JUDGMENT
N.K. Sodhi, J.
1. Petitioners are owners in possession of area comprised in killa No. 25 of Rect. No. 120 and Killa No. 5 of Rect. No. 164 in village Damdama Tehsil Rania District Sirsa as shown in brown colour in the site plan Annexure P1 with the writ petition. Respondents Nos. 1 to 3 are owners of area in Killa No. 24 of Rect. No. 120 and Killa No. 4 of Rect. No. 164 as shown in green colour in the site plan. It is alleged by the petitioners that their area and that of the private respondents had been receiving irrigation from the watercourse which is shown as ABC in the site plan for the last more than 32 years. It is further alleged that the land of the petitioners was receiving irrigation from the branch watercourse BD which too had been running at site for the last more than thirty years. According to the petitioners, the private respondents dismantled the watercourse BD on 8-12-1994 cutting off the supply of water to the holding of the petitioners. Petitioners moved an application on 9-12-1994 before the Sub Divisional Canal Officer under Section 24(1) of the Haryana Canal and Drainage Act, 1974 (for short the Act) for restoration of the demolished watercourse. The application was marked to the Ziledar for inquiry. He inspected the site of the watercourse on 13-12-1994 and after recording the statements of the share holders found that the watercourse BD had been dismantled. He, therefore, found the request for restoration genuine and accordingly made a recommendation to the concerned officer for its restoration. A copy of this report which is on the record of the authorities below is Annexure P3 with the writ petition. Petitioners also placed on record relevant extracts from the khasra girdawris from Kharif 1982 to Rabi 1987 showing that a gairmumkin water-course was running over 9 marlas of the land in Rect. No. 120 Killa No. 24. Extracts from the Khasra girdawris from Kharif 1987 to Rabi 1992 and Kharif 1992 to Kharif 1994 were also placed on record in support of the plea that a watercourse was running as alleged by the petitioners. A copy of the extract from the jamabandi for the year 1991-92 has also been placed on the record to show that there was a gair mumkin khal as claimed by the petitioners. The private respondents instituted a suit in the Court of Sub-Judge, Sirsa seeking to restrain the petitioners from digging a watercourse in their land and in that suit a Local Commissioner was appointed to inspect the site and to report whether the watercourse BD existed at the site as claimed by the petitioners who were defendants in the suit. One Dayal Singh, Advocate was appointed the Local Commissioner and he submitted his report dated 3-1-1995 observing that the watercourse had been dismantled and that the same was in existence in the past. A copy of this report was also placed before the Sub-Divisional Canal Officer in support of the application for restoration filed by the petitioners. This application was taken up for consideration by the Sub-Divisional Canal Officer on 5-1-1995 after he had inspected the site on 31-12-1994. Without referring to the documentary evidence produced by the petitioners the Sub-Divisional Canal Officer came to the conclusion that there was no watercourse existing as alleged by the petitioners and the question of its being demolished did not arise. He accordingly dismissed the application. Feeling aggrieved by this order, the petitioners filed an appeal before the Divisional Canal Officer, Sirsa. The Appellate Authority noticed the documentary evidence which was produced by the petitioners in support of their plea but without discussing the same dismissed the appeal on 4-5-1995 with the following observation :
“Case examined throughouly, Khaka plan and other record seen. Parties heard in detail. Site was inspected in the presence of parties. It is revealed that waterchourse BD is not a sanctioned watercourse and it was also not established that this watercourse has run for at least six months before the date of demolition. From the site inspection, it was observed that alternative source of irrigation is available to the area in question and there is no damage to the crops.
The decision of the Sub-Divisional Canal Officer is upheld and appeal of Shri Joginder Singh is hereby rejected.”
2. Petitioners then filed civil writ petition
9145 of 1995 in this Court challenging the
orders of the Sub-Divisional Canal Officer as
also of the Divisional Canal Officer. The writ
petition was allowed on 28-8-1996 and after
quashing the orders impugned therein and
remanding the case to the Sub-Divisional
Canal Officer, this Court made the following
observations :
“After going through the record of the writ petition and hearing learned counsel for the parties, we are of the opinion that the authorities below disposed of the application for restoration of the watercourse in a perfunctory manner and without application of mind. Some documents have been produced on the record of this case in the shape of Annexures P1 and P5 to P8 which prima facie show that there existed a watercourse from where the petitioners had been drawing water for Killa numbers in their possession and support the contention of the petitioners. None of these documents were taken into consideration by the authorities below while coming to the conclusion that the watercourse did not exist at the site. The Ziledar who inspected the site at the earliest opportunity found that the watercourse had been dismantled. The spot inspection thereafter was not of much importance and the authorities seem to have been swayed by the impressions gathered by them at the time of their spot inspection for declining the relief to the petitioners. No document was referred to for declining the relief. Moreover, the provisions of Section 15 of the Haryana Canal and Drainage Act had also not been kept in view while disposing of the matter. In that view of the matter, we allow this writ petition quash the impugned orders and direct the authorities to decide the matter afresh in accordance with law after affording an opportunity of being heard. Parties through their counsel have been directed to appear before the Sub-Divisional Canal Officer on 23-9-1996.”
