SHAM LAL Vs. STATE

JUDGEMENT

(1.) AT issue in this writ petition is the constitutional validity of Sec. 74 of the J&K Irrigation Act, 1978. The ground of attack is that the impugned provision confers arbitrary powers on a Canal Officer to remove encroachments from irrigation works without complying with principles of natural justice. It is contended that there is no provision for appeal, review or revision against such an order. It is further submitted that Sec. 95 clearly bars the institution of any suit for getting such an order of the Canal Officer set aside. It is also urged that Sec, 74 is violative of Article 19 (f) of the Constitution of India in so far as it abridges the fundamental rights of the petitioner to hold property. We have gone through the writ petition and have heard learned counsel for the parties at length. We do not find any merit in the submissions.

(2.) IT is true that there is no provision for appeal, review or revision against the orders of Canal Officer passed under Sec. 74. However, Sec. 95 does not bar the filing of a suit by an aggrieved person. Section 95 reads as under: "95. Bar of certain proceedings etc.: - (1) No suit, prosecution or proceeding shall lie against any officer or servant of the Government for any act done or purporting to be done under this Act without the previous sanction of the Government. (2) No officer or servant of the Government shall be liable in respect of any such act in any civil or criminal proceeding if the act was done in good faith in the course of the execution of duties or the discharge of the functions imposed by or under this Act. (3) Save as otherwise provided in this Act, no suit shall be instituted against the Government in respect of any act done unless the suit is instituted within one year from the date of the act complained of."

(3.) IT is clear from a perusal of the above provision that certain type of proceedings have been barred. The object of the section seems to us to be that before any suit, prosecution or proceeding is filed against any officer or servant of the Government for any act done or purported to be done under the Act, previous sanction of the Government has to be obtained. A protection has been granted to the officers and servants discharging their duties under the Act from frivolous and vexatious proceedings. However, Sec. 95 does not bar a suit challenging the legality and validity of an order passed by a Canal Officer under Sec. 74. Any person aggrieved by orders passed by a Canal Officer under Sec. 74 ibid can file a suit against the said order.