Hans Raj Vs. State of Punjab and Others - Court Judgment

Civil Writ Petition No.18137 o”

1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.18137 of 2011 Date of Decision: May 09, 2013 Hans Raj ........Petitioner versus State of Punjab and others .........Respondents CORAM:HON'BLE Mr.JUSTICE RAMESHWAR SINGH MALIK Present: Mr.P.S.Brar, Advocate for the petitioner.

Mr.Suresh Singla, Additional A.G., Punjab.

Mr.S.P.S.Tinna, Advocate for respondent No.4.

***** RAMESHWAR SINGH MALIK J.

Feeling aggrieved against the impugned order dated 16.08.2011 (Annexure P-3) passed by Superintending Canal Officer, Ferozepur, Canal Circle Ferozepur-respondent No.2, petitioner has approached this Court by way of instant writ petition under Article 226 and 227 of the Constitution of India, seeking a writ in the nature of certiorari for quashing the impugned order.

A writ in the nature of mandamus has also been sought by the petitioner directing the respondents to implement the order dated 11.03.2011 (Annexure P-2).passed by Divisional Canal Officer, Abohar-respondent No.3, Civil Writ Petition No.18137 o”

2. vide which the demolished watercouRs.AB was ordered to be restored.

Facts first.

It is the pleaded case of the petitioner that he had been enjoying the facility of irrigation as per warabandi on outlet 81519-R Daultpura Minor, sanctioned under Section 68 of the Northern India Canal and Drainage Act, 1873 (for short “the Act”.).Warabandi is appended at Annexure P-1.

Respondent No.4 illegally and forcibly dismantled the watercouRs.AB and depicted as such in Annexure P-4, thereby causing a serious prejudice to the petitioner, leaving his fields without any source of irrigation.

Petitioner approached the Divisional Canal Officer, Abohar Canal Circle, Abohar, by moving an application seeking restoration of watercouRs.AB.

Notice was issued, parties were heard, site inspection report was sought from the concerned Canal Officer.

watercouRs.AB was found to be existing at the site as a sanctioned watercouRs.under above said warabandi.

After hearing learned counsel for the parties, the Divisional Canal Officer, Abohar, vide order dated 11.03.2011 (Annexure P-2) passed a legally justified order restoring the watercouRs.AB.

Dissatisfied, respondent No.4 filed an appeal before the Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur, who illegally set aside the order Civil Writ Petition No.18137 o”

3. passed by the Divisional Canal Officer, Abohar, by passing a cryptic and non-speaking order dated 16.08.2011 (Annexure P-3).Hence, this writ petition.

Notice of motion was issued and pursuant thereto, joint written statement was filed on behalf of respondents No.1 to 3.

Learned counsel for the petitioner submits that the Divisional Canal Officer, Abohar rightly appreciated the ground reality obtaining at the site, by seeking a site inspection report from concerned Canal Official, which was also duly supported by the relevant official record including warabandi Annexure P-1.

Having satisfied, the Divisional Canal Officer rightly passed the order dated 11.03.2011 (Annexure P-2).Petitioner has got no other source of irrigation except through disputed watercouRs.AB, which had been dismantled by respondent No.4, However, Superintending, Canal Officer, Ferozepur Canal Circle, Ferozepur proceeded on an erroneous approach while passing the impugned order dated 16.08.2011 (Annexure P- 3).setting aside the above said order dated 11.03.2011 (Annexure P-2).He further submits that Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur-respondent No.2 neither discussed not discarded but altogether illegally ignored the site inspection report of Ziledar and also the warabandi (Annexure P-1).which duly proves the existence Civil Writ Petition No.18137 o”

4. of the watercouRs.AB as a sanctioned watercourse.

He finally prays for setting aside the impugned order passed by Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur.

Per contra, learned counsel for the respondents submits that the order passed by Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur, was not suffering from any illegality and the same deserves to be upheld.

