remaining area was rejected and the request for the transfer of the land declined. Ramji Lal and some others filed an appeal before the Superintending Canal Officer which was dismissed on 13-9-1994 and a further appeal filed by them before the Chief Canal Officer also met with the same fate. It was observed by the officers who decided the appeals that irrigation development of both the outlets was almost identical and if the transfer of the area was allowed, the size of the outlet R.D. 16700-R would be reduced and the same would not be able to provide adequate irrigation to the remaining lands. It was also observed that a large scale of transfer of are a would adversely affect the other share holders. After the aforesaid orders became final, respondents No. 4 and 5 along with some other residents of village Shekhupuria filed an application for the transfer of 59 acres of their area for irrigation from outlet R.D. 16700-R to R.D. 18500-R. It may be mentioned that the area of 59 acres is a part of 155 acres for which Ramji Lal and others had earlier moved a similar application before the Divisional Canal Officer. This time also, a draft scheme was prepared and published in the prescribed manner inviting objections and suggestions from the share holders of the two outlets. After considering the objections and suggestions of a large number of residents who appeared before the Divisional Canal Officer, the latter by his order dated 13-3-1996 allowed the application and transferred 59 acres of land for irrigation from outlet R.D. 16700-R to R.D. 18500-R. It was observed that every share holder has a right to choose the best source of irrigation for his land and that the lands of the applicants before him were not being irrigated from the existing water course and, therefore, the demand for the transfer of their area was found to be genuine. Bhagirath the petitioner herein who felt aggrieved by the order of the Divisional Canal Officer transferring the land from one outlet to the other filed an appeal before the Superintending Canal Officer, Sirsa which was dismissed on 2-8-1996 and the order of the Divisional Canal Officer upheld. The petitioner who was the appellant before the Superintending Canal Officer did not appear in spite of service. The Superintending Canal Officer was also of the view that the land of respondents No. 4 and 5 could not be irrigated from the existing source and that the irrigation would be proper from the proposed source of outlet R.D. 18500-R as was evident from the irrigation figures of last three years which were attached with the file. He also found the demand for the transfer of the area as genuine. Still not satisfied, the petitioner went in appeal before the Chief Canal Officer. It was contended before him that the Divisional Canal Officer was in error in deciding the case after the expiry of thirty days from the date of receipt of objections under Section 18(2) of the Act and that he should have sought extension of. time from the Superintending Canal Officer. It was contended that since the time had not been extended, the order of the Divisional Canal Officer was contrary to law. This contention did not find favour with the Chief Canal Officer who inspected the site and found that the water course of outlet R.D. 18500-R was passing through the fields of the respondents which could get better irrigation from this outlet whereas the other water course outlet R.D. 16700-R was quite far away and it was difficult to irrigate the land of the respondents. The appeal was consequently dismissed on 10-11-1997 and the orders of the Divisional Canal Officer as also of the Superintending Canal Officer were upheld. It is against these orders that the present petition has been filed under Article 226 of the Constitution seekinga writ of certiorari for quashing the orders under challenge.
2. It was strenuously contended by Shri L. N. Verma learned counsel for the petitioner that the demand for the transfer of 59 acres of land had already been rejected by the authorities upto the level of the Chief Canal Officer and since there was no change in the circumstances, a second application by respondents Nos. 4 and 5 for the same purpose was not maintainable. It was urged that the application was barred by the principles of res judicata and that the authorities below had no jurisdiction to transfer the aforesaid area. He relied on a single Bench judgment of this Court in Daryao Singh v. Chief Canal Officer, Haryana, 1984 Pun LJ 3 in support of his contention. Counsel for respondents Nos. 4 to 6, on the other hand, submitted that proceedings before the authorities under the Act were summary in nature and, therefore, the principle of res judicata did not apply. He further submitted that the authorities had the jurisdiction to entertain second application for the transfer of 59 acres of land from outlet R.D. 16700-R to R.D. 18500-R and that previous application had been filed by Ramji Lal and others whereas second application which culminated in the passing of the impugned orders had been moved by respondents Nos. 4 to 6 and other share holders who were not parties in the earlier application. On merits, it was contended by the respondents that their land was not being properly irrigated for want of a watercourse and that transfer of the area to outlet R.D. 18500-R was the only proper course for better irrigation of their land. It was also contended that the petitioner inconnivance with a few share holders had dismantled a part of the water course which passed through their land causing the respondents an irreparable injury thereby leaving their 59 acres of land unirrigated.
