RSA No. 1242 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1242 of 1985 Date of Decision: 12.07.2010 1. State of Haryana through Collector, Hisar. 2. Divisional Canal Officer, Tohana Division, Tohana. ... Appellants Versus 1. Puran Chand; 2. Ramesh Chand; sons of Sh. Chhinkoo Ram Arora, residents of V. Bhirrana, Tehsil Fatehabad, District Hisar. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Kulvir Narwal, Additional Advocate General, Haryana, for the appellants. Respondents exparte. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 01.12.84, rendered by the Court of Additional District Judge, Hisar, vide which, it accepted the appeal, against the judgement and decree dated 02.11.82, rendered by the Court of Sub Judge 1st Class, Fatehabad, dismissing the suit. 2. The facts, in brief, are that, in the year 1964, an agreement with regard to special supply of water for irrigation for the area of RSA No. 1242 of 1985 2 garden for 18 acres of land, situated in village Bhirdana, Tehsil Fatehabad, was entered into between the father of the plaintiffs (now respondents) namely Chhinku and the Government of Punjab. It was stated that, as per the agreement aforesaid, the plaintiffs, were deriving water for irrigation of their orchard aforesaid, through outlet R.D. 85627-R Birdana Distributory of Tohana Division. It was further stated that, the defendants, after many years of the agreement coming into existence, imposed six times penalty, on the plaintiffs, vide different orders, for unauthorizedly using the canal water, for irrigation of agricultural land for crops of Rabi 67-68, Kharif 68, Rabi 68-69, Kharif 69, Rabi 69-70 and Rabi 70-71. It was stated that the orders were interalia illegal, void and inoperative against the rights of the plaintiffs, on the grounds, that the same were passed after a period of 6 to 8 years, when the matter had become stale; and the same were non- speaking. The defendants, were many a time asked, to desist, from recovering the penalty, on the basis of the impugned orders but to no avail. Ultimately, a suit for declaration and permanent injunction was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the Civil Court, had no jurisdiction, to entertain and try the suit. It was further pleaded that the plaintiffs, were estopped, from filing the suit, by their own act and conduct. It was further pleaded that the suit, was not maintainable. It was stated that RSA No. 1242 of 1985 3 the imposition of six times penalty, on the plaintiffs, was quite, in order, and, within the limits of the agreement. It was further stated that, the orders impugned, were legal and binding, on the plaintiffs. It was further stated that, the plaintiffs, never informed the concerned Department, regarding the sowing of crops, in the land, in dispute. It was further stated that, the provisions of Rule 33-A of the Northern India Canal and Drainage Rules, 1878, are not mandatory and were not required to be followed, in such cases, as unauthorized use of canal water, took place throughout the crop, at the discretion of the consumer, but, the whole position, was assessed once, at the end of the crop. It was further stated that, the orders impugned, were passed, after due application of mind. It was further stated that, before passing the orders impugned, the plaintiffs, were allowed to inspect the record and full opportunity, was afforded, to them, to defend their case. It was further stated that, during the course of recovery proceedings, the statement of the father of the plaintiffs, was recorded, who himself, admitted that, the crops, were standing, on the land, as alleged in the Tawan cases, and, he requested that, he should be forgiven. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the impugned orders passed by the Divisional Canal Officer, referred to by the plaintiffs in their plaint, are illegal, void, and not binding on the plaintiffs? OPP RSA No. 1242 of 1985 4 (ii) Whether this Court has got the jurisdiction to try this suit? OPP (iii) Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP (iv) Whether the suit is maintainable in the present form? OPP (v) Whether the plaintiffs are estopped from filing the present suit? OPD (v-A)Whether the amount, in dispute, is recoverable as arrears of land revenue, if so, what is the effect of non-deposit of the amount before filing the suit? OPD (v-B) Whether the suit is not maintainable as alleged in para No. 3-A of the preliminary objection in the written statement? OPD (vi) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal, was preferred by the plaintiffs (now respondents), which was accepted, by the Court of Additional District Judge, Hisar, vide judgement and decree dated 01.12.84. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellants. 8. I have heard the Counsel for the appellants, and, have gone through the evidence and record of the case, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- RSA No. 1242 of 1985 5 Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, that the orders impugned, rendered by the Divisional Canal Officer, imposing six times penalty for allegedly unauthorisedly using the canal water for irrigation of crops of Rabi 67- 68, Kharif 68, Rabi 68-69, Kharif 69, Rabi 69-70 and Rabi 70-71, were illegal, void, and inoperative against the rights of the plaintiffs, as also violative of the principles of natural justice? 