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--- Art. 201-Writ-Main grounds raised in writ petition relating to non-compliance with "essential provisions" of law-Recording of evidence necessary sometimes in such cases and both parties likely to lead evidence - Civil suit in circumstances competent and an adequate remedy-No ground, held, existed for admission of writ petition-Earlier writ petition having been entertained, can not lead to conclusion that civil suit is not an adequate remedy.

Lekh Ram v. Secretary of State for India-in-Council and another (1897 P R 64 ; Kadir Bakhsh v. Bhagat Ram and others (1888) P R 71 and Writ Petition No. 1340 of 1973 ref.

Azim-ud-Din for Petitioner.

Orders passed by Canal authorities purporting to have acted under the Canal and Drainage Act are under challenge in this writ petition on the basis of contravention of mandatory provisions of some sections falling in Part III thereof (sections 14-30).

2. In reply to the question whether a civil suit in this matter is not competent and if that is so, whether it is not an adequate remedy, learned counsel has cited Lakh Ram v. Secretary of State far India-in-Council and' another (897 P R 64) to contend that civil suit is barred. He has further urged that the earlier writ petition having been entertained in the High Court, this. petition should also be admitted.

3. In the cited case, an earlier ruling of a Division Bench, namely, Kadir Bakhsh v. Bhagat Ram and others (1888 P R 71) was followed. While dealing with a similar question in Writ Petition No. 1340 of 1973, I observed as follows;----

"Learned counsel has cited Kadir Bakhsh v. Bhagat Ram and others to contend that the remedy by way of civil suit is barred, therefore, this writ petition is competent.

(2) Apart from the fact that some questions of fact are involved, learned counsel does not deny that the main grounds in support of the writ petition are that the impugned orders have not been passed strictly in accordance with the provisions of the Act and the rules made thereunder. No doubt in the cited case, it was held that an order passed by a Divisional Canal Officer under

section 20 of Act VIII of 1873 which fully complies with all the requirements of that section is, when confirmed by the Superintend ing Canal Officer, binding in the sense that it is not liable to be called in question in a civil Court. But at the same time it was observed that an exact compliance with all the essential provisions of the section is absolutely necessary to give such finality to the order passed under this section. It was also held that the rule of construction applicable is that the provisions describing the mode in which the thing is to be done are absolute and mandatory and not merely directory. It also needs to be mentioned that in the last paragraph of the judgment it was observed that section 201 clearly contemplates that the proceedings should, in all essentials, follow the analogy of those of a Judicial Court and that "it is quite impossible to hold that the proceedings in the present case in any way answer this description". As a result of this finding it was held that civil suit in that case was not barred. As the main grounds raised by the learned counsel relate to non-compliance with the "essential provisions", therefore, according to the ruling, cited by him civil Court has the jurisdiction. In my view, that remedy is more appropriate in the circumstances of this case.

This petition, therefore, for the above reasons, is dismissed limine.

(3) Learned counsel, requested that it may be clarified that the dismissal of the writ petition shall not bar a civil suit. It is obvious from the above order that it would not bar filing of a suit."

There is no distinguishing feature in so far as the maintainability of the suit is concerned because in this case also the learned counsel has contended that the order impugned in this petition has been passed without the observance of the essential provisions of the Canal and Drainage Act. That being so, according to the ruling in the case of Kadir Bakhsh, the suit is competent.

4. The only other circumstance that the earlier writ petition who entertained in the High Court is no justification for coming to the conclu sion that civil suit is not an adequate remedy. In such like cases, sometimes recording of evidence becomes necessary and it is also likely in the present case that both the parties might have to lead evidence. Moreover, in this context, the heavy and long pendency in the High Court cannot be ignored. In these circumstances, in my view, civil suit being competent and also being an adequate remedy, there is no justification for admitting this petition. The same therefore, is dismissed in limine.

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