SHIETLA DIN Vs. EXECUTIVE ENGINEER
LAWS(ALL)-1971-1-9
HIGH COURT OF ALLAHABAD
Decided on January 18,1971

SHIETLA DIN Appellant
VERSUS
EXECUTIVE ENGINEER Respondents




JUDGEMENT

- (1.)THIS is a petition under Article 226 of -the Constitution of India.
(2.)THE petitioners, seven in num ber, are all residents of village Sarivanwan, in the district of Pratapgarh. The petitioners' allegation is that in the month of August, 1965. the right bank of Allahabad Branch of Sharda Canal was breached at a point about six furlongs away from village Sariyanwan. The breach is attributed by the petitioners to the negligence of the Canal Department as a result of which crops worth several hundreds were damaged of four villages including the village Sarivanwan by the gushing water which entered into the fields at great pressure. The petitioners state that they met the local M. L. A. and also Assistant Engineer Incharge of the Canal Sub-Division at Tehsil Kunda and sent written representations claiming damages and compensation for the loss caused to their crops. It has further been alleged that in the meantime the Canal authorities reported the matter to the police and in the first information report lodged on 14th August. 1965. by the Assistant Engineer four persons were named, who were suspected to have caus ed the breach. None of the petitioners was among the four persons named in the first information report. It has further been alleged that the police made enquiries and submitted a final report on September 12, 1965, which was accepted by the Judicial Magistrate on December 28, 1965, However, while the matter was under investigation at the hands of the police the canal authorities took action under Sections 34 and 35 of the Northern India Canal and Drainage Act and by a common order dated 12-11- 1965 levied varying amounts on several persons by way of charges for the unauthorized use of water and penalties. The amounts demanded from the peti tioners are set out in paragraph 7 of the writ petition. The amounts were sought to be realised through the Tehsildar. Tehsil Kunda. The opposite party No. 3.
The petitioners allege that the levy of water charges and the penalty is illegal and so is its recovery. From the counter-affidavit of Sri Gur Prasad filed on behalf of respondent Nos. 1 to 4 it appears that the Canal Department attri buted the breach not to any negligence on the part of the canal department, but to deliberate act on the part of the villagers who wanted to irrigate their paddy field in an unauthorised manner.

(3.)LEARNED counsel for the peti tioner has raised two contentions. His first contention is that the impugned order was passed without conducting the en quiry contemplated by Section 34 and without affording an opportunity to the petitioners of being heard. The impugn ed order, according to the learned coun sel, is contrary to the statutory provi sions and offends against principles of natural .justice. The second contention raised by the learned counsel is that Sec tions 34 and 35 of the Northern India Canal and Drainage Act are constitu tionally invalid being violative of Arti cles 19 (1) (f) and (g) and 31 of the Con stitution of India. In support of this submission he has placed reliance upon a decision of a Divi sion Bench of the Patna High Court in Ajablal Mandal v. State of Bihar. AIR 1956 Pat 137. Learned Standing Counsel appearing on behalf of the opposite parties submits that the order was passed after holding an enquiry under Section 34 and that Sections 34 and 35 of the Northern India Canal and Drainage Act are not constitutionally invalid.


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