Punjab-Haryana High Court
Suraj Bhan And Ors. vs The State Of Haryana And Ors. on 5 October, 1993
Equivalent citations: (1994)108PLR475
ORDER V.K. Jhanji, J.
1. By this order, I propose to dispose of Civil Writ Petition No. 9455, 4961 and 13601 of 1991 by one judgment as common question of law is involved therein.
2. Petitioners as well as the private respondents in these writ petitions are the landowners of village. Chautala and Teja Khera, Tehsil Dabwali, District Sirsa. They are irrigating their lands from the various outlets of Teja Khera minors. The grievance of the petitioners in the writ petitions is that the Superintending Engineer without giving notice or inviting applications, vide orders dated 11.2.1991 (Annexures P.2 and P.3), allowed enhanced water supply to the private respondents for their gardens. According to them, this has resulted in reduction of water supply to their fields.
3. In reply to the averments made in the writ petitions, some of the respondents have filed written statements, wherein they have denied the allegations so made by the petitioners. According to the respondents, discharge was in the Teja Khara minors and because of extra discharge, the petitioners have filed civil suits and, therefore, this Court should not interfere in exercise of powers under Article 226 of the Constitution of India.
4. Mr. H.S. Hooda, Senior Advocate, counsel for the petitioners, contended that the orders of the Superintending Engineer cannot be maintained in view of Division Bench judgment of this Court reported as Bant Singh and Ors. v. Man Singh and Ors., (1975)77 P.L.R. 761. In answer to this, counsel for the respondents contended that petitioners have no locus-standi to challenge the orders of the Superintending Engineer, inasmuch as it is not their case that their claim for enhanced water supply was rejected in preference to that of the respondent. According to the counsel for the respondents, petitioners in-fact do not own any garden.
5. Having heard the learned counsel for the parties at length, I am of the view that the writ petitions can be disposed of with a direction to the Superintending Engineer to re-determine the matter as indicated hereinafter. Under Rule 9 of the Rules for Extra Supply of Canal Water for Gardens and Orchards, 1946, it is incumbent upon the Superintending Engineer to first assess the amount of water that can be released for garden area and thereafter invite applications from the garden owners which are required to be submitted by the end of September and thereafter required to be transmitted to the Fruit Specialist who after examining the suitability of the area for the gardens is required to submit his recommendations to the Superintending Engineer concerned and thereafter, he was to fix a date not later than the end of December so as to decide which applicant is to be given enhanced supply of water. The rule leaves little discretion to the Superintending Engineer in the matter because in case of demand for enhanced supply of water being equal or less to the supply of water to every applicant. In a situation, where the demand for enhanced supply of water exceeds the supply available, then he has to take decision by drawing lots in the presence of the Fruit Specialist and the applicants who may choose to be present. Of course, the Rules are not framed in exercise of powers under Section 75 of the Northern Indian Canal and Drainage Act, 1873, but these Rules have been held to have the force of law by the Division Bench judgment of this Court in Bant Singh's case (supra). Rule 9 thus, provides that all those persons who have a garden will have an equal chance to get water supply and would not be discriminated in any manner. From the various annexures placed on record, it is difficult to determine as to whether the Superintending Engineer invited applications or gave proper notice to the persons concerned before the water supply was enhanced. As per the case set up in the pleadings, water supply was enhanced as far back as 1990 and for the last more than three years, water is being supplied to the gardens. In case the order is quashed for want of notice, it would cause irreparable loss to the respondents who have irrigated their gardens for the last more than 3 years. The grievance of the petitioners can be met by giving a direction to the Superintending Engineer that he would hear the objections/representations of the petitioners to be submitted to him, within two months from today. On receiving such objections or representations, he would determine as to whether discharge was increased in the water-course of Teja Khera minors for making up the deficiency caused by the enhanced water supply to the gardens. In case he finds that the discharge was increased, then die supply already enhanced shall not be reduced. But if the finds that discharge was not increased and reduction was made from the 'wari' of any other share-holder, then he would pass appropriate orders in this regard. I am sure that in case any order is required to be passed, the Superintending Engineer would take into consideration the fact that the supply of water is being given to the gardens of the respondents for the last several years.
6. Consequently, the writ petitions stand disposed of in the terms indicated above. No costs.