IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA, CHANDIGARH
C.W.P.No.8817 of 2006
Date of decision: 18.09.2008
Raghubir Singh
......Petitioner(s)
Versus
Superintending Canal Officer and others
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr. Rakesh Nagpal, Advocate for the petitioner.
Mr. N.S. Virk, Addl.A.G, Punjab for respondents No.1 & 2.
Mr. Jitender Singla, Advocate for respondent No.3.
JASWANT SINGH,J
Petitioner, by filing the present writ petition, has prayed for
quashing order dated 9.3.2006 (Annexure P.2) passed by respondent No.1-
Appellate Authority, whereby the order dated 14.7.2004 passed by the
Divisional Canal Officer, Bathinda-respondent No.2 has been set aside.
The facts in brief are that the petitioner, Raghubir Singh made
an application under Sub Section (1) of Section 30-FF of the Northern India
Canal and Drainage Act, 1873 (hereinafter to be referred as “1873 Act”) for
restoration of the demolished Water Course/Khal depicted as CFG at
Southern side of Field No.323/16/17 belonging to respondent No.3-Sewak
Singh on Walls Wat Water Course/Naka Burji 7972 left minor, for irrigating
his fields through canal water, since the said Khal was demolished by
respondent No.3 Sewak Singh. It was/is pleaded by the petitioner that the
said Naka at point ‘C’ and the Water Course/Khal CFG was duly sanctioned
by the competent authority under Section 68 of 1873 Act.
Divisional Canal Officer, Bathinda, after considering the facts
and position of the case, allowed the application of the petitioner vide order
dated 14.7.2004 (Annexure P.1) ordering the restoration of the aforesaid
demolished Khal CFG of the petitioner and thus making it operational at the
Southern Wat of Field No.383/16/17.
C.W.P.No.8817 of 2006 #2#
Aggrieved against the same, respondent No.3 Sewak Ram filed
an appeal under Sub Section (4) of Section 30-FF of 1873 Act before the
Superintending Canal Officer-respondent No.1. The Appellate Authority-
respondent No.1 allowed the appeal and set aside the order dated 14.7.2004
(Annexure P.1) on the ground that there was already a Khal BE available to
the petitioner Raghubir Singh in the area of respondent No.3 Sewak Ram on
the northern side/Wat of Sewak Singh’s field No.320//14/15 from point B to
E and, therefore, there was no necessity of another Khal on the southern
side from point CFG.
Hence, the petitioner has filed present writ petition challenging
the Appellate Order dated 9.3.2006 (Annexure P.2) passed by respondent
No.1.
We have heard learned counsel for the parties and perused the
record.
After giving our thoughtful consideration, we find that this
petition deserves to be allowed. It is not disputed that the Water Course A
to D marked on the site plan, appended as Annexure P.3 with the writ
petition, has been existing at the site and at point ‘C’, the Naka of the
petitioner was sanctioned under Section 68 of 1873 Act. It is the case of the
petitioner that Water Course CFG existed on the Southern Watt of Field
No.323//16/17 belonging to respondent No.3-Sewak Ram, which was used
for irrigating the adjoining field of the petitioner. The case of respondent
No.3 Sewak Ram was that though the aforesaid Khal on the Southern side
existed but was not used for irrigation purposes by the petitioner for many
years because he was using the Khal marked as BE for irrigating his
(petitioner) fields existing on the northern side of his (Sewak Ram) fields.
We find the stand of the respondents as unsustainable. Learned Divisional
Canal Officer had found that the Khal on the northern side of the Field Watt
of respondent No.3 was Sewak Singh’s own motor khal through which the
fields/area of the petitioner was not irrigated. This finding was arrived at on
the recommendations of the Sub Divisional Officer, Dadhahoor based on
preliminary inquiry conducted by Ziledar Khaira after due inspection of the
spot. The learned Divisional Canal Officer observed as under:
“The case was pursued. The parties came present were carefully
C.W.P.No.8817 of 2006 #3#
heard. From the perusal of the case, it is noticed that as per site
plan point A.B.C.D khal are pucca and operational on the spot.
At the corner of the field No.323//16 at point C, there is naka. In
Warabandi, applicants turn is at Khata No.22/2. Naka for taking
water is 323//14-15 and to give is 323//16-25. From it, it is clear
that Nehri Khal to the field of the applicant was operational on
the southern Wat of field No.323//16-17. So keeping in view the
interest of irrigation, as per recommendation of Sub Divisional
Officer, Dadhahoor, the demolished khal of the applicant is made
operational at the southern Wat of field No.323//16-17 under
Section 30 F.F of the Northern Indian Canal and Drainage Act
No.8 of the year 1873.”
We find that the Superintending Canal Officer-respondent
No.1, Appellate Authority has, without any cogent basis, set aside the
findings recorded by the Divisional Canal Officer and, therefore, in view of
the aforesaid discussion, we quash the impugned order dated 9.3.2006
(Annexure P.2) passed by respondent No.1-Appellate Authority and restore
the order dated 14.7.2004 (Annexure P.1) passed by the Divisional Canal
Officer, Bathinda-respondent No.2.
With the abovesaid observation, writ petition stands allowed.
( JASWANT SINGH )
JUDGE
September 18, 2008 ( SATISH KUMAR MITTAL )
manoj JUDGE