Punjab-Haryana High Court
Major Singh And Ors vs State Of Punjab And Ors on 4 September, 2024
Neutral Citation No:=2024:PHHC:118456
CWP-23304-2019 (O/M) -1- 2024:PHHC:118456
202 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-23304-2019 (O/M)
Date of decision : 04.09.2024
Major Singh and others ...... Petitioners
Versus
State of Punjab and others ...... Respondents
CORAM : HON'BLE MR. JUSTICE HARSH BUNGER
Present :- Mr. Ankush Gupta, Advocate
for the petitioners.
Mr. Navneet Singh, Senior DAG Punjab.
Mr. Nitesh Singla, Advocate
for respondents No. 7 and 8.
-.- -.-
HARSH BUNGER, J. (ORAL)
1. Petitioners (Major Singh and others) have filed the instant
civil writ petition under Articles 226/227 of Constitution of India, inter
alia, seeking a writ in the nature of certiorari for setting aside the order
dated 20.04.2018 (Annexure P-7), passed by learned Divisional Canal
Officer, Lehal Division (Irrigation Branch), Patiala (in short 'DCO'),
whereby an application filed by private respondents No. 7 and 8, seeking
restoration of water course, was allowed.
1.1 A further prayer has been made for setting aside order
dated 20.03.2019 (Annexure P-8), passed by learned Superintending
Canal Officer, Patiala (in short 'SCO'), whereby the appeal filed by
petitioners against the order dated 20.04.2018 (Annexure P-7), was
dismissed.
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2. Briefly, private respondents No. 7 and 8 filed an application
before learned DCO, seeking restoration of water course of outlet
No. 61000-R, Budhlada Branch, which was claimed to be demolished
by petitioners for about 10 karams on the southern side of petitioners'
killa No. 81//18-24. Upon receipt of said application, report from
Ziledar, Beeroke, was called; who after inspecting the spot submitted his
report to the Sub Divisional Officer, Canal Sub Division, Budhlada,
wherein it was stated that there is a pucca water course on both the sides
and approximately 10 karams water course is demolished in the southern
side of khasra No. 81//18-24, accordingly, the restoration of the said
water course was recommended. The Sub Divisional Officer further
forwarded the case to learned DCO.
2.1 The learned DCO upon examination of the matter and after
affording opportunity of hearing to the concerned parties, ordered
restoration of the demolished water course, vide his order
dated 20.04.2018 (Annexure P-7) by holding as under :-
"All the parties present in court were heard carefully.
Record was perused. After discussing the same with
concerned Jiledar Beeroke and Revenue Department,
it is found that the claim of the applicants is genuine.
This watercourse is running from last 30-35 years and
this watercourse was made pakka by Water Resources
Management and Development Corporation Division
Number 2, Mansa. Entire committee of co shares of
village Bachoana had given one complaint regarding
demolition of water course to Water Resources
Management and Development Corporation Division
No. 2, Mansa on 13/12/2016 and in Sadar Police
Station Budhlada on 07/12/2016, but accused ignored
to restore the watercourse on one pretext or other and
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filed case in Civil Court, Budhlada. There is 3-4
kilometer pakka watercourse on both the sides on the
spot. Thus 10 karam of watercourse which has been
demolished at southern side of killa number 18/2 and
killa No. 24/2 of rectangle number 81, is ordered to be
restored under Section 30-FF of The Northern India
Canal and Drainage Act, 8 of 1973 and Punjab
Amendment Act 23 of 1965."
