IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 20424 of 2008 Date of decision: July 16, 2009 Atam Parkash ….. Petitioner Versus State of Haryana and others ….. Respondents Present: Mr. Shalender Mohan, Advocate for the petitioner. **** S.S. SARON, J. This petition has been filed under Articles 226 and 227 of the Constitution of India seeking quashing of the orders dated 21.5.2007 (Annexure P3), 31.8.2007 (Annexure P4) and 16.5.2008 (Annexure P5) passed by the Canal authorities under the Haryana Canal and Drainage Act, 1974 (“Act” – for short). A further prayer has been made by the petitioner for restraining respondent No.3 Ram Parkash to take water as per the order dated 16.5.2008 (Annexure P5) passed by the Superintending Canal Officer (respondent No.2) in appeal. The petitioner irrigates his fields from the water course of Luhari minor village Luhari Ragho from the outlet No.RD32200-L for the last many years. He is a share-holder of the abovesaid outlet along with other share-holders. In the year 1996, the petitioner submitted an application to the Deputy Collector, Water Service Division, Hansi for providing him special Bharai (fill) and to fix his CWP No. 20424 of 2008 [2] wari (turn) at khata No.9 for his entire land. The Deputy Collector, Water Service Division, Hansi found the demand of the petitioner to be genuine and accepted the same vide order dated 31.10.1996 (Annexure P1). Thereafter land measuring 24 kanals 4 marlas was purchased by the petitioner from Suta Bai and others from khata No.21. On account of the subsequent purchase by the petitioner, his wari (turn) for irrigating the fields fell under different khata numbers. He was not able to irrigate his fields properly. Therefore, the petitioner submitted an application to the Deputy Collector, Water Service Division, Hansi to fix his wari (turn) at khata Nos.16 and 17 for the entire land. The said request was accepted by the Deputy Collector vide order dated 18.12.2006 (Annexure P2). Ram Parkash (respondent No.3) had objected to the said demand of the petitioner and he stated that in the warahbandi, his wari (turn) was fixed at serial No.24 which was wrong and he wanted that his wari (turn) be fixed after the wari (turn) of Satnam and Atam Parkash (petitioner) at khata Nos.16 and 17. Besides, as per the Fard 0-9, his wari (turn) had been fixed less which may be corrected and the ‘naka’ (small temporary barrage) of Atam Parkash (petitioner) etc. which was together be fixed. Ram Parkash (respondent No.3) did not present the necessary revenue receipt, therefore, his demand was rejected in terms of the order dated 18.12.2006 (Annexure P2). Ram Parkash (respondent No.3) thereafter made another application for the demand of his wari (turn) to be fixed at khata No.17 after the wari (turn) of the petitioner because the petitioner had got his wari (turn) at khata No.15 i.e. after the wari (turn) of Nitesh-Gulshan etc. The petitioner took his wari (turn) after khata No.15 due to which Ram Parkash (respondent No.3) had to fill a long khal (water channel). Therefore, CWP No. 20424 of 2008 [3] it was prayed that his wari (turn) may not be kept together with that of the petitioner and it should be separated. The Deputy Collector, Hansi Water Service Division, Hansi vide order dated 21.5.2007 (Annexure P3) found the demand of Ram Parkash (respondent No.3) to be genuine and accepted the same. The petitioner aggrieved against the said order (Annexure P3) filed an appeal before the Divisional Canal Officer, Water Services Division, Hansi which was dismissed after hearing all the share-holders vide order dated 31.8.2007 (Annexure P4). It was held that the demand of the petitioner was not genuine as per the situation of the land and that the Deputy Collector, Hansi had rightly decided the case as per the principle of warahbandi “first come first served”. The decision of the Deputy Collector, Hansi dated 21.5.2007 (Annexure P3) was upheld. The petitioner aggrieved against the said order (Annexure P4) filed an appeal before the Superintending Canal Officer, Bhakra Water Services Circle No.1, Hisar which was dismissed vide order dated 16.5.2008 (Annexure P5) and the order dated 31.8.2007 (Annexure P4) passed by the Divisional Canal Officer was upheld. Aggrieved against the same, the petitioner has filed the present petition. Learned counsel for the petitioner has contended that the petitioner was rightly given his turn of water vide order dated 18.12.2006 (Annexure P2) and the claim of Ram Parkash (respondent No.3) was declined. Thereafter, Ram Parkash (respondent No.3) made another application which was allowed vide order dated 21.5.2007 (Annexure P3). It is submitted that at the time of passing the said order (Annexure P3), the petitioner was not heard which is in CWP No. 20424 of 2008 [4] violation of proviso to Section 55(1) of the Act. It is submitted that the principle of “first come first served” has been incorrectly applied. After giving my thoughtful consideration to the contentions of the learned counsel for the petitioner, I find no merit in the same. The petitioner though was entitled to hearing at the time of passing the initial order dated 21.5.2007 (Annexure P3) as is the requirement of the proviso to Section 55(1) of the Act, however, the same has not resulted in any prejudice to the petitioner. A requirement of hearing while passing an order affecting the rights of a person is an integral part of the principles of natural justice. However, in Aligarh Muslim University v. Mansoor Ali Khan AIR, 2000 SC 2783 the Hon’ble Supreme Court placed reliance on M.C. Mehta v. Union of India, AIR 1999 SC 2583 wherein it was held that there can be certain situations in which an order passed in violation of the principles of natural justice need not be set aside under Article 226 of the Constitution. