Punjab-Haryana High Court
Mahavir Singh And Others vs State Of Haryana And Others on 26 April, 2024
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
Neutral Citation No:=2024:PHHC:057432
CWP-9386-2024 -1- 2024:PHHC:057432
110 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-9386-2024
Date of Decision: 26.04.2024
Mahavir Singh and others ..... Petitioners
Versus
State of Haryana and others ......Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BHARDWAJ
Present: Mr. Abhishek Singla, Advocatefor
Mr. Harsh Jain, Advocate, for the petitioners.
Mr. J.K. Shehrawat, Advocate, for the caveator.
Rajesh Bhardwaj, J.
1. Prayer in the present petition is for setting aside the impugned
order dated 15.12.2023 (Annexure P-3) passed by respondent No.2 and
impugned order dated 06.12.2021 (Annexure P-1) passed by respondent
No.4 since both the orders have been passed without following the proper
procedure as laid down in Haryana Canal and Drainage Act, 1974 Act (for
short, 'the Act') without appreciating the legal and factual position. Further
prayer has been made to stay the operation of the impugned orders
Annexures P-3 and P-1).
2. It has been contended by learned counsel for the petitioners that
respondent No.5 filed an application for transfer of area 6.74/6.74 acres
from existing outlet RD 67000-R to RD 69377-R on the ground that he is
not getting proper irrigation from the existing outlet. He submits that
respondent No.4 i.e. Divisional Canal Officer by passing a non-speaking
and cryptic order dated 06.12.2021, approved the transfer as prayed for
from chak of outlet RD-67000-R to chak of outlet Rd-69377-R, subject to
the confirmation by respondent No.3 i.e. Superintending Canal Officer. He
submits that aggrieved by the same, the petitioners assailed the same by
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way of filing an appeal under Section 20(1) of the Act before respondent
No.3 wherein they raised all their pleas. He submits that after hearing both
the sides, learned Superintending Canal Officer-respondent No.3 accepted
the same vide his order dated 29.08.2022. It is submitted that aggrieved by
the same, respondent No.5 filed an appeal before respondent No.2- Chief
Canal Officer assailing the order dated 29.08.2022. He has submitted that
learned Chief Canal Officer without appreciating the evidence on record,
has illegally set aside the order dated 29.08.2022 vide his order dated
15.12.2023. It is submitted that the Chief Canal Officer has failed to take
into consideration the fact that respondent No.5 was getting proper
irrigation from the existing outlet No. RD 67000-R and thus, there was no
need to transfer the same to the proposed outlet i.e. RD-69377-R. It is
submitted that the impugned orders dated 06.12.2021 and 15.12.2023 are
without jurisdiction and have been passed in violation of mandatory
provisions of Sections 17 to 19 and Rule 7 of the Act. He has submitted that
neither the scheme was prepared nor the same was published as per mandate
of the Act. He submits that findings arrived at by learned Divisional Canal
Officer regarding the flow of water i.e. 158% and 127%, are factually
incorrect and thus, the impugned orders being unsustainable in the eyes of
law, deserve to be set aside. He has relied upon the judgment of this Court
in Ram Singh vs. State of Haryana, 2001(3) RCR (Civil) 538.
3. Learned counsel for the caveator has vehemently opposed the
submissions made by counsel for the petitioners. He has submitted that
learned Superintending Canal Officer had rightly appreciated the evidence
on record and the law settled, however, learned Chief Canal Officer has
failed to appreciate the same. Thus, the present petition being devoid of any
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merit deserves to be dismissed.
4. Heard.
5. After hearing learned counsel for the parties and perusing the
record, it is apparent that respondent No.5 filed an application for transfer of
his area from the existing source of irrigation to the proposed source
praying that his area is not getting proper irrigation before learned
Divisional Canal Officer. Learned Divisional Canal Officer heard both the
sides and examined the Khaka plan and the relevant revenue record. The
scheme prepared was explained to the shareholders and they duly appeared
before the Divisional Canal Officer. Inter-se command of both the outlets
was examined and it was found that the irrigation of the existing chak was
146% and that of the proposed chak was 194%. It was further found that
lined watercourse abuts the holding of respondent No.5 from the proposed
source. Thus, finding the demand of respondent No.5 to be genuine the
same was accepted by the Divisional Canal Officer vide his order dated
06.12.2021. This order was assailed by the petitioners before learned
Superintending Canal Officer. From the perusal of the order passed by the
Superintending Canal Officer, it is apparent that the well reasoned order
passed by the Divisional Canal Officer was set aside primarily on the
ground that there was a stiff opposition from the petitioners side and thus,
the order passed by the Divisional Canal Officer was not in the interest of
maintaining amicable atmosphere among the co-sharers. Thus, the appeal
filed by the petitioners was accepted on the ground which is not acceptable
under any law of of the law. Hence, respondent No.5 assailed the same
before learned Chief Canal Officer, who re-appreciated the evidence on
record and heard both the sides. It was found that the area of respondent
No.5 was being irrigated occasionally with the help of tube-well, whereas,
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the watercourse was running at the site by touching the area in question. It
was further found that the area measuring 6.50 acres in the chak of proposed
outlet at RD 69377-R had already been converted from CCA to UCA due to
construction of factory and thus, area of 6.74 acres as prayed by respondent
No.5 could be easily accommodated in the proposed outlet. Thus, learned
Chief Canal Officer set aside the order passed by the Superintending Canal
Officer vide his order dated 15.12.2023 and thus, restored the order dated
06.12.2021 passed by learned Divisional Canal Officer.
6. There is no dispute regarding the judgment relied upon by
learned counsel for the petitioners, however, in the facts and circumstances
of the case, the same is distinguishable.
7. In the considered opinion of this Court, the application filed by
respondent No.5 was dealt with by learned Divisional Canal Officer and
Chief Canal Officer as per procedure prescribed and on the basis of the
requisite report sought, hence, this Court does not find any infirmity in the
same for its interference. Resultantly, the present petition being devoid of
any merit is hereby dismissed.
(RAJESH BHARDWAJ)
26.04.2024 JUDGE
sharmila Whether Speaking/Reasoned : Yes/No
Whether Reportable : Yes/No
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