2.2 Being aggrieved against the aforesaid order dated 20.04.2018
(Annexure P-7), the petitioners preferred an appeal before learned SCO,
which was also dismissed, vide order dated 20.03.2019 (Annexure P-8)
by holding as under :-
" After considering all the facts discussed above,
it is clear that watercourse was made pakka by
Tubewell Department and this watercourse has pakki
wari under section 68 of act. In para number 10 of
appeal filed by appellants, they have admitted the fact
of running kacha watercourse on the spot and from
the arguments raised by both the parties it is proved
that on the spot at the southern side of killa
number 18/2 and 24/2 of rectangle number 81, 10
karam kacha watercourse is running. The present
appeal is filed by the appellants under
section 30 FF (4) of Canal and Drainage Act. This
section is related to demolished watercourse, whereas
in the present case, the watercourse is running on the
spot through which the area of appellants and
respondents is irrigated. Thus the claim of appellants
u/s section 30 FF (4) is dismissed. The co sharers
have to take care of watercourses themselves and
watercourse is to be made pakka by Tubewell
Department. Thus there is no need to interfere in the
order dated 20.04.2018 passed by Divisional Canal
Officer, Lehal Division I.B, Patiala. Thus the decision
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of Divisional Canal Officer, Lehal Division I.B,
Patiala is upheld and appeal of the appellants is
dismissed. Concerned co sharers may kindly be
informed because on the date of hearing
i.e. 07.02.2018, the matter was reserved."
2.3 In the aforementioned circumstances, the petitioners have
filed the present writ petition before this Court, seeking relief(s), as
noticed above.
3. Learned counsel for petitioners submits that the learned canal
authorities below have erred in law and fact in ordering restoration of
demolished water course without ascertaining the correct position
existing at the spot. While referring to the site plan (Annexure P-3),
learned counsel for petitioner submitted that the land of the petitioners is
comprised in Rect. No. 81, Killa No. 13, 17, 18, 24/2 (shown in pink
colour), whereas the land of private respondents and their relatives is
comprised in Rect. No. 81, Killa No. 23, 24/1; Rect. No. 107, Killa
No. 3, 4, 7, 8 etc. (shown in green and orange colour). It is further
submitted that on the southern side of Killa No. 81//18, 24/2, there is a
water course shown in blue colour, which is comprised in Khasra No. 302
and next to the water course (on the southern side thereof), there is a road
shown in red colour and then the land of private respondents is there as
shown in green and orange colour. It is submitted that the water course in
Khasra No. 302 was an old one, which was dismantled by the Punjab
Water Resources Management and Development Corporation (respondent
No. 4) for its reconstruction and the entire issue arose there when the
reconstruction of the said water course was started. It is submitted that
private respondents had infact encroached upon the area of the road
falling adjoining to their lands in Killa No. 81//23, 24/1 and on account of
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the said encroachment, the road as well as the water course were shifted
towards the land of the petitioners. It is next submitted that the
petitioners had no objection if the water course is constructed within the
area of water course comprised in Khasra No. 302 after its due and proper
demarcation so that the area of the petitioners comprised in Killa
No. 81//13, 17, 18, 24/2 is not diminished. However, it is contended that
the Canal Authorities did not get the demarcation of the area conducted
and the learned DCO wrongly passed the impugned order
dated 20.04.2018 (Annexure P-7), which order was further upheld by
learned SCO, vide its order dated 20.03.2019 (Annexure P-8). It is
further contended that virtually the restoration of water course has been
ordered illegally in the land of the petitioners when no such water course
ever existed in their land nor the petitioners had ever demolished the said
water course. It is also submitted that on account of injustice being done
by respondent No. 4-Corporation, the petitioners had to file a suit for
permanent injunction wherein an interim injunction restraining laying any
water course in the area of the petitioners was passed,
however, subsequently, on account of passing of the impugned orders
(Annexure P-7 and Annexure P-8), the said suit came to be dismissed,
vide judgment and decree dated 13.04.2019 (Annexure P-11), passed by
learned Civil Judge (Junior Division), Budhlada. It is, therefore,
submitted that the impugned orders are patently illegal and perverse,
accordingly, the same be set aside.
5. Per contra, learned counsel appearing for the State of Punjab
informs the Court that the water course has been restored at the site where
it was earlier running for the last more than 35 years. It is further
submitted that the petitioners had demolished the water course on account
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of which even a case FIR was registered and considering the entire
matter, the learned Canal Authorities had rightly ordered restoration of
the demolished water course at site. Learned State counsel further
informs that although, private respondents were found in possession of
some area of the road, however, presently, the things are in place and no
interference is required to be made in the impugned orders. As regards
the allegations of the petitioners that the demolished water course has
been restored in the land of the petitioners, it is submitted that the said
submission was made by the petitioner before the Civil Court as well,
however, the petitioners had failed to lead any evidence in that regard,
accordingly, their claim was rejected. With the aforesaid submissions,
prayer for dismissal of the instant writ petition was made.
