- (1.) The petitioners are landowners and right-holders of village Khusropur, Tehsil and District Kapurthala. They have filed the present writ petition and the allegations that the respondents (Executive Engineer (Drainage), Jullundur and Sub-Divisional Officer (Drainage), Kapurthala) want to dig a drain through the land of the petitioners. They came to know of this fact when the employees of the department came to demarcate the alignment of the drain for its digging on April 24, 1967. They approached respondent No. 2 but he told them that the drain was going to be dug under the orders of the higher authorities. According to the petitioners, originally a survey was made on the lands of Lachhman Singh, Dalip Singh and Amar Singh of the village who, being influential persons, managed to get the alignment of the drain changed. Their grievance is that no scheme has been prepared or published under Section 30-A of the Northern India Canal and Drainage Act (8 of 1873) (hereinafter called the Act), and, therefore, the digging of the drain, without such a scheme being prepared or published, is without the authority of law. They have, therefore, sought the relief that the respondents should be restrained from digging the drain through their lands. This writ petition was filed on May 1, 1967, and was admitted on May 31, 1967. The digging operation was stayed till May 15, 1967, for which date notice of the stay application was given. On May 15, 1967, nobody appeared on behalf of the respondents and the learned Single Judge confirmed the stay of digging operations till the decision of the writ petition. The result is, that so far the drain has not been dug.
(2.) The return has been filed by Shri Gurpal Singh Rehal, Executive Engineer, Jullundur Drainage Division, Jullundur, in which it has been pointed out that no action has been taken under the provisions of the Act but the land is being acquired under the provisions of the Land Acquisition Act (1 of 1894). A notification No. Mp. 2703/Floods(3) dated May 24, 1967), under Sections 4 and 17 of the Land Acquisition, was issued and 11.01 Acres of area in Khusropur village was specified for acquisition. The petitioners have not filed any petition questioning the legality or validity of the said notification nor have they said whether the area sought to be acquired covers any land of the petitioners. The petitioners seem to be quite ignorant of this notification.
(3.) The submission of the learned counsel for the petitioners is that the scheme should have been prepared under Section 30-A and published under Section 30-B or 57 of the Act and that no drainage work could be carried out without a scheme being prepared as required by Section 57 of the Act. I regret my inability to agree to this submission. Section 57 of the Act only applies where the Government wishes to execute some drainage works and the entire cost or a part of it is intended to be recovered from the owners of the land who are to benefit from those works. In case the State Government wishes to execute any works without making any landowner liable for its cost, Section 57 of the Act does not apply. The land in such a case can be acquired under the provisions of the Land Acquisition Act as has been done in the instant case. The point is not res integral as a Division Bench of this Court, in Civil Writ No. 1461 of 1963, Bhagat Singh and others v. The State of Punjab and others, decided on May 25, 1964, took the same view. In that case it was submitted by the learned counsel that the State Government had no option to proceed according to the Land Acquisition Act as it was a general Act but it had to proceed according to Part VII of the Act which was a special Act. Repelling this argument, the learned Judges observed as under :- "In so far as the first ground is concerned, it obviously is untenable. Making a drainage so as to meet flood water and also to meet the damage by water-logging is from any consideration apparently a laudable public purpose. To achieve that public purpose respondent 1 has every justification for acquiring land under the provisions of Act 1 of 1894, when, although there is benefit to villages through which such a drain passes the total expense for it is borne by the State Government. The learned counsel for the respondents has drawn our particular attention to the provisions in Sections 57 to 62 of Act 8 of 1973, which provisions enjoin State Government in the event of its carrying out drainage-works to first prepare a scheme, then publish it and provide in it a statement of the proportion of such cost which it will defray with a schedule of the lands which it is proposed to make chargeable in respect of the scheme. Part of the cost is borne by the State Government and the rest is borne by the landowners. There is a provision (section 60) for the recovery of the cost falling on the landowners as arrears of land revenue. It is obvious that these provisions of Act 8 of 1873 are more onerous and burdensome to the landowners, through whose land a drainage passes, because such landowners or others in the vicinity are made to pay at least part of the cost of the drainage-work. Instead of getting compensation for their land coming under the drainage-work, they have to pay part of the cost of the same. No doubt payment of it may be in terms of land, labour or cash, as provided in Section 59(2), but there is this burden that has to be borne by such persons. The contrary, when land is acquired for this purpose in accordance with the provisions of Act 1 of 1894, the State Government pays compensation for the same to the landowners, and makes a drain at State expense for the benefit of not only the persons through whose fields the drain passes but also for the benefit of the area amenable to floods and waterlogging. So that it is more advantageous to those in the position of the petitioners in each one of these petitions that proceedings are taken in such cases in accordance with the provisions of Act 1 of 1894. The State Government has obviously power to proceed under the one or the other of the two Acts. There is no question of a special Act, as it is contended by the learned counsel that Act 8 of 1873 is, coming in competition with the general Act as Act 1 of 1894. The reason is that the object and the purpose and the procedure provided by Act 1 of 1894 are quite different and apart from those in Act 8 of 1873. Although to an extent the approach in either Act may overlap the approach in the other, but the two Acts do not completely overlap and, therefore, the question of any competition between them does not arise. So that this argument cannot be accepted that the State Government is compelled in a case like the present to proceed under the provisions of Act 8 of 1873 and has not the power to proceed under the provisions of Act 1 of 1894. It has undoubted power to proceed according to one or the other of these two Acts. These Acts do not necessarily cover the same ground in relation to the same purpose.";