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. A prejudice that has been caused to the petitioner for non-compliance of the principles of natural justice has to be shown. Even otherwise the petitioner has been granted a post- decisional hearing by the Divisional Canal Officer and the Superintending Canal Officer. Though a post-decisional hearing may not be a substitute for the initial hearing that is to be granted but nevertheless the non-grant of hearing at the initial stage in the facts and circumstances is not shown to have resulted in any prejudice to the petitioner. At the time of motion hearing on 4.12.2008 counsel for the petitioner had sought time to place further material on record. CWP No. 20424 of 2008 [5] The case was adjourned to 15.12.2008 on which date the following order was passed by a Division Bench of this Court :- “The attention of learned counsel for the petitioner has been invited to the following observations recorded in the impugned order dated 16.5.2008 (Annexure P5) :- “….After examine (sic. – examining) the record it is found that Deputy Collector and Divisional Canal Officer has fixed the sequences of wari on the basis of principle of warabandi first come first serve and fix the wari as per location of land holding”. Learned counsel for the petitioner states that the conclusion drawn in the impugned order is factually incorrect. In order to repudiate the aforesaid conclusion, learned counsel for the petitioner seeks an adjournment so as to enable him to place further material on the record of this case. Adjourned sine die. List as and when the needful has been done.” In terms of the above order, the petitioner was to place further material to repudiate the aforesaid conclusion i.e. the basis of principle of warabandi of first come first serve and fix the wari (turn) CWP No. 20424 of 2008 [6] as per the location of the land as recorded in the impugned order was factually incorrect. The petitioner thereafter vide C.M. No. 3317 of 2009 prayed for placing on record a joint application dated 29.8.2006 (Annexure P9) which was allowed by this Court vide order dated 24.2.2009. The said application (Annexure P9) is addressed to the Deputy Collector, Canal Department, Hansi. It is stated by the petitioner and his brother Satnam Dass, Kashmiri Lal and Ashok Kumar in the said application (Annexure P9) were living together and their fills were also joint. Till the said date their wari (turn) of water was also joint. They wanted to take their wari (turn) together in future also. Therefore, the wari (turn) of water should not be changed in any manner. It was, therefore, prayed that their wari (turn) of water should continue jointly and it be not changed. The case before this Court was then adjourned to 30.5.2009. On 30.5.2009, learned counsel for the petitioner took more time to comply with the requirement as projected in the order dated 15.12.2008 referred to above. The case was adjourned to 8.7.2009 on which date it was submitted that the basis of principle of warahbandi “first come first served” and fixing the wari as per the location of land holding was factually incorrect. It was submitted that in terms of the order dated 15.12.2008, time was taken to repudiate the aforesaid conclusion and place further material on record. However, the same could be shown on the basis of the site plan (Annexure P7). Therefore, it was submitted that no further material was to be placed on record. The case was accordingly adjourned for today. Today on the basis of material on record including the site plan (Annexure P7), the petitioner has not been able to show as to how the principle of “first come first serve” and fixing the wari CWP No. 20424 of 2008 [7] (turn) as per location of the land was factually incorrect. A perusal of the site plan (Annexure P7) shows the land of the petitioner Atam Parkash in light brown colour in field Nos.25 and 26. The land of respondent No.3 is shown in light blue colour in field No.25. The land of the petitioner encircles the land of respondent No.3 on three sides of field No.25 and on the south is the water course, which touches the land of the petitioner as well as respondent No.3. The petitioner and respondent No.3 were getting their wari (turn) from Khata No.17 which is towards the North and the water course comes to the land of respondent No.3 in blue colour in field No.25, which is in accord with the sequence of wari (turn) of principle of warbandi, ‘first come first serve’ and fixing of wari (turn) as per location of the land. In the circumstances, there is no merit in the petition and the same is accordingly dismissed. (S.S. SARON) JUDGE July 16, 2009 amit