6. I have heard learned counsel for respective parties and have
also perused the paperbook with their able assistance.
7. In the present case, the Canal Authorities below were only
concerned regarding restoration of the demolished water course under
Section 30 (FF) of the Northern India Canal and Drainage Act, 1873. A
finding of fact was returned by the Canal Authorities that the water course
in question is running from the last 30-35 years and the said water course
was made pucca by Water Resources Management and Development
Corporation, Division No. 2, Mansa and also that this water course has a
permanent warabandi under Section 68 of 1873 Act. It has further come
on record that the existence of the water course at the site had been
admitted by the petitioners.
7.1 Further, it is the stand of the petitioners that the water course
was running at the site in khasra No. 302, which abuts the land of the
petitioners on the southern side of killa No. 81//13, 17, 18, 24/2.
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Petitioners claim that since the said water course in khasra No. 302 was
old one, the same was dismantled by respondent No. 4-Corporation for its
reconstruction and at that time while reconstructing the said water course,
the same was sought to be shifted towards the land of the petitioners and
at that time, the petitioners objected to the same and they also filed a civil
suit for permanent injunction. Petitioners state that they have no objection
if the water course is constructed in its place where it was running earlier
in khasra No. 302, however, it cannot be restored in the land of the
petitioners. Petitioners claim that in case the water course is to be
constructed in their land then the land has to be acquired by paying
compensation to them. On the other hand, it is the stand of the State that
the water course has been ordered to be restored at site in Killa No. 302
itself and the same has not been restored in the land of the petitioners.
7.2 In view of the aforesaid stands taken by the respective
parties, it is to be seen as to whether the water course has been made in
the land of the petitioners or not.
7.3 In my considered view, the aforesaid issue as regards the
claim of the petitioners that the water course has been made in their land,
stands answered by the findings returned by the civil court where the
petitioners had failed to lead any evidence that the water course was
being made in their land. The relevant findings of the learned Civil
Court, read as under :-
"11. As far as regarding the ownership of the plaintiffs
over the suit property is concerned, the defendants have
not disputed the ownership of the plaintiffs over the suit
property and further the plaintiffs have produced on
record Jamabandi for the year 2013-15 Ex P1 which
also proves that that plaintiff no. 1 is co-sharer of land
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measuring 9 Kanal 11 Marla comprised in Khasra
no. 81//18/2 (5-7), 24/2 (4-4) situated at Village
Bachuana Tehsil Budhlada and plaintiff no. 2 and
Mukhtiar Singh (since deceased) i.e. predecessor
of defendant no.3 to 7 are co-sharers of land
measuring 20 Kanal 9 Marla comprised in Khasra
no. 81//13 (8-0), 17(8-0), 18/1(4-9) situated at
Bachuana Tehsil Budhlada District Mansa. Further as
per Revenue record produced on record by the witness
PW1 and PW4, there is no watercourse recorded in the
suit property. Rather, the plaintiffs have proved on
record Mussavi Ex P7 and Ex P8 and as per this
document, number of Government Khal is 302 which
runs adjoining to Khasra no. 81//18/1, 24/2 which is
also not disputed by the defendants.
12. The plaintiffs have claimed that the defendants
are trying to carve out the watercourse in the suit
property, whereas the defendants have pleaded that they
are reconstructing and making the watercourse
cemented on the same place where it exists from the
last 30-35 years. First of all, I find that the defendants
are claiming that they are reconstructing watercourse
and making in cemented on the same place where it
exists and in this regard, the defendants have proved
photograph Ex D1 to Ex D3 during the cross
examination of the witnesses PW1 to PW3. Therefore, it
was required on the part of the plaintiffs to prove if the
area where watercourse is being reconstructed or being
made cemented as shown in the photographs Ex D1 to
Ex D3 is part of the suit property, but the plaintiffs have
not produced on record any evidence either in the shape
of demarcation or other document to prove that the
area where watercourse is being reconstructed or being
made cemented falls within the suit property. Thus
merely on the oral version of the plaintiffs that the area
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where watercourse is being reconstructed by the
defendants falls within suit property is having no legs to
stand. The plaintiffs have approached this court for the
relief of permanent injunction and therefore, it was
required on the part of the plaintiffs to prove their own
case and if the defendants have not proved demarcation
of the property to show that the watercourse is being
reconstructed over its prescribed area, then the
plaintiffs cannot take advantage of weakness of the
defendants in this regard.