3. After remand the Sub-Divisional Canal Officer again took up for consideration the application filed by the petitioners for restoration of the demolished watercourse. He relied on the statements of the respondents to hold that no watercourse existed as alleged by the petitioners and without referring to the documents produced before him again dismissed the application holding that Section 24(2) of the Act did not permit the restoration of the watercourse. This officer did not record any positive finding that the watercourse did not exist though it was observed in passing that warabandi record showed that the turn of Joginder Singh petitioner was without watercourse and, therefore, the watercourse could not be restored. Petitioners again filed an appeal before the Divisional Canal Officer, Sirsa who by his detailed order dated 30-5-1997 dismissed the same. He referred to some of the documents produced by the parties and observed that they were confusing and over lapping and also observed that the lands of the petitioners and the respondents lay in the tubewell belt where number of private tubewells had been installed for irrigation and, therefore, there was not much of a demand for canal water. It is against this order of the Divisional Canal Officer upholding that of the Sub-Divisional Canal Officer that the present petition has been filed under Article 226 of the Constitution for the issusance of a writ of certifiorari for quashing these orders.
4. We have heared counsel for the parties and, in our opinion, the writ petition deserves to succeed. The Sub-Divisional Canal Officer and the Divisional Canal Officer had both dismissed the application for the restoration of the dismantled watercourse holding that the same did not exist at the site. This Court while allowing civil writ petition 9145 of 1995 had set aside those orders and a specific direction was given to the authorities to consider the documents which the petitioners had placed on the record showing the existence of the watercourse BD at site. It is unfortunate that the Sub-Divisional Canal Officer even after remand did not consider those documents and stuck to the finding given by him in his earlier order. The Sub-Divisional Canal Officer in appeal had the audacity to insinuate that this Court had not made correct observations while remanding the case to the authorities below. He too did not consider the effect of the documents which the petitioners have placed on the record and without applying their mind both the officers have disposed of the application in a perfunctory manner. There is on record the report of Ziledar dated 13-12-1994 who inspected the site soon after the whatercourse BD is alleged to have been dismantled. He found that the watercourse was in existence and had been dismantled. Not only this, there are khasra girdawaris on the record which show that the watercourse existed from Kharif 1982 till Kharif 1994. Copy of jamabandi for the year 1991 -92 also supports the version of the petitioners that a gairmumkin khal was in existence at the side. Coupled with all these documents is the report of the Local Commissioner submitted by an Advocate who inspected the spot under directions of the Court in which the respondents had instituted a suit. That report also goes to show that some watercourse did exist at the site before it was dismantled. A perusal of these documents leaves no manner of doubt that it stands proved that the branch watercourse BD existed at the site. Now when it is not there, the obvious inference is that it had been dismantled and there is thus no reason why the same should not have been directed to be restored. The fact that it was not a sanctioned watercourse is wholly irrelevant because the petitioners claim the watercourse by prescription in terms of Section 2(15) of the Act. As already observed, the impugned orders were passed without proper application of mind and without considering the effect of the documents produced by the petitioners which clearly supports the case set up by them. The orders passed by the Sub-Divisional Canal Officer as also by the Divisional Canal Officer are not based on the material on record but are contrary to the same and cannot, therefore, be sustained, 5. In the result, the writ petition is allowed, the impugned orders dated 22-11-1996 and 30-5-1997 set aside. Application filed by the petitioners for restoration of the demolished watercourse is allowed and respondents No. 1 to 3 are directed to restore the same at their own cost within twenty one days from the date of receipt of a copy of this order. In case they fail to restore the same, it shall be open to the petitioners to approach the Sub-Divisional Canal Officer for appropriate orders under Sub-section (3) of Section 24 of the Act. Petitioners will have their posts which are assessed at Rs. 2,000/-.