3. Having heard counsel for the parties and after going through their pleadings, we are of the opinion that the second application filed by respondents Nos. 4 to 6 which culminated in passing of the impugned orders was not barred by the principles of res judicata. Apart from the fact that parties in the two applications were different, proceedings before the Divisional Canal Officer are of a summary nature and did not involve any detailed inquiry except for the publication of a draft scheme inviting objections/suggestions and for considering the same under Section 18(2) of the Act. No doubt, the Divisional Canal Officer performs a quasi judicial function while disposing of the application but does not exercise powers of a Court so as to attract the doctrine of res judicata. The method in which the application is disposed of is not analogous to the disposal of a plaint in a civil Court nor are any issues framed. The Divisional Canal Officer has no power to summon the witnesses and can only approve, reject or modify the draft scheme prepared under Section 17 of the Act. He cannot by any process of reasoning be described a Court and he does not even have the trappings of a Court. It is settled law that where disputes are settled in a summary manner the principle of res judicata can have no application. A similar question arose before the Supreme Court in Inder Singh v. Financial Commissioner, Punjab (1997) 1 Pun LJ 52. This was a case under the Pepsu Tenancy and Agricultural Lands Act, 1955 whereunder also the applications filed are disposed of in a summary manner. A tenant had filed an application under Section 22 of that Act for conferment of proprietary rights which was rejected by the competent authority on 25-4-1960 on the ground that he was not in possession for twelve years. This order was affirmed by all the departmental authorities in appeal and revision and even a writ petition filed against these orders was dismissed by this Court. Subsequently, the tenant made a second application on 26-3-1965 for conferment of ownership rights based on tenancy. This application was allowed on 15-12-1965. The order was confirmed in appeal and a revision petition had been dismissed by the Financial Commissioner. In a writ petition filed in this Court a Division Bench set aside the orders of the authorities on the sole ground that the order passed on earlier occasion was final between the parties and operated as res judicata and, therefore, the second application under Section 22 of the Act was not maintainable. The Division Bench judgment was challenged before the Supreme Court and while reversing the view expressed by this Court their Lordships accepted the contention that principles of res judicata do not apply to proceedings where disputes are decided in a summary manner. It will be appropriate to reproduce the observations of their Lordships made in para 3 of the judgment;
"Shri Ujagar Singh, learned senior counsel for the appellants contended that the view taken by the High Court is not correct in law. Since the proceedings before the authorities is of summary nature, the doctrine of res judicata has no application. The Act does not prescribe any principle of res judicata as such. The proceedings before the authorities are of summary nature. It would not be correct to apply the principle of res judicata. We find force in the contention. It is not in dispute that the order passed by the authorities is without any elaborate trial like in a suit but in a summary manner. It is well settled law that the doctrine of res judicata envisaged In Section 11 of C.P.C. has no application to summary proceedings unless the statute expressly applies to such orders. The authorities are not civil Court nor the petition a plaint. No issues are framed nor tried as a civil suit. Under these circumstances, the Division Bench of the High court was clearly in error to conclude that the earlier proceedings operate as res judicata."
4. Applying the same principle to the proceedings before the Divisional Canal Officer, we have no hesitation in holding that the application filed by respondents Nos. 4 to 6 was not barred by res judicata and that the same was maintainable.
5. In Daryao Singh's case (1984 Pun LJ 3) (supra) the facts were similar to the facts of the case in hand and a learned single Judge of this Court held that an application for the transfer of an area from one outlet to another having been decided by the Divisional Canal Officer on an earlier occasion would debar a second application being filed on the same cause of action. There also an application had been filed for the transfer of the area from one outlet to the other which was rejected by the Divisional Canal Officer which order had been affirmed by the departmental authorities in appeal. The applicants again filed a second application which was allowed. The orders allowing the second application were challenged in this Court and the learned single Judge set aside the same on the ground that the second application was barred by the principle of res judicata. No doubt, this judgment supports the contention of the petitioner but in view of the binding precedent of the Supreme Court in Inder Singh's case (1997 (1) Pun LJ 52) (supra), it has to be held that the view expressed by the learned single Judge in Daryao Singh's case (supra) no longer subsists. Moreover, in the case before us, the parties are different.
6. Aperusal of the impugned orders show that the authorities below had considered the application filed by respondents Nos. 4 to 6 and found that their lands were not being properly irrigated from outlet R.D. 16700-R, as according to them a part of the watercourse had been dismantled by the petitioner and some other share holders. It was also found that the proper course would be to transfer the area of respondents Nos. 4 to 6 from outlet R.D. 16700-R to R.D. 18500-R for better irrigation of the land. Reference was also made to the last three years figures showing that by such a transfer the irrigation would be better. These findings are based on the material that was placed before the authorities below and in the very nature of things, this Court cannot substitute its own judgment for that of the authorities. Apart from the fact that the earlier application filed by Ramji Lal and others had been dismissed holding that there was no need for the transfer of the area, counsel for the petitioner has not pointed out any jurisdictional error in the impugned orders so as to warrant interference by this Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution. We have already held that the action of the respondents in entertaining the application by respondents Nos. 4 to 6 was not without jurisdiction as the claim was not barred. There is thus no error apparent on the face of the orders either.
7. In the result, the writ petition fails and the same stands dismissed with no order as to costs.