13. Further, I find that during cross examination of
the plaintiff Major Singh ie PW1, PW2 Amrik Singh and
PW3 Gurcharan Singh, the defendants have put
photographs Ex D1 to Ex D3 to these witnesses and
these witnesses have stated that the photographs Ex D1
to Ex D3 are of the spot/land in dispute and in these
photographs a demolished Khal is seen. These
witnesses have not denied the authenticity of these
photograph Ex D1 to Ex D3. The perusal of these
photographs shows that the cemented khal has been
constructed on both sides in straight line and only upon
the area which is alleged to be the suit property by the
plaintiffs, the Khal is in demolished condition. The
witness PW1 during his cross examination has admitted
that the Khal has been reconstructed by the defendants
under its rules prior to his land and after his land and
similarly the witness PW2 Amrik Singh and PW3
Gurcharan Singh during their cross examination have
stated that Khal has been reconstructed by the
defendants under its rules prior to land and after land
of plaintiffs. Therefore, once the defendants have
reconstructed the water course as per law and rules
prior to and after the land of the plaintiffs which is also
in straight line as per Ex D1 to Ex D3, then there is
nothing to show as to why the defendants would carve
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out any watercourse in the suit property if the same was
not running earlier at the same place and as per these
photograph it appears that there is no other
watercourse on the spot as alleged by the defendants
except the one shown in these photographs.
13. Otherwise also, the plaintiffs have pleaded that
there is Kacha Khal on southern side of Khasra
no. 81//18/1 and 24/2 and the witness PW1 during his
cross examination has stated that the khal in dispute is
in existence at the spot since last more than 30-35
years. Similarly, the witness PW2 Amrik Singh has
stated that the Khal in dispute is in existence at the spot
since last more than 10 years whereas the witness PW3
Gurcharan Singh has stated during his cross
examination that the khal in dispute is in existence at
the spot since last more than 35 years. However except
the Khal shown in photographs Ex D1 to Ex D3, the
plaintiffs have failed to prove on record any evidence to
show the existence of any other khal at different place
than shown in these photographs and had there been
any other khal in existence at different place than
shown in Ex D1 to Ex D3 from the last 10 to 35 years,
then definitely the plaintiffs would have produced any
cogent and reliable evidence to prove its existence but
they have failed to do so.
Not only this, the witness PW1 during his cross
examination has stated that place of khal is adjoining to
his land and after that there is link road approaching
from village Daska to Bachuana and similarly the
witness PW2 Amrik Singh and PW3 Gurcharan Singh
have stated that adjoining to land of Khal there is link
road between Bachuana and Daska. Therefore, if there
is land of the plaintiff adjoining to the watercourse in
question on one side and on the other side of
watercourse in question there is link road as stated by
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witnesses PW1 to PW3 then on this ground also, it
stands proved there is no other watercourse in between
the watercourse shown in photographs and link road,
which means that there is only one watercourse which
is shown in photographs Ex D1 to Ex D3 and same is
running at the same place from the last so many years
and there is no other watercourse on the spot.
Therefore, it stands proved on record that the Khal
shown in photographs Ex D1 to Ex D3 is running from
the last 30-35 years at the same place and the
defendants are reconstructing the watercourse in
question on the same place where it exists.
