KARAM CHAND Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) The petitioner impugns the order of the Superintending Canal Officer dated June 6, 1978 (Annexure P.3) whereby he set aside the order of the Divisional Canal Officer passed in favour of the petitioner. The case of the petitioner is that his and respondent No. 4's lands lie opposite to each other and are being irrigated from outlet No. 114100-L of Ludluka Branch. According to him, level of his land is a little higher than that of respondent No. 4. He made a move with the subordinate canal authorities to the effect that Nakal water (residue water) be given to him so that he may be able to irrigate his land lying at a higher level. After certain verifications including the spot inspection and securing an affidavit from him to the effect that he would utilise the Nakal water to irrigate the land which was lying at a higher level, these authorities granted the prayer made by him. On a petition by respondents No. 4, the Superintending Canal Officer has set aside that order holding that there was no justification to change the Warabandi and to allow Nakal water to the petitioner merely on the basis of his affidavit. He further found it as a fact that the petitioner had not been irrigating the area which he now claims to irrigate in spite of the said area having been included in the command area. The last mentioned fact is not even being disputed in the petition wherein it is conceded that prior to the order passed by the Divisional Canal Officer the area in question was not being irrigated by him. Now the learned counsel for the petitioner challenges order Annexure P.3 on two grounds - firstly, the Superintending Canal Officer has given no reasons for setting aside the order of Divisional Canal Officer and secondly, proper bearing has not been granted to the petitioner.

(2.) So far as the first contention of the learned counsel is concerned, the same has only to be stated to be rejected in the light of the contents of order Annexure P.3. As already pointed out, the Superintending Canal Officer has held that merely on the basis of filing an affidavit by the petitioner before the Divisional Canal Officer there was no justification with the latter to change the Warabandi. This is more so when the petitioner admittedly had not been irrigating that area prior to the passing of the order by the Divisional Canal Officer.

(3.) So far as the second contention of the learned counsel for the petitioner is concerned, his stand is that service was effected on the petitioner through his son only two days prior to the hearing i.e., June 6, 1978. He further contends that as a matter of fact petitioner's son has mentioned on the copy of the summons served on him that his father was not present in the village and was likely to come after some time. The impugned order shows that at the time of hearing, the petitioner's son Bharat Bhushan was present and as per this order he was heard before deciding the merits of the controversy by the Superintending Canal Officer. The counsel further contends that service of summons on Bharat Bhushan cannot be taken as a legal or valid service on Karam Chand Petitioner. I see no merit in this stand of the learned counsel as to my mind service on major male member of the family is good enough a service in the eye of law. This is more so when the son of the petitioner had actually participated in the proceedings and had his say at the time of hearing of his petition by the Superintending Canal Officer.