Punjab-Haryana High Court
Mohinder Singh And Ors. vs Raghu Nath on 4 February, 2002
JUDGMENT V.K. Bali, J.
1. Challenge herein is to a judgment and decree dated 7.4.1995 rendered by the Subordinate Judge, II Class, Sonepat decreeing the suit of the plaintiff Raghu Nath who filed a suit for declaration and permanent injunction primarily challenging the order dated 16.1.1987 (Ex. P1). The case of the plaintiff was that he is owner in possession of land bearing khewat No. 45, Khata No. 71, Rectangle No. 32, Killa No. 16/20 and rectangle No. 33, Kilt No. 20/1 situated in the area of village Fatehpur, Tehsil and Distt. Sonepat. The plaintiff had got this land acquired by the Canal Authorities and had got sanctioned a watercourse on this land for irrigating his fields. Earlier Killa Nos.32/16/2 and 33/20/1 were owned by Bhagwana (defendants No. 3), who later died and was represented by his legal representatives Mohinder Singh Jai Bhagwan, Ishwar Singh and Azad Singh and some other so-shares. Defendants No. 3 in collusion with Canal Authorities field an application that he had be allowed to irrigate his fields comprised in Kill Nos. 33/11 and 20 from the water-course which exists on the land of the plaintiff, fl has further been his case that files of defendant No. 3 were always irrigated from another water-course and not from the water-course from which he irrigated his files. On the application of defendants No. 3, order Annexure P/1 dated 16.1.1987 was passed vide which the application of defendant No. 3 was accepted and he was allowed to share the water-course in dispute. In so far as defendants No. 1 and 2 are concerned, their names were deleted from the array of the plaint on the request of the plaintiff. The contesting defendant opposed the cause of plaintiff on various grounds inclusive of bar of civil court's jurisdiction. The pleas raised by them would reflected from the issues that came to be framed by the trial which are herein reproduced;
"1. Whether the order dated 16.1.1987 is against law and without jurisdiction on the grounds given in the plaint? If so, to what effect? OPP.
2. Whether notice under Section 80 CPC was not served upon the defendant Nos. 1 and 2, if so to what effect? OPP.
3. Whether this court has no jurisdiction to try the suit? OPP.
4. Whether the plaintiff has no locus-standi to file the present suit?
5. Whether the plaintiff is estopped from filing the suit by his own act and conduct? OPP.
2. The trial resulted in the suit being decreed in favour of the plaintiff and against the defendants and aggrieved by the same the contested defendants filed an appeal which has since been dismissed. Thus present appeal.
3. Besides arguing on merits, learned counsel for the appellants vehemently contends that by virtue of provisions contained in Section 25 of the Haryana Canal and Drainage Act, 1974 (hereinafter referred to as the "Act of 1974), the jurisdiction of civil court has been specifically barred and yet order which came to be passed by the canal Authorities has been set aside. The issue pertaining to the jurisdiction of the civil Court has been wrongly decided, thus contends the counsel. With a view to appreciated the controversy based upon the contentions of learned counsel as noted above, it will be useful to give the necessary details culminating into order Ex. P1 which has since been set aside by the courts below. The reading of the order aforesaid would show that Bhagwana since deceased, made an application pleading therein that a scheme was framed under Section 17 of the Act of 1974 and the same was published under the Rules inviting objections and suggestions for which purpose the date was fixed as 16.1.1987. On the date aforesaid, the statements of the parties were recorded. Shri Bhagwana stated that he was owner of Killa No. 33/11-20 (the word "not" has been wrongly mentioned in the order Ex. P1) and a sanctioned water-course passes through killa Nos. 33/20 and 32/16. He requested that his area consisting of field No. 33/11/20 may be allocated on this sanctioned water-course D.E.F. He agreed to bear the cost of the water-course according to the share determined by the Canal Authorities. This prayer of Bhagwana was resisted on the plea that the applicant is irrigating his field from another water-course. The Canal Authorities after hearing the parties recorded the following decision.
"After hearing the parties and perusal of the case, reports of Ziledar, Sonepat and Sub Divisional Canal Officer, 1 consider the request of the applicant as genuine. I hereby order under Section 18(2) of the Haryana Canal and Drainage Act allocation of Field No. 33/11-20 on water-course DBF passing through Kill No. 33/20 and 32/16 and it was acquired for use by the respondent and farther direct that the applicant will deposit the share of the costs of water-course DEF as determined by the Sub Divisional Canal Officer, Sonepat."
