- (1.) This appeal has been filed against the judgment and decree of the Additional District Judge, Hissar, dated July 31, 1973.
(2.) Briefly the facts of the present case are that the plaintiff and one Lekh Ram are owners of adjoining fields which are irrigated from outlet at R.D. No. 74484/64404-R Balak Minor. A water course has been provided for the irrigation of the aforesaid fields. A Jhallar was installed by the plaintiff for irrigation of his fields which is one kila away from the main water-course. Lekh Ram moved an application before the Divisional Canal Officer requesting him that he should get the Jhallar of the plaintiff removed as it had obstructed the water course. He issued a notice under Section 30-FF of the Northern Indian Canal and Drainage Act, 1873 (hereinafter referred to as the Act) ordering him to remove the same. The plaintiff submitted two objection petitions, one on January 1, 1969 and the other on January 10, 1969 before the Divisional Canal Officer stating therein that the notice issued by him under Section 30-FF was without jurisdiction and the same be revoked. The objection petitions have not been decided by him uptill today. In the meantime he sought the help of the police for removal of the Jhallar. The plaintiff filed an appeal against his order on March 19, 1969 to the Superintending Canal Officer which was dismissed on April 23, 1969. After the dismissal of the appeal he instituted the present suit and prayed for permanent injunction restraining the State from interfering in his Jhallar on the ground '.that the Divisional Canal Officer had no jurisdiction to issue the notice under Section 30-FF. The suit was contested by the defendant inter alia on the ground that the Civil Court had no jurisdiction to try the suit. The trial Court held that the Civil Court had jurisdiction to try the suit and that the Jhallar created no obstruction in the water course in question. Consequently, it decreed the suit of the plaintiff. The defendant went up in appeal before the Additional District Judge, Hissar who held that the Civil Court had no jurisdiction to try the suit. He also held that the plaintiff was not entitled to injunction sought for. He, therefore, accepted the appeal and dismissed the suit of the plaintiff. He has come up in appeal against the judgment and decree of the Additional District Judge to this Court.
(3.) It is contended by the learned counsel for the appellant that the Divisional Canal Officer had not proceeded in accordance with the provisions of Section 30-FF and, therefore, the order passed by him is without jurisdiction. He further urges that in case the order of a Tribunal is without jurisdiction, then he can challenge its order in a Civil Court even though its jurisdiction is specifically barred. In order to determine this question, it is necessary to reproduce sub-sections (1), (2) and (4) of Section 30-FF and Section 30-G of the Act, which are as follows :- "(1) If a person demolishes, alters, enlarges or obstructs a watercourse or causes any damage thereto, any person affected thereby may apply to the Divisional Canal Officer for directing the restoration of the water course to its original condition. (2) On receiving an application under sub-section (1) the Divisional Canal Officer may, after making such enquiry as he may deem fit, require by a notice in writing served on the person found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore at his own cost, the watercourse to its original position within such period as may be specified in the notice. (3) ... ... ... ... ... ... (4) Any person aggrieved by the order of the Divisional Canal Officer, may prefer an appeal within thirty days of the passing of such order to the Superintending Canal Officer, whose decision on such appeal shall be final. 30-G. Notwithstanding anything contained in this Act or other law for the time being in force, no Civil Court shall have jurisdiction to entertain or decide any question relating to matters falling under Section 30-A to 30-FF." There is no doubt about the proposition that if the Tribunal has not followed the procedure prescribed by law for deciding matters within its competence, then such orders can be challenged in Civil Courts. In this view I am supported by Secretary of State v. Mask & Co., 1940 AIR(PC) 105wherein, it was observed that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It is further held that even if it is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Similar view was taken by the Supreme Court in Dhulabhai etc. v. State of Madhya Pradesh and another, 1969 AIR(SC) 78, wherein principles have been laid down as to when the jurisdiction of the Civil Court is not barred. The relevant observations of their Lordships are as follows :- "Where the statute, gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. An exclusion of jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply." The next question that arises for determination is as to whether the Divisional Canal Officer has not complied with any of the statutory provisions at the time of issuing the impugned notice dated December 24, 1968, Exhibit D-1. It is not disputed that the Divisional Canal Officer while deciding applications under Section 30-FF acts as a quasi-judicial tribunal. The notice which was given by him is as follows :- "On perusing the application of Shri Lekh Ram son of Sardara resident of Sham Sukh and report of the Ziledar, Nanatari, verified by Sub-Divisional Canal Officer, KishanGarh, Sub-Division Nanatari, it has been found that you have illegally installed a Jhallar in your area, which causes obstruction in the irrigation (of the land) of Lekh Ram, although your this area can be and have been irrigated by Tor (irrigation by flooding i.e. breaking down a dam or the bridges of watercourse). This act of yours is against the rules. Hence, you are hereby informed through this notice that you should remove this Jhallar within a week from the date of issue of this notice failing which proceeding shall be taken against you by imposing special charges and no objection on your behalf shall be entertained.";