14. Further, the defendants have produced on record
copy of FIR no. 96 dated 01.11.2017 Mark A and as per
this FIR, a case has been registered against the plaintiff
no.1, 2 and 4 on the allegations that they have
demolished the Khal in question upto 100 feet and
therefore, FIR has been registered against them for the
offence under section 353/186/379/427 IPC against
them. Though, this FIR has been marked as Mark A but
the witness PW1 Major Singh has admitted the
registration of FIR no. 96 dated 01.11.2017 against him
and others and now challan has been presented against
them and they are facing trial. The defendants have
also produced on record copy of order
dated 20.03.2019 passed by Sh Ramesh Kumar Gupta,
PSE-I, Supervisor Canal Officer, Patiala Circle IB,
Patiala as Ex D4 wherein the appeal filed by plaintiff
no.1, 2, and 4 against the order dated 20.04.2018
whereby directions were given to restore the demolished
Khal in question, has been dismissed. Therefore, once
the competent authority under the law has found the
watercourse in question in its correct place and
directions have been issued for restoration of the
demolished watercourse in question then on this ground
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alone the plaintiffs are not entitled for any injunction
from this court.
15. The plaintiffs have cross examined the witness
DW1 to DW3, however, perusal of their cross
examination shows that the plaintiffs have failed to
bring on record anything which could render any help
to them to prove that the defendants are carving out
watercourse on new place than the place where
watercourse was running from the last 30-35 years.
Rather it would be appropriate to reproduce the
relevant portion of cross examination of witness DW1
which is as under:
" In Ex DX, the line which is shown in
black colour presents Pakka Khal and the
line in brown colour represents pakka road
with kacha barm. After the pakka road with
kacha barm, two karams of land was with
our department for construction of khal and
at the spot pakka khal is already going on
since last 25-30 years. It is correct that the
defendant department was constructing
pakka khaal on the aforesaid two karams of
land where is already going on."
Now the combined reading of site plan Ex DX
with the aforesaid suggestion put by the plaintiffs shows
that the defendants are reconstructing the watercourse
over two karams land of their department which is
situated in between the link road and the suit property
and the plaintiffs have not pleaded nor produced on
record any other evidence to show if the defendants are
not reconstructing the watercourse on the said two
karams or carving out new watercourse beyond the said
two karams. Therefore, by putting the above said
suggestion and by not brining on record anything
adverse to the said suggestion, the plaintiffs have
admitted that the defendants are reconstructing the
watercourse on the same place where it exists from the
last 30-35 years.
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16. The counsel for the plaintiffs have submitted that
the defendants department has not got done any
demarcation before reconstruction of the watercourse
whereas it was mandatory upon it to do so. However, I
find that this contention of the counsel for the plaintiffs
is having no substance of merit at all. The plaintiffs
have not produced on record any evidence to show if it
was mandatory upon the defendants to get demarcation
of the land of watercourse before reconstruction of
watercourse which is already running at the spot.
Otherwise also, as the defendants have just started the
work of reconstruction of the watercourse which
already exists at the spot from the last 30-35 years, then
in my opinion there was no necessity upon the
defendants to seek demarcation of the land.
Further, if the watercourse is in the area of the
suit property owned by the plaintiffs and as it is running
from the last 30-35 years, then the plaintiffs have
appropriate remedy under law to seek possession of the
same by adopting due process of law but they cannot
seek injunction against the defendants for restraining
them from reconstructing or making the watercourse
cemented on the place where it is running from the
last 30-35 years.
17. In view of this, the plaintiffs have failed to prove
the onus of this issue, therefore, this issue is decided
against the plaintiffs and in favour of the defendants."
7.4 From a perusal of above extracted judgment, it is evident
that the water course is running from the last 30-35 years at the same
place and the Department was reconstructing the water course in question
on the same place where it exists. Therefore, once the petitioners have
failed to show that the water course has been restored/constructed in their
land, there is no scope for any interference by this Court in the finding
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returned by the Canal Authorities. Rather, the learned Civil Court has
gone to the extent of saying that if the water course is in the area of the
suit property owned by the plaintiffs (petitioners herein) and as it is
running from the last 30-35 years, then the plaintiffs (petitioners herein)
have appropriate remedy under law to seek possession of the same after
adopting due process of law. No such steps appear to have been taken by
the petitioners.
8. Keeping in view the aforementioned facts and circumstances,
I do not find any merit in the instant writ petition and the same is
accordingly dismissed.
9. Pending application (s), if any, shall also stand closed.
(HARSH BUNGER)
JUDGE
04.09.2024
sjks
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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