Punjab-Haryana High Court
Jatinder Singh vs The Superintending Canal Officer ... on 6 September, 2023
Neutral Citation No:=2023:PHHC:118695
CWP-19804-2023 -1- 2023:PHHC:118695
120 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-19804-2023
Date of decision: 06.09.2023
Jatinder Singh ... Petitioner
Versus
The Superintending Canal Officer and others ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BHARDWAJ
Present: Mr. Sandeep Khunger, Advocate, for the petitioner.
***
RAJESH BHARDWAJ, J.
Prayer in the present petition is for quashing the order dated
20.03.2023 (Annexure P-4) passed by the Divisional Canal Officer and order
dated 26.06.2023 (Annexure P-6) passed by the Superintending Canal Officer,
whereby, both the authorities have illegally and wrongly ordered for restoration
of watercourse J-K in spite of the fact that it was brought to the notice of the
authorities that pucca watercourse E-L-M-N is already in existence and at point
N there is a Pulli meant for the irrigation of the land of respondents No.3 and 4
and a Katcha watercourse is in existence in 149//22 to 25 which has been
shown in the site plan as N-N1 and further respondents No.3 and 4 have not
placed on record any evidence to show that the said watercourse was in
existence and still further the alleged watercourse J-K does not fall in any of
the three categories i.e. I) sanctioned by law; ii) sanctioned by agreement; or
iii) by way of easement.
It has been contended by learned counsel for the petitioner that the
petitioner and respondents No.3 and 4 are having their holdings adjoining to
each other and the source of irrigation is the canal water. He submits that
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watercourse A-B-C-D is running at the spot and from point D, there are two
watercourse i.e. one is D-I-J and other is D-E-L-M-N meant for irrigation of
respondents No.3 and 4. He submits that respondents No.3 and 4 only to harass
and cause harm to the irrigation of the petitioner submitted an application to the
Canal authorities that watercourse J-K has been demolished by the petitioner.
He has submitted that the Divisional Canal Officer illegally vide order dated
11.07.2022 (Annexure P-2) allowed the application under Section 30-FF of the
Northern India Canal and Drainage Act, 1873 (for short, 'the Act') and illegally
ordered for the restoration of watercourse J-K by observing that there is a
girdawari for the year 1996-97. He has further submitted that aggrieved by the
same, the petitioner approached the Superintending Canal Officer by filing an
appeal, which was allowed and the order dated 11.07.2022 was set aside
remanding the case to the Divisional Canal Officer vide order dated 25.11.2022
(Annexure P-3) wherein, it was specifically observed by the Superintending
Canal Officer that the Divisional Canal Officer ordered restoration of the
watercourse while placing reliance on girdawari for the year 1996-97, but
ignored the statements of other parties, wherein it was mentioned that
watercourse from Rectangle No.159, Killa Nos.2 to 5 and Rectangle No.149,
Killa Nos.22 to 25 is in existence of the passage there is a pulli and the land of
respondents No.3 and 4 is being irrigated from the said watercourse. He has
submitted that the Divisional Canal Officer allowed the application on remand
by passing the impugned order dated 20.03.2023 (Annexure P-4). He submits
that thereafter, being aggrieved the petitioner filed an appeal before the learned
Superintending Canal Officer, but the same was dismissed vide order dated
26.06.2023 by overlooking the facts and circumstances of the case. He has
submitted that the Divisional Canal Officer vide order dated 11.07.2022
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ordered for restoration while placing reliance on girdawari for the year 1996-
97, which was more than 25 years old, whereas, according to the provisions of
Section 29 of the Act, any watercourse which is disused for three years
continuously the right of the said person to occupy such watercourse ceased
absolutely. He has placed reliance on the judgments of this Court in Chamkaur
Singh vs. Superintending Canal Officer, Sirhind Circle, Ludhiana and another,
passed in CWP-16380-2009 on 16.09.2011; Jagar Singh vs. Superintending
Canal Officer and others, 1972 PLR 315; and Ram Kumar vs. Bhim Singh,
1985 RRR 330, wherein, it was held that the applicant will have to plead and
prove that watercourse was in existence for a continuous period of not less than
six months prior to the date of its demolition. He has submitted that the
impugned orders are totally in violation of Section 30-FF of the Act and thus,
the same are being totally beyond the facts and circumstances of the case and
the law settled, deserve to be set aside.
Heard.
After hearing learned counsel for the petitioner and perusing the
record, it is deciphered that application was filed by respondents No.3 and 4
before the Divisional Canal Officer for restoration of demolished watercourse
on outlet No.13156/13290/R. Notice was issued to the other side and
statements of the concerned shareholders were recorded. The Divisional Canal
Officer heard the case in the presence of Ziledar, Moga. On 20.03.2023, the
case was against investigated and on a perusal of the record, it was found that
Jatinder Singh i.e. the petitioner deposed that he has not demolished the said
watercourse. It was further deposed by him that it was a katcha watercourse
and was damaged at the time of cultivation of the field. He also deposed that if
respondent No.4 dig out canal watercourse from his area, then he would have
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no objection. Keeping in view the statement made by the petitioner and
inspecting the spot, the demolished watercourse from Point J to K was restored
under Section 30-FF of the Act. Aggrieved by the same, the petitioner filed an
appeal before the Superintending Canal Officer. Notice was issued to the
opposite party and both the parties were heard. Record of the case was re-
appreciated and it was found that at one point of time, compromise was
effected between both the parties. It was further found that the respondent side
was in joint khata and the appellant had admitted in his statement that he had
not intentionally demolished the watercourse, but it was damaged while
cultivating the field as it was a katcha watercourse. Thus, the existence of the
watercourse was proved from the record, which was dismantled by the
petitioner. The submissions made by learned counsel for the petitioner
regarding Section 29 of the Act are not applicable in the facts and
circumstances of the case. The petitioner himself has admitted that the
watercourse restored got damaged while cultivating the land, thus, restoration
of the watercourse as held by both the authorities below is as per the statutory
provisions of the Act. In all its humility, the judgments relied upon the counsel
for the petitioners are not disputed, however, in the facts and circumstances of
the present case, the same are distinguishable. Thus, in the considered opinion
of this Court, there is no infirmity in the impugned orders passed, hence, the
present petition being devoid of any merit, is hereby dismissed.
( RAJESH BHARDWAJ )
JUDGE
06.09.2023
sharmila
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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