Punjab-Haryana High Court
Baljinder Singh And Others vs Superintending Canal Officer, ... on 11 December, 2023
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
Neutral Citation No:=2023:PHHC:158533
CWP No.2904 of 2020 -1- 2023:PHHC:158533
202
THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.2904 of 2020
Date of Decision: 11.12.2023
Baljinder Singh and others
..... Petitioners
Versus
Superintending Canal Officer, Upper Bhari
Doab Canal, Amritsar and others ..... Respondents
CORAM : HON'BLE MR. JUSTICE RAJESH BHARDWAJ
***
Present: Mr. Anil Chawla, Advocate
for the petitioners.
Ms. Akshita Chauhan, DAG, Punjab.
Mr. Dayal Partap Singh Randhawa, Advocate
for respondent No.3.
***
RAJESH BHARDWAJ, J.
Present writ petition has been filed for quashing the order
dated 20.09.2017 (Annexure P-3) passed by respondent No.2 whereby
the application filed by the private respondents has been allowed
ordering for restoration of the Khal and against the order dated
08.01.2020 (Annexure P-5) passed by respondent No.1, dismissing the
appeal filed by the petitioners.
The present case has emanated from the impugned order
dated 20.09.2017 (Annexure P-3) passed by respondent No.2 i.e.
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Divisional Canal Officer, Jandiala Canal Division and the impugned
order dated 08.01.2020 (Annexure P-5) wherein respondent No.1 i.e.
Superintending Canal Officer has affirmed the order passed by the
learned Divisional Canal Officer wherein application filed by
respondents No.3 to 5 for reconstruction/reinstatement of the Scheme
Khal (Drain) Mogha (outlet) Burzi-14878-Left Rajbah (Channel),
Athwal, village Tapiala, Tehsil Baba Bakala, District Amritsar was
accepted.
Learned counsel for the petitioners has submitted that the
application filed by respondent No.3 on 04.05.2017 was allowed by
respondent No.2 vide impugned order dated 20.09.2017. Aggrieved by
the same, the petitioners filed an appeal before respondent No.1 on
01.11.2017. However, respondent No.1 has illegally dismissed the same
vide order dated 08.01.2020 by upholding the impugned order passed
by the learned Divisional Canal Officer i.e. respondent No.2. He has
submitted that the impugned orders are in violation of the provisions of
Section 30-FF of the Northern India Canal and Drainage Act, 1873
(hereinafter referred to as 'the Act'). He submits that as per mandate of
the Act, there was no finding given whether the alleged demolished
Khal was sanctioned by law or by agreement between the parties or it
has been prescribed by way of easement. He submits that after filing of
the application by respondent No.3, notices were issued and the
petitioners suffered their statement, which is as follows:
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"Statement of Gurmukh Singh son of Santa Singh,
Hardev Singh son of Ajaib Singh, co-sharer Mogha Bhurji
Rajbah Athwal, resident of village Tapiala, Tehsil Baba Bakala,
District Amritsar.
Came present on the spot and stated that they are
co-sharer of the aforesaid Mogha. The application given
against us by Tej Sukhwinder Singh son of Ajit Singh that we
have demolished the Khal irrigating their fields is absolutely
wrong. In this Khal water is not flowing for the last 15-16
years. Lot of co-sharers are not using the water of this Khal. If
the water comes in our fields, our fields being low the water
damages our crops, therefore we neither want to use water nor
ready for restoration of the Khal."
He has submitted that the respondents authorities have not
taken into consideration the statement made by the petitioners as
mentioned above. He has submitted that the site plan considered is also
incomplete. He submits that land of the petitioners is situated at a lower
level and once the water would start in the Khal to be restored, their
crop is likely to be damaged as this Khal is situated on a higher level.
He has submitted that respondents No.3 to 5 have alternate source of
water from their tubewell. He has relied upon the judgment passed by
this Court in "Gram Panchayat Lakho Wali, Tehsil Jalalabad, District
Ferozepur vs. Superintending Canal Officer, Ferozepur Canal Circle,
Ferozepur", 2013(3) Law Herals (P&H) 2183 and submits that the
impugned orders being non speaking and cryptic deserve to be set aside
by remanding the case with a direction to decide it afresh.
