Punjab-Haryana High Court
Raja Ram And Others vs Ishwar And Others on 5 July, 2023
Neutral Citation No:=2023:PHHC:084243
RSA-931-2022 (O&M) -1-
2023:PHHC:084243
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
112+114
RSA-931-2022 (O&M)
Date of decision: 05.07.2023
RAJA RAM AND OTHERS ..Appellants
Versus
ISHWAR AND OTHERS ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. P.K. Ganga, Advocate
for the appellants.
Mr. Sunil Sihag, Advocate
for the respondents.
ANIL KSHETARPAL, J(Oral)
1. The concurrent findings of the facts arrived at by the Courts
below are challenged by the defendants.
2. In substance, the dispute is with regard to the restoration of a
pipeline carrying water for irrigating the fields of the farmers. It is the case
of the plaintiffs that underground pipeline installed by them has been
damaged by the defendants.
3. On the other hand, defendants claim that there was no
underground pipeline. During the pendency of the suit, the irrigation officer
was appointed as a local commissioner to inspect the site. After visiting, he
reported that there is an underground pipeline available in some part of the
land, whereas, in the remaining part, it does not exist. On the basis of the
aforesaid report and the evidence led by the plaintiffs, both the Courts
concluded that the defendants have damaged the underground pipeline and,
therefore, the plaintiffs are entitled to the restoration thereof.
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4. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook.
5. The appellants have also filed an application under Order 41
Rule 27 for permission to lead additional evidence as they wish to produce a
copy of the order passed by the Supertending Canal Officer on 11.02.2021,
which was decided on the basis of a compromise. The learned counsel
representing the appellants contends that an alternative source of water has
been provided to the defendants and, therefore, there is no requirement to
restore the pipeline. He further submits that the Civil Court has no
jurisdiction in view of Section 25 of the Haryana Canal and Drainage Act,
1974 (hereinafter referred to as the '1974 Act').
6. On the other hand, the learned counsel representing the
respondents while drawing the attention of the Court to the judgment of the
First Appellate Court, submits that the underground pipeline for carrying
water was not a sanctioned water course and hence jurisdiction of the Civil
Court is not barred. He further submits that the alternative water course
provided to the defendants (respondents) is not in substitution of the water
pipeline. He submits that in the order of Superintending Canal Officer itself,
it has been recorded that it will have no adverse effect to the other co-sharers
and the defendants were not party to the aforesaid litigation.
7. This Court has considered the submissions while evaluating the
arguments of the learned counsel representing the parties.
8. As far as existence of underground water pipeline, the report of
irrigation officer is available on the file which proves that the underground
water pipeline did exist. The aforesaid finding is based on an appreciation of
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evidence and does not require interference unless it is proved to be perverse.
While deciding a Civil Suit, the Court is required to adjudicate the cases on
preponderance of evidence. On appreciation of evidence, the Court is
entitled to draw certain logical inferences which are permissible. In the
present case, the appellants deny the existence of the underground pipeline.
Whereas, the irrigation officer has found that underground pipeline exists in
some part. In such circumstances, the conclusion drawn by the Courts below
is not without a basis. In fact, the stand taken by the defendants (appellant
herein) has been found to be factually incorrect. In such circumstance, there
is no substance in the first argument of the counsel.
9. At this stage, it would be appropriate to extract Section 24 and
25 of the 1974 Act:-
"24. Restoration of demolished or altered etc.
Watercourse- (1) If a person demolishes, alters, enlarges
or obstructs a watercourse or a temporary watercourse
or causes any damage thereto, any person affected
thereby may apply to the Sub-Divisional Canal Officer
for directing the restoration of the same to its original
condition.
(2) On receiving an application under sub-section
(1) the Sub-Divisional Canal Officer may, after making
such enquiry as he may deem fit, require, by a notice in
writing served on the person found to be responsible for
so demolishing, altering , enlarging, obstructing or
causing damage, to restore, at his own cost, the
watercourse or temporary watercourse to its original
condition within such period not exceeding twenty-one
days, as may be specified in the notice : Provided that in
case of a temporary watercourse its restoration shall not
be for a period exceeding one year.
(3) If such person fails to the satisfaction of the
Sub-Divisional Canal Officer, to restore the watercourse
or temporary watercourse to its original condition within
the period specified in the notice served on him under
sub-section (2) the Sub-Divisional Canal Officer may
cause the watercourse or temporary watercourse to be
restored to its original condition and recover the cost
incurred in respect of such restoration from the
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defaulting person. The Sub-Divisional Canal Officer may
order recovery of a sum not exceeding Rs. 500 from the
defaulting person by way of penalty. Out of this sum so
recovered the Sub-Divisional Canal Officer may order
any amount to be paid to the aggrieved person for the
damage caused to him. In case the penalty is not paid the
same shall be recoverable as arrears of land revenue.
(4) Any person aggrieved by the order of the Sub-
Divisional Canal Officer, may prefer an appeal within
fifteen days of the passing of such order to the Divisional
Canal Officer, whose decision on such appeal shall be
final.
(5) Any sum which remains unpaid within a period
to be specified for this purpose by the Divisional Canal
Officer may be recovered as arrears of land revenue.
25. Bar of jurisdiction of Civil Court- Notwithstanding
anything contained in this Act or any other law for the
time being in force, no civil court shall have jurisdiction
to entertain or decide any question relating to matters
falling under sections 17 to 24."
10. The learned First Appellate Court has held that the jurisdiction
of the Civil Court is not barred because the water pipeline was not an
approved water course and hence Section 24 is not applicable. The learned
counsel representing the appellant though made sincere attempt, however,
failed to draw the attention of the Court to any evidence to prove that the
aforesaid underground pipeline was a sanctioned/approved water course.
Section 25 of the 1974 Act is applicable only if the question which require
adjudication falls under the scope of Section 17 to 24 of the 1974 Act. It is
the case of the appellant that the dispute in the present case falls in Section
24. As already noticed, the First Appellate Court has held that Section 24 is
not applicable.
11. In any case, the pipeline is stated to be 5 ft. deep from the
ground level. Such pipeline is not obstructing the activities of an
agriculturist. Restoration of such pipeline would help the plaintiff to have a
source of irrigation.
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12. Keeping in view the aforesaid facts, no ground to interfere is
made out.
13. Dismissed.
14. All the pending miscellaneous applications, if any, are also
disposed of.
July 05th, 2023 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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