Jarnail Singh And Anr vs State Of Punjab And Others
2022 Latest Caselaw 14515 P&H

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH
108
                                         LPA No.940 of 2022 (O&M)
                                         Date of Decision: November 16th, 2022
Jarnail Singh and another
                                                                      ...Appellants
                                        Versus

State of Punjab and others
                                                                   ...Respondents

CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
       HON'BLE MR. JUSTICE VIKRAM AGGARWAL

Present:     Mr. Inderjeet Singh, Advocate
             for the applicant-appellants.

AUGUSTINE GEORGE MASIH, J. (ORAL)

CM No.2249-LPA of 2022

Prayer in this application is for condonation of delay of 12 days in

filing the appeal.

For the reasons mentioned in the application, which is duly

supported by an affidavit of applicant-appellant No.2, the same is allowed.

Delay of 12 days in filing the appeal stands condoned.

LPA No.940 of 2022

Challenge in this appeal is to the judgment dated 08.09.2022

passed by the learned Single Judge, whereby challenge to the order of the

Superintending Canal Officer, Patiala, Circle IB, Patiala-respondent No.2

herein allowing the appeal of the private respondents vide order dated

20.06.2022 (Annexure P-7) has been dismissed upholding the said order.

2. Learned counsel for the appellants contends that the source from

which the appellants intended to take the water was from R.D. No.55994 from

which a portion of the land of the appellants is being irrigated. He contends

that the remaining portion of the land as has been reflected in yellow colour in

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the site plan (Annexure P-2) (page-84 of the paper book) is being irrigated

from outlet No.49450. Counsel contends that when the watercourse through

which the part of the land of the appellants is being irrigated from i.e.

RD 55994 is neared to the remaining land of the appellants, the water can be

granted through this watercourse for irrigation of the remaining land of the

appellants. The prayer primarily is that the remaining land of the appellants

may be irrigated not from RD 49450 but from RD 55994. Counsel contends

that watercourse RD 49450 being at the tail end, the water does not reach

the land of the appellants as it is not being maintained by the co-sharers

leading to less water reaching the tail end causing loss to the appellants as

the distance is 1.3 kilometres from the main outlet. Counsel has further

contended that the report of the Ziledar as well as the Sub Divisional Officer

were in favour of the appellants and, therefore, the said plea should have

been accepted on the aspect of not only less availability of the water as also

the distance from the outlet. He on this basis contends that the order passed

by the Appellate Authority as has been upheld by the learned Single Judge

deserves to be set aside.

3. We have considered the submissions made by the counsel for

the appellants and with his assistance have gone through the pleadings,

judgment passed by the learned Single Judge, the impugned order as also

the site plan but do not find ourselves in agreement with what has been

asserted by the counsel.

4. As regards the distance of the watercourse through which the

water has to travel to reach the land of the appellants is concerned, which is

pointed out as 1.3 kilometres, suffice it to say it has come on record that the

watercourse is not being properly maintained by the co-sharers.

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The responsibility and duty which has been cast under the Canal and

Drainage Act is upon the co-sharer, which if they are so performing

properly, the cause as is being sought to be projected by the appellants,

would not be available to them. The inaction on the part of the co-sharers

cannot in itself be a ground for changing the outlet for irrigation purposes.

While sanctioning a watercourse, the availability of the water from a

particular outlet, the area which is to be irrigated as also the fact as to how

much water can be carried in a watercourse is taken into consideration.

All these parameters, when taken into consideration, clearly lays down and

points out on the basis of the records that the water for irrigating the land of

the appellants is fully available as far as outlet RD 49450 is concerned. It is

the maintenance factor which is causing loss, if any, of the water for proper

irrigation of the land of the appellants. The factum with regard to the

remaining land of the appellants being irrigated from RD 55994 is

concerned, the said watercourse and the outlet takes care of not only the

land of the appellants but the other co-sharers, whose land is being irrigated

through this outlet and, therefore, in those factors, availability of water, the

dimension of the watercourse as also the land to be irrigated has been taken

note of, which takes care of the water being made available to the

co-sharers. Nothing has come on record which would show that there is

surplus water as far as outlet No.49450 is concerned, which can be utilized

for irrigating the remaining land of the appellants. In the absence of such

information and details, the plea as has been raised by the counsel for the

appellants cannot be accepted.

5. Finding no merit in the present appeal, the same stands

dismissed.

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6. In the light of the dismissal of the appeal, CM No.2250-LPA of

2022 stands disposed of.

                                      (AUGUSTINE GEORGE MASIH)
                                              JUDGE



November 16th, 2022                           (VIKRAM AGGARWAL)
Puneet                                              JUDGE


                  Whether speaking/reasoned:        Yes

                  Whether Reportable:               No




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