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Per contra, learned counsel for respondent No.3 has
opposed the submissions made by learned counsel for the petitioners.
He has submitted that there is no discrepancy in the impugned orders
passed by the learned Authorities below. He submits that on filing of the
application by respondent No.3, proper opportunity was granted to the
petitioners before passing the orders. He has submitted that as is evident
from the record, the petitioners recorded their statements before
respondent No.2 wherein they categorically agreed that they would have
no problem if the Khal is restored. He submits that thereafter all the
petitioners agreed for reconstruction/reinstatement of the Scheme Khal
(Drain). He submits that the Ziledar had filed a detailed report after
inspecting the spot along with concerned Patwari. He has submitted that
the report prepared clearly established that the Scheme Khal (Drain) on
the part of A-B, C-D was in running condition and the Part B-C-D is
demolished. Thus, he submits that the orders have been passed on
receiving the reports from the Ziledar which were prepared after taking
into consideration the complete record and the spot inspection. He
submits that the respondents are duly entitled for the water for irrigation
from the drain and just because, they have their own tubewell, it cannot
be a ground for rejecting their claim for restoration of the demolished
Khal. He has submitted that there is no violation of the provisions under
Section 30-FF of the Act as submitted by learned counsel for the
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petitioners and thus, the petition being devoid of any merit deserves to
be dismissed.
I have heard learned counsel for the parties and perused the
material on record.
After hearing learned counsel for the parties and perusing
the record, it is transpired that respondents No.3 to 5 are the co-sharers
in the Scheme Khal (Drain) which has been alleged to have been
demolished by the petitioners. On account of the same, application was
filed for restoration and notices were issued to the petitioners by
respondent No.2. Reports were sought from the Ziledar. Accordingly,
the Ziledar along with concerned Circle Patwari inspected the spot on
19.05.2017 and submitted his report. It was duly established from the
report that Khal was found to have been demolished. On hearing both
the sides, the learned Divisional Canal Officer observed that the
petitioners got recorded their joint statement and submitted that they
have agreed for the reconstruction/reinstatement of the Scheme Khal
after conducting of the demarcation.
Learned counsel for the petitioners has submitted before
this Court that finding of the learned Divisional Canal Officer is
factually incorrect to this effect as in the statement recorded by the
petitioners, they have specifically denied having demolished the Khal.
However, on perusal of the statement, it is apparent that though the
petitioners have deposed that they have not demolished the Khal but
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they have deposed that the water is not flowing in the Khal for the last
about 15 to 16 years and if the water comes in their fields, their fields
being at a lower level, their crops would be damaged. Thus, the
existence of the Khal is not under dispute. The petitioners have
themselves deposed that though the Khal exists but water is not flowing
in the same from the last about 15 to 16 years. This statement of the
petitioners corroborates the report submitted by the Ziledar as discussed
above. From the perusal of the statutory provisions of Section 30 FF(2)
of the Act, it is apparent that the Divisional Canal Officer may after
making the necessary inquiry, restore the water course. As evident from
the record, the Ziledar was directed to submit his report after carrying
out the spot inspection, which was duly submitted and the grievances
raised by the respondents were found to have been substantiated. Both
the authorities on hearing both the sides and perusing the report and
other relevant record had restored the demolished water course/Khal for
the better irrigation of the fields.
The Judgments relied upon by learned counsel for the
petitioners is distinguishable on the facts and circumstances of the
present case. In the case relied upon by learned counsel for the
petitioners, the existence of the demolished Khal was questioned.
However in the present case, the same is not under dispute.
Hence, finding no merit in the present petition, the same is
hereby dismissed. However as submitted by learned counsel for the
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petitioners that land of the petitioners is at a lower level and in case the
Khal is not maintained properly, there is a probability of their crop
being damaged. Thus, this Court finds this argument raised by learned
counsel for the petitioners to be genuine one. Accordingly, the
respondents authorities are directed to ensure the proper maintenance of
the Khal to be restored so as to ensure that no damage whatsoever is
caused to the crops of the petitioners as their land is stated to be at
lower level.
(RAJESH BHARDWAJ)
11.12.2023 JUDGE
rittu
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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