CWP No.6298 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.6298 of 2009 Date of Decision: 25.10.2010 Kitab Singh and another .....Petitioners Vs. Chief Canal Officer, BWSU, Haryana Irrigation Department, Panchkula and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. R.S. Tacoria, Advocate for the petitioners. Ms. Shruti Jain, AAG, Haryana, for respondents no.1 and 2. Mr. Bikram Chaudhary, Advocate for respondent no.3. .... RAJIVE BHALLA, J (Oral) The petitioners pray for issuance of a writ in the nature of Certiorari for setting aside orders dated 8.2.2008, 2.1.2009 and 20.1.2009, passed by the Superintending Canal Officer, Bhakra W/S Circle, Kaithal, the Chief Canal Officer, BWSU, Irrigation Department, Haryana Sinchai Bhawan, Panchkula and the Chief Canal Officer BWSU, Irrigation Department, Haryana, Panchkula, respectively. Counsel for the petitioners submits that the Divisional Canal Officer, prepared a scheme for allotting an outlet at RD 6300-R. The scheme was duly published but as no objections were filed by any co-sharer, the Divisional Canal Officer approved the proposed outlet at RD 6300-R for an area of 160/128 Acres. Respondent no.3 filed a time barred appeal CWP No.6298 of 2009 2 before the Superintending Canal Officer without impleading the petitioners, who passed an order shifting the outlet from RD-6300-R to RD- 6800-R, on the basis of consent of co-sharers, who were arrayed as parties in the appeal. The impugned order is null and void, as it adversely affects the petitioners but has been passed without affording an opportunity of hearing to the petitioners. Counsel for the private respondents, however, submits that as the petitioners' co-sharer namely, his brother was arrayed as a party in the appeal, the petitioners have no independent right to claim a hearing before the Superintending Canal Officer. It is further submitted that as the appeal filed by the petitioners before the Chief Canal Officer was dismissed as barred by time, the writ petition should also be dismissed. I have heard counsel for the parties and perused the impugned orders. As is apparent from the order passed by the Divisional Canal Officer, an outlet was sanctioned at RD 6300-R, as the co-sharers were satisfied with the proposed arrangement and, therefore, did not file any objection. The private respondents filed an appeal by impleading a few of the co-sharers, but without impleading the petitioners. The Superintending Canal Officer accepted the appeal and ordered the shifting of the proposed outlet from RD 6300-R to RD 6800-R, on the basis of an agreement between co-sharers, who were arrayed as parties before him. The Superintending Canal Officer made no attempt to serve other co-sharers, who were likely to be affected by the change in the proposed location of RD 6300-R. The order passed by the Superintending Canal Officer, on consent of a few of the co-sharers and without making an attempt to implead the CWP No.6298 of 2009 3 petitioners, is a nullity. The original order shifting the outlet to RD-6300-R was passed for the benefit of all co-sharers. Before passing the impugned order on consent, the Superintending Canal Officer should have issued notices to all parties likely to be affected by the proposed agreement between the co-sharers arrayed before him. The failure of the Superintending Canal Officer, to issue any notice to the other co-sharers, including the petitioners renders the impugned order null and void. In so far as dismissal of the petitioners' appeal as time barred by the Chief Canal Officer , suffice it to state that the Chief Canal Officer should have in view of a fundamental error of jurisdiction committed by the Superintending Canal Officer entertained the appeal and rectified this error. In view of what has been stated herein above, the writ petition is allowed, the orders dated 8.2.2008 and 2.1.2009 and 20.1.2009 are set aside and the matter is remitted to the Superintending Canal Officer, Bhakra W/S Circle, Kaithal, to decide the appeal afresh, in accordance with law, within three months from the receipt of a certified copy of this order. Parties are directed to appear before the Superintending Canal Officer, Bhakra W/S Circle, Kaithal, on 7.12.2010. 25.10.2010 (RAJIVE BHALLA) GS JUDGE