CWP No.8813 of 2009 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8813 of 2009 Date of Decision: 09 - 10- 2009 Gram Panchayat, Kanwari and others ....Petitioners v. State of Haryana and others ....Respondents CORAM:HON'BLE MR.JUSTICE T.S.THAKUR, CHIEF JUSTICE HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? *** Present: Mr.M.S.Sindhu, Advocate for the petitioners. Mr.Randhir Singh, Addl. Advocate General, Haryana for the respondents. *** KANWALJIT SINGH AHLUWALIA, J. Eight Gram Panchayats of villages Kanwari, Dhamana, Sultanpur, Mujadpur, Balawas, Gunjar, Nalwa and Bhojraj falling within Block Hansi -I have approached this Court by filing the present petition in public interest praying that Scheme Jamalpur – Seepar – Bohal – Kirawar issued under Sections 17-18(1) of the Haryana Canal & drainage Act, 1974 CWP No.8813 of 2009 [ 2] (hereinafter to be referred as, `1974 Act') and published under Rules 7 and 96 of the Haryana Canal & Drainage Rules, 1976 (hereinafter to be referred as, `1976 Rules') vide Annexure P-6 be quashed along with order of approval Annexure P-7 dated 27.6.2008. A further prayer has been made that consequential notification dated 12.9.2008 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred as, `the Act'), Annexure P-8 and notification dated 18.12.2008, Annexure P-9 issued under Section 6 of the Act to give effect to the Scheme be also quashed. In nutshell, the grievance projected by the petitioners is that Government of Haryana had mooted a proposal to construct a minor out of Sunder Distributory known as Sipper-Jamalpur Minor from RD 0 to 20000 for giving undue benefit of irrigation to respondent No.6 Ram Kishan Fauji, sitting M.L.A. and his nears and dears. As a result thereof, villages of the petitioners – Gram Panchayats, which are situated on the tail end of Sunder Distributory will be deprived of water for irrigation and drinking. Petitioners contend that proposed Scheme be dropped by quashing above said Notifications and Orders attached as Annexures P-6 to P-9. It has also been urged by the petitioners that proposed Scheme is against the provisions of 1974 Act and 1976 Rules. Briefly stated, case of the petitioners is that for utilisation of canal water, Sunder Distributory was provided and many minors were constructed. The villages of the petitioners fall on the tail end and there was already decrease of supply of water every year to the villages of the petitioners. A comparative chart to justify this assertion has been attached with the present writ petition as Annexure P-2. Therefore, a request was made to the Government not to construct new minors on this Distributory, CWP No.8813 of 2009 [ 3] as construction of minor will cause diversion and further reduce supply of water to the villages of the petitioners. Grievance of the petitioners is that State of Haryana, Engineer-in-Chief, Superintending Canal Officer, Yamuna Water Service Circle, Bhiwani, Divisional Canal Officer, Bhiwani Water Services, Bhiwani and Superintending Engineer, Yamuna Water Service Circle, Bhiwani – respondents No.1 to 5 had declined to accept the demand of the petitioners' villages to scrap the Scheme. Therefore, Gram Panchayats of villages Umra, Jamalpur, Sipper, Mujadpur, Balawas, Kanwari and Rohnat held meetings and passed unanimous resolutions of Panchayats calling upon the respondents not to construct new minors from Sunder Distributory, as same will adversely affect these villages. The resolutions passed by the Gram Panchayat have been annexed as Annexure P-3 (Colly). In response to the writ petition, Executive Engineer, Bhiwani Water Services Division, Bhiwani has filed a counter affidavit on behalf of respondents No.1 to 5. The official-respondents have taken a stand that Sunder Sub Branch System of Haryana Irrigation Department is serving the people of District Bhiwani and water was distributed through the outlets from the existing channels by further taking the water through water courses for optimum utilisation of the system. Various minors and distributories are being constructed to decrease the length of these water courses so that there is minimal loss of water in the shape of evaporation and percolation. Length of water courses is being shortened to reduce maintenance cost. To fortify this submission, it has been stated that Rule 13(1) of 1976 Rules provide that length of water course from its head to its points of contact should not exceed three kilometers and in the present case under the CWP No.8813 of 2009 [ 4] Scheme, which has been prepared in the name of Seeper – Jamalpur Minor, length of water course is kept less than one kilometer. The Scheme was prepared after giving full opportunity to all stakeholders under Section 17- 18(1) of the Act. To controvert the apprehension of the petitioners that their villages being at the tail end, the availability of water will be reduced, the following stand has been taken by the respondents in para 2 of the preliminary submissions:- “2. That as explained above the Sipper Jamalpur Mr. was proposed to take the existing discharge of outlets RD 70557-L, 68915-L Sunder Disty and outlet RD 30800-R, 30100-L Bhurtana Minor and outlet RD 10280-L, 10415-L, 