10. The Counsel for the appellants, submitted that the orders impugned were passed by the Divisional Canal Officer, under The Haryana Canal & Drainage Act, 1974, and, Rule 26 of The Haryana Canal & Drainage Rules, 1976, for unauthorized use of water. He further submitted that, no doubt, the plaintiffs (now respondents), were found using unauthorizedly the canal water for irrigation of crops of Rabi 67-68, Kharif 68, Rabi 68-69, Kharif 69, Rabi 69-70 and Rabi 70- 71, yet, their case for the purpose of imposition of penalty was dealt with, under The Haryana Canal & Drainage Act, 1974, as the orders impugned, were passed, after the repeal of Northern India Canal and Drainage Act, 1873, and, the Northern India Canal and Drainage Rules, 1878. He further submitted that, even if, it was assumed, that the case of the plaintiffs, for unauthorized use of canal water for irrigation of their crops, for the aforesaid period, was required to be dealt with, under the Northern India Canal and Drainage Act, 1873, and the Rules framed thereunder which were in vogue, at the relevant time, then the corresponding Rule 33, in the said Rules, for imposition of penalty for RSA No. 1242 of 1985 6 use of water unauthorizedly, being in existence, the penalty, could very well be imposed thereunder. He further submitted that, an appeal, against such orders, could be preferred, to the Commissioner, but, the respondents, did not prefer the same. He further submitted that the orders impugned, imposing penalty, were passed, after compliance of the mandatory provisions of the Act and the Rules, and, as such, were not illegal and void. He further submitted that the first Appellate Court, was wrong, in coming to the conclusion, that these orders, were illegal, void and inoperative against the rights of the appellants, on the grounds, that the notices for imposition of such penalty, were given, in 1975 and 1976, though, the alleged violation related to the period for more than six to eight years earlier; and that the same were non- speaking. He further submitted that the judgement and decree of the first Appellate Court, being perverse, are liable to be set aside. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, in my considered opinion, the appeal, is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate RSA No. 1242 of 1985 7 Court, even if, the same are grossly erroneous, as the legislative intention, was very clear that the Legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgement of the first Appellate Court, is confined only to the hearing of substantial questions of law. From the record, it was proved, that Chhinku, father of the appellants and the State Government, entered into an agreement DW4/A (copy P1) dated 19.05.64, for special supply of water for fruit orchards. As per Clause 1 of this agreement, it was provided, that the use of supply for the purpose, other than for the fruit orchards, would be considered an unauthorized irrigation under Rule 33 of the Northern India Canal and Drainage Rules, 1878, framed under the Northern India Canal and Drainage Act, 1873, and, penalty would be imposed. Since the alleged violation for use of canal water unauthorizedly for irrigation related to the crops, other than orchards, provided in the agreement aforesaid, for Rabi 67-68, Kharif 68, Rabi 68-69, Kharif 69, Rabi 69-70 and Rabi 70-71, certainly, the provisions of the Northern India Canal and Drainage Act, 1873, and, the Northern India Canal and Drainage Rules, 1878, were applicable, and not the provisions of The Haryana Canal & Drainage Act, 1974, and, The Haryana Canal & Drainage Rules, 1976, which came into existence much later than the date of alleged violation. For the facility of reference, provisions of Rules 33 and 33-A of the Northern India Canal and Drainage Rules, 1878, are extracted as RSA No. 1242 of 1985 8 under:- “33. Charge leviable for canal water used in an unauthorized manner or suffered to run to waste:- Persons using canal water in an unauthorized manner or suffering it to run to waste shall be chargeable with a special rate in the same manner and at the same rates as prescribed under Rule 32 : Provided that in every case the Collector may impose a lower charge, if he thinks fit and provided further that this charge may be made for each distinct and separate occasion on which water is so used. If the person or persons using water in an unauthorized manner or suffering it to run to waste cannot be identified, the persons chargeable shall be determined in accordance with the provisions of Section 33 or 34 of the Act as the case may be. For the purpose of this as well as the preceding Rule, the area shall be measured up as soon as possible and the persons chargeable with the special rate having been determined, notice shall at once be given tot hem on each such occasion that they will be charged accordingly in the demand statement for the area thus watered. The special rate shall be in addition to such penalties as may be imposed under Section 70 of the Act. 33-A :- (1) The Divisional Canal Officer shall within 48 hours of the receipt of any information that the water supplied through a water-course is being used in an unauthorized manner under Section 33 or is suffered to run to waste under Section 34, inform the Collector in writing giving the date, time and place of such use or waste of water and all other information relevant thereto. RSA No. 1242 of 1985 9 (2) The Collector shall, on receipt of such information, institute a summary inquiry for determining, if possible, the persons responsible for the unauthorized use or waste and thereafter proceed to determine under Sections 33 and 36 of the Act the charges to be levied and the persons against whom such charges are to be levied. The Collector shall give to the parties concerned due notice of date, time and place of hearing in the manner prescribed under Rules 79-A to 79-I. In case of failure of any of the parties to attend inspite of service of notice the Collector shall take exparte proceedings and give his decision after recording such evidence as may be produced or such further evidence as he may deem necessary.” 