4. The controversy before the Canal Authorities as is also clear from the statement made by the plaintiff before the Civil Court was only that whereas the plaintiff was not wanting applicant to share the water-course so sanctioned by the authorities, the applicant i.e. Bhagwana was wanting to have the share in this water-course to irrigate his fields. The aforesaid position is also clear from the statement of the plaintiff made in the court that the Khaal from where the plaintiff was irrigating his fields is closed. He also stated that they take the water by digging it but so far as water is concerned, the quantity thereof is not reduced and further that he does not want to share the sanctioned water-course with the defendant. On the controversy as fully detailed above, on the objection raised by the defendant, learned first appellate court observed as follows;
"Assailing the trial Court judgment and decree under issues Nos. 1 and 3, the learned counsel for the appellants urged that the impugned order dated 16.1.1987, rendered by the Divisional Canal Officer was perfectly legal and civil Court had no jurisdiction to set aside the same in view of the embargo created by Section 25 of the Haryana Canal and Drainage Act, 1974 ( Act for short) wherein it is laid down that no civil Court shall have jurisdiction to entertain or decide any question relating to matters falling under Section 17 to 24 of the Act. The counsel urged that the trial Court itself had admitted that the Divisional Canal Officer had the authority to prepare a draft scheme under Section 17 of the Act for any of the matters including alteration, extension and alignment of any water course and the allotment of any new areas to a water course. The counsel accordingly urged that the findings of the trial court on issues Nos. 1 and 3 need reversal.
12. I am however, afraid to accept the contentions of the learned counsel for the appellants. This is because Raghunath, respondent No. 1 was the absolute owner of rectangle No. 33, Killa number 16/2(0-3) and rectangle No. 33, Killa No. 20/1(0-4) as is clear from the copy of jamabandi for the year 1983-84, which is Exhibit P3. This land total measuring 0 Kanal 7 Marias was a gair mumkin ratia and was being used as a personal water course by him. Even if the DCO had power to allocate new areas to the water-course existing on this land, then at least he was supposed to prepare the draft scheme by passing a speaking order in this regard. Exhibit PI is a certified copy of the order dated 16.1.1987 rendered by the DCO. It specifically shows that Bhagwana had moved an application for allocating him a share in this Khaal. Raghunath had objected to this proposed allocation on the plea that Bhagwana was irrigating his fields from another water course. The DCO rendered his decision in favour of Bhagwana and his order runs as under:-
"After hearing the parties and perusal of the case, reports of the Ziledar Sonepat and Sub Divisional Canal Officer, I consider the request of the applicant is genuine. I hereby order under Section 18(2) of the Haryana Canal and Drainage Act allocation of filed No. 33/11/20 on water-course DBF passing through Kill No. 33/20, 3216 and it was required for use by the respondent and further direct that the applicant will deposit the share of the cost of water-course DBF as determined by the Sub Divisional Canal Officer, Sonepat."
13. Now the aforesaid order of the DCO does not indicate as to what objections were raised by the respondent Raghunath before him. It further does not indicate as to how the said objections were disposed of by the DCO and as to how the DCO found the request of Bhagwana as genuine. The DCO did not decide if any other water-course for the use of Bhagwana existed or not, as claimed by Raghunath. The impugned order was thus totally non-speaking, cryptic and laconic. There cannot be any dispute that while rendering the impugned order the DCO was discharging quasi-judicial functions. He was, therefore, supposed to pass a speaking order in this regard. If any authority is required on this point, then reference can usefully be made to a judgment of High Court of Punjab and Haryana, reported as S. Dalip Singh v. State of Punjab, 1969 P.L.J. 61. In this case before the Hon'ble High Court, the order of Superintendent Canal Officer did not refer to the objections of the petitioners and also did not contain the points for determination and the reasons for the decision. In these circumstances the Hon'ble High Court quashed the order of the Superintendent Canal Officer by observing that it was a well settled law that in quasi-judicial matters, the tribunals or the authorities concerned are expected to record what is called a self-contained speaking-order. The learned trial Court has actually relied upon this judgment of the Hon'ble High Court and on the basis of the same has rightly set aside the impugned order dated 16.1.1987 while adjudicating issue No. 1.