13010-L Khanak Minor and in this way the discharge of the petitioner will in no way be effected down stream the off takes points i.e. RD 70530-L Sunder Disty.” It is stated that on receipt of representations of various share- holders of canal water belonging to villages Sipper, Jamalpur and Kirawar of District Bhiwani, a detail survey was carried out observing the technical feasibility, thereafter, the draft scheme was published. In compliance with the rules, stipulated notice of 21 days was given for inviting objections. About 325 objections were received from the share-holders of 19 villages. Out of the total objections received, 200 were in favour and 125 were against the Scheme. All suggestions and objections were recorded, due consideration was given and taking into account technical feasibility as per site condition, the Scheme was recommended on 25.3.2008. The Financial Commissioner sanctioned an amount of Rs.448.19 lacs for the Scheme vide order dated 27.6.2008. The alignment of the Scheme was approved by the CWP No.8813 of 2009 [ 5] Chief Engineer on 21.7.2008. The land acquisition proceedings were carried out and mandatory notifications under Section 4 and 6 of the Act were published. The cost of land amounting to Rs.209.00 lacs was deposited with the Land Acquisition Officer, Hisar for disbursement to land owners whose land was acquired for alignment of the minor. Out of total length of 20000 feet, kacha minor to the extent of 18500 feet has been constructed, minor has been lined up with bricks upto the length of 15500 feet. All bridges and cow ghats numbering four each have been constructed at site by incurring expenditure of Rs.108.00 lacs. Thus, the Department till 1.7.2009 has incurred expense of Rs.307.00 lacs against the total outlay of Rs.448.19 lacs and work at site has been completed to the extent of 75 per cent. The entire project is expected to be completed on or before 31.7.2009. A preliminary objection has been raised that it was in the knowledge of the petitioners that the Project had commenced on 22.2.2008, yet the present writ petition has been filed at a very belated stage on 26.5.2009, after a delay of 15 months. Various documents Annexures R-1 to R-9 have been annexed with the counter affidavit to controvert the averments made in the writ petition. We have heard Mr.M.S.Sindhu, counsel for the petitioners and Mr.Randhir Singh, Additional Advocate General, Haryana. Mr.M.S.Sindhu, counsel for the petitioners has stated that construction of the new minor and re-alignment of Sunder Distributory is not technically feasible due to non availability of sufficient water and the proposed Scheme is in violation of the Government policy, as the villages falling in the tail end of the Distributory shall be further deprived of the CWP No.8813 of 2009 [ 6] water and there shall be substantial reduction in availability of the existing water. Counsel for the petitioners further contended that proposed Scheme is against the provisions of Sections 17,18 and 19 of 1974 Act and 1976 Rules. It was urged that under Section 18 of 1974 Act for allowing a new outlet on the main or branch canal, prior approval of the Chief Canal Officer is required which in the present case, has not been taken and, thus, there is violation of statutory provisions of Section 18 of 1974 Act. Further more, the Scheme has been drawn due to mala fide reasons to promote personal interest of respondent No.6 and his near relations at the cost of Government exchequer and incurring of expense amounting to Rs.448.19 lacs amount to doling out largesses to promote interest of member of legislature belonging to the ruling party. Mr.Randhir Singh, Additional Advocate General, Haryana has submitted that Scheme has been formulated in the public interest for better management and optimum utilisation of the water. The department was guided by the sole concern that water is not wasted. Length of the water course has been reduced to curtail loss of water in the form of evaporation and percolation. The Department for sake of efficient and better management intended to reduce the maintenance cost and, thus, expenses were incurred in the public interest. This argument was advanced to negate the contention of counsel for the petitioners that under Section 19 of 1974 Act, expenses on the Scheme, ought to have been incurred by the share- holders and not by the Government. Mr.Randhir Singh has further submitted that resolutions of village panchayats were considered by the Divisional Canal Officer, Bhiwani. Thereafter, the Scheme was prepared and under the provisions of Section 18 of 1974 Act, same was approved by CWP No.8813 of 2009 [ 7] the Chief Canal Officer and the Government. To fortify this submission, reliance has been placed on Annexures R-IV and R-IX. We are conscious that as per the counter affidavit filed by the official respondents, 75 per cent work of the project has been completed. Out of the total budget outlay of Rs.448.19 lakh, the Government has already incurred expense of Rs.307.00 lakh. Out of the total length of 20000 feet, Kacha Minor to the extent of 18000 feet has been constructed. All bridges and the cow-ghats planned, have been constructed. The