12. The question arises, as to whether, before imposition of penalty, the mandatory provisions of Rules 33 and 33-A of the Northern India Canal and Drainage Rules, 1873, were complied with by the Divisional Canal Officer, or not. According to Rule 33-A, the Divisional Canal Officer, within 48 hours, on receipt of information about unauthorized use of water, was required to intimate the Collector, in writing, giving the date, time and place of such unauthorized use of water. In the instant case, however, there was complete violation of the mandatory provisions of the Rule. In the instant case, notices for unauthorized use of water, were given, by the defendants (now appellants), to the plaintiffs (now respondents), at a very belated stage. It is evident, from the record, that notice DW/1/M, for the crop of Rabi 67-68, was given, on 15.07.75, notice D3, for the crop of Kharif 68, was given, on 10.10.76, notice DW/1/C, for the crop of Rabi RSA No. 1242 of 1985 10 68-69, was given, on 15.07.75, notice DW/1/F, for the crop of Kharif 69, was given, on 15.07.75, notice DW/1/G, for the crop of Rabi 70-71, was given, on 25.09.76, and, notice DW/1/H, for the crop of Rabi 69-70, was given, on 20.10.76. Varun Singh, Tehsildar, was posted, as Zaildar, Fatehabad, at the relevant time. He appeared, as DW2. In his cross-examination, it was admitted by him, that the khasras, were preserved upto the period of five years and sometimes for an excess period. He admitted that, during the standing crops or immediately after the harvesting of crops, he did not recommend the Tawan against the plaintiffs/respondents. It means that the Tawan cases, were prepared, after the khasras, were destroyed. Khasra of every crop, is prepared, after due checking, at the spot. Harbans Singh, DW3, brought the khatouni register. He stated that, he destroyed the khasras of the said crops, vide the order dated 24.06.78 of the Divisional Canal Officer. However, his cross-examination showed that, the Divisional Canal Officer, never passed any order, that the amount, in question, be included, in the Tawan Khatounis. Om Parkash, the then Divisional Canal Officer, who passed the impugned orders DW5/A to DW5/F, appeared as DW5. These orders were on printed forms. Even the stray entries in hand, in these forms, were admittedly not made by him, nor, he knew, as to who had filled the columns of the impugned orders on the printed proformae. Even, he did not put the dates under his signatures, while passing the impugned orders. He admitted, during the course of his cross-examination, that the notices for imposition of RSA No. 1242 of 1985 11 penalty for unauthorized use of water for various crops, were given, after more than five years in each case. Had the notices been given, to the plaintiffs, immediately, when they were allegedly found unauthorizedly using the canal water for irrigation of their crops, they would have certainly been able to defend their case properly, showing that, they did not commit violation of any Rule. However, it could not be expected of the plaintiffs, to put up their proper defence, that too, after a period ranging between five to eight years, when the notices for penalty were issued, to them, as the things, had become stale by that time, and, even the relevant record of the defendants, had been destroyed, as stated above. The mere fact, that the orders impugned, were on the printed proformae, and, even the stray entries, made therein, in hand, were not by the Divisional Canal Officer, in itself, was sufficient to prove, that there was complete non-application of mind, to the facts and circumstances of the case, at the time of passing the same. The orders impugned, were, thus, passed after a period of about 6 to 7 years, in a stereo-typed manner, without any material and data. The orders impugned, besides being non-speaking, were also passed against the mandatory provisions of Rules 33 and 33-A of the Northern India Canal and Drainage Rules, 1878, and, as such, the first Appellate Court, was right, in holding that, the same, were illegal, void and inoperative, against the rights of the plaintiffs/respondents. The findings of the first Appellate Court, therefore, are not perverse, and, liable to be upheld. RSA No. 1242 of 1985 12 13. The findings of the first Appellate Court, with regard to the remaining issues, are also based on the correct reading and due appreciation of evidence and law, on the point. The careful perusal thereof, does not bring out any illegality or perversity therein, warranting the interference by this Court. The findings of the first Appellate Court, with regard to the remaining issues, being correct, are also affirmed. 14. No other point, was urged, by the Counsel for the appellants. 15. The substantial question of law, depicted above, is answered, against the appellants. 16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 12.07.2010 (SHAM SUNDER) Amodh JUDGE