14. It is equally well established that the authorities under the various statutes are to discharge their functions in accordance with the statutory provisions and in accordance with principles of natural justice. If that is not done, then resultant orders rendered by such tribunals or authorities will be null and void and the civil court will have every jurisdiction to entertain in the matters challenging the correctness of such orders. Reference in this regard may usefully be made to a judgment of the Full Bench of the Punjab and Haryana High Court, reported as Vinod Kumar v. State of Haryana, 1986 P.L.J. 161. The trial court has, therefore, correctly answered issue No. 3 also against the appellants in view of its finding on issue No. 1 to the effect that the impugned order dated 16.1.1987 was a nullity in eyes of law. It being a non-speaking order, was a nullity in the eyes of law. To render such an order is to ignore the principles of natural justice."
"Notwithstanding anything 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 matter falling under Sections 17 to 24."
5. It could not be disputed during the course of arguments that order Ex. P1 came to be passed under the provisions of Sections 17 to 24 of the Act of 1974. The same is also reflected from the order itself. In considered view of this Court, the civil court had no jurisdiction to entertain and try the suit. The mere fact that the order is not a detailed one or for that matter the reasons for the conclusion in accepting the prayer of Bhagwana have not been given, would not make the order without jurisdiction i.e. not within the jurisdiction of the Canal Authorities. The ground that the order was non-speaking and, therefore, required to be set aside could well be taken in appeal or revision which was certainly competent under the provisions of the Act of 1974. The order on account of the aforesaid, can at the most be termed as illegal but it is well settled that illegal orders can be set aside in an appellate or revisional forum.
6. The reliance by the appellate court on two decisions, (i) a judgment of this court in Dalip Singh and Ors. v. State of Punjab and Ors., 1969 P.L.J. 61, (ii) decision of Full Bench of this court in State of Haryana and Ors. v. Vinod Kumar and Ors., (1986-1)89 P.L.R. 222 (F.B.) (wrongly mentioned in the judgment of first appellant court as Vinod Kumar v. State of Haryana, 1986 P.L.J. 161, is wholly misplaced. The order of the Canal Authorities was set aside in the case of Dalip Singh and Ors. v. State of Punjab and Ors. (supra) by the High Court in the jurisdiction vested in it under Article 226 of the Constitution of India. In so far as decision of the Full Bench in State of Haryana and Ors. v. Vinod Kumar and Ors. (supra) is concerned, the same pertained to declaration of the surplus area under the Provisions of Haryana Ceiling on Land Holdings Act, 1971. The brief facts of the decision rendered by the Full Bench in the case of State of Haryana and Ors. v. Vinod Kumar (supra) reveal that the order of the Collector was challenged therein on the ground that inspite of the fact notice was served upon them by the Collector before declaration of surplus area and the tenant's permissible area and that the land measuring 432 bighas 14 biswas out of the total holdings was banjar quadim, banjar jadid and ghair mumkin and as such being not "land" could not be counted towards the total holdings of the land-owners. It is on the facts as stated above that it was held that an order passed by the Tribunal of special jurisdiction in violation of provisions of statute or principles of natural justice, the same would be nullity and thus the civil Court would have jurisdiction to try the suit. There can be no dispute that if the Tribunal of a limited jurisdiction may pass order which the provisions of the statute may not permit, the civil Court will always have jurisdiction to try the suit as in that case the Court of limited jurisdiction proceeds to decide the matter for which it has no jurisdiction and such an order is always amenable to the jurisdiction of Civil Court. The order that might have been passed without issuing notice whatsoever is a nullity which too can be challenged before the civil Court. In the present case, however, the plaintiff was heard in the matter. It is not the case of violation of principles of natural justice. The mere fact that no reasons have been recorded in the order, in considered view of this Court, would not be enough to challenge it in a civil Court, if such an order cannot be challenged in view of the bar created by the special statute. The jurisdiction of the civil Court was clearly barred to interfere with order Ex. P1 and, therefore the suit ought to have been dismissed.
7. In view of the discussions made above the judgment and decree of the trial Court dated 7.4.1995 and the one affirmed by the first appellate Court is set aside and the suit of the plaintiff is dismissed. Consequently, the present appeal is allowed. The parties, however, are left to bear their own costs.