amount of Rs.209.00 lakh have been deposited with the Land Acquisition Officer for onward payment to the land-owners, whose land was acquired. At this stage, any interference by this Court will not only render the execution of the scheme, which is near finalization, redundant but all the expenses incurred by the Government and inputs deployed in the form of time, energy and manpower shall go waste. The State has taken a definite stand that the scheme has been perceived, planned and executed for optimum utilization of the water resources, with an object to reduce maintenance cost. We tend to believe this assertion of the State, in the facts and circumstances of the case and from the material placed on record that official respondents have formulated a scheme taking into consideration public purpose and technical feasibility. A Division Bench of this Court in “Jaswant Singh v. State of Haryana” 2007(5) RCR (Civil) 814, while examining the stance of the Government of Haryana to construct a canal to be called “Hansi – Butana canal”, has observed as under: “42. Much was sought to be said about the absence of public purpose. We are constrained to observe that the definition of `public purpose' has travelled a long distance CWP No.8813 of 2009 [ 8] over a period of time. Like shifting sands, it has not remained static. There has to be a harmonious construction of the needs of the public and the policies of the State to enhance and achieve economic, social and over-all development. What is the public purpose is also the satisfaction of the State as it is its duty to undertake development works for the benefit of the society. This is the reason why public purpose constantly changes with the needs of the State and the society and like time never remains static. The action of the State of Haryana, therefore, has to be seen to be forming an umbilical cord between the public policy and the avowed public interest. 44. In so far as the challenge made on the project being technically feasible or not, we are of the opinion that the Court neither has the expertise nor the technical know- how to evaluate the contentions raised by the petitioners on this aspect of the matter. It has repeatedly been held by the Apex Court that the Courts cannot substitute their opinion where the decision making involves technical aspects of the matter. 45. In Balco Employees' Union (Regd.) v. Union of India and others, 2002(2) SCT 12 : (2002)2 SCC 333, their Lordships held as follows :- "In the case of a policy decision on economic matters, the courts should be very circumspect in conducting any enquiry or investigation and must be most reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the court is satisfied that there is illegality in the decision itself." Similarly, in Federation of Railway Officers Association and others v. Union of India, (2003)4 SCC 289, it was observed as under :- "Judicial review of a policy evolved by the Government is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an CWP No.8813 of 2009 [ 9] unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere in such matters." We are of the view that the ratio of law and the observations made by a Division Bench of this Court in Jaswant Singh's case (supra) apply, on all force, in the present case as well. Another Division Bench of this Court in “Chandi Ram v. Chief Canal Officer, Haryana” 1999(3) RCR (Civil) 630 held that the provisions of Section 17 and 18 of the Act are directory in nature and are not mandatory. For saying so, Chandi Ram's case (supra) had relied upon the following observation of a Full Bench of this Court in “Karam Singh v. State of Punjab” 1975(2) S.L.R. 189: "The provisions of a statute creating public duties are directory and those conferring Private rights are imperative. The use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word `may' has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. The distinction between a mandatory provision of law and that which is merely directory is this that in a mandatory provisions there is an implied prohibition to do the act in any other manner while in a directory provision substantial compliance is considered sufficient. In those cases where strict compliance CWP No.8813 of 2009 [ 10] is indicated to be a condition precedent to the validity of the act itself, the neglect to perform it is fatal. But, in cases where although a public duty is imposed and the manner of performance is also indicated in imperative language, the provision is usually regarded as merely directory when general injustice or inconvenience results to others and they have no control over those exercising the duty." Chandi Ram's case (supra) further opined that canal officials, being experts, are competent to decide what is in the best interest of irrigation and utilization of the water resources. As a result of detailed discussion made above, from the facts of the case, law propounded in various judicial pronouncements, we are of the view that there is no merit in the present petition and the same is liable to be dismissed. However, we pass no order as to costs. ( T.S.THAKUR ) ( KANWALJIT SINGH AHLUWALIA ) CHIEF JUSTICE JUDGE October 9, 2009. RC/ rps