However, when a pointed question was put to the learned counsel for the State, as to whether petitioner was having any other alternate source of irrigation, except through disputed watercouRs.AB, learned counsel for the State while referring to the affidavit dated 30.04.2013 of Shri Ramesh Kumar Gupta, Divisional Canal Officer, Abohar Canal Circle, Abohar and on instructions from Shri Ishwar Singh, Ziledar, Jandwala Canal Colony, Abohar, fairly states that except the disputed watercouRs.AB, there was no other watercouRs.from which the land of the petitioner could be irrigated.

Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned order dated 16.08.2011 (Annexure P-3) Civil Writ Petition No.18137 o”

5. passed by the Superintending Canal Officer, Abohar- respondent No.2 cannot be sustained and the present writ petition deserves to be allowed for the following more than one reasons.

It has gone undisputed on the record that as per the warabandi (Annexure P-1).the watercouRs.AB was a sanctioned watercourse, under Section 68 of the Northern India Canal and Drainage Act, 1873.

Despite repeated opportunities having been granted, no written statement has been filed on behalf of respondent No.4.

Further, the order dated 11.03.2011 (Annexure P-2) passed by the Divisional Canal Officer is based on sound reasoning, referring to the official record including warabandi (Annexure P-1) and also the site inspection report submitted by the concerned revenue official.

However, impugned order passed by the Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur, is a cryptic and non-speaking order.

Neither it refers to warabandi (Annexure P-1).not it refers to the site inspection report submitted by the concerned Canal Official.

Further, respondent No.2 has also failed to appreciate the most crucial factual aspect of the matter that except disputed watercouRs.AB, petitioner had no other watercouRs.for irrigating his fields.

The written statement Civil Writ Petition No.18137 o”

6. filed by respondent No.2 is also as cryptic as the impugned order.

Having said that, this Court feels no hesitation to conclude that the impugned order passed by respondent No.2 suffers from patent illegality and same cannot be sustained.

Since, it was being emphasized on behalf of the petitioner that except the disputed watercouRs.AB, there was no other source of irrigation available for the fields of the petitioner, vide order dated 25.01.2013, the respondents were directed to clarify this factual aspect of the matter.

In compliance of the order of this Court, affidavit dated 30.04.2013 of Shri Ramesh Kumar Gupta, Divisional Canal Officer, Abohar Canal Circle, Abohar, along with Site Inspection Report (Annexure R-1) and Site Plan (Annexure R-2) has been filed.

Sub-Divisional Officer, Sub- Division Canal Abohar, inspected the site along with Halka Ziledar and Halka Patwari and found, as a matter of fact, that except the disputed watercouRs.AB, petitioner was not having any other source of irrigation.

In para 5 of the affidavit dated 30.04.2013, Divisional Canal Officer, Abohar Canal Division, Abohar submitted as under: “That it is further submitted that as per Annexure R-2 no other Khal is running to the Civil Writ Petition No.18137 o”

7. petitioner's land except the khal in question.”

Learned counsel for the official as well as private respondents could not controvert the above said latest factual aspect of the matter.

Further, while verifying that the watercouRs.AB was a sanctioned watercourse, Divisional Canal Officer, Abohar Canal Division, Abohar in para 6 of his affidavit dated 30.04.2013, submits as under: “That as per the order of the Hon'ble Court regarding watercouRs.existing is a sanctioned one or not, it is submitted that citation of judgment of this Hon'ble High Court regarding restoration of case Brij Lal V/s State of Punjab 1985 RRR (P&H) is covering the matter in question.

The relevant portion of the said judgment is reproduced herebelow:- “watercouRs.regarding which warabandi fixed under the Northern India and Drainage & Canal Act to be taken as a sanctioned watercouRs.and such a watercouRs.if demolished, can be restored under Section 30-FF-New Plea if taken before the watercouRs.if demolished, can be restored under Section 30-FF-New plea if taken before the authorities cannot be permitted to be taken before the High Court.”

Civil Writ Petition No.18137 o”

8. In view of the above said averments taken on behalf of the official respondents, it is unhesitatingly held that as per warabandi (Annexure P-1).the disputed watercouRs.AB was a sanctioned watercourse, which could not have been demolished by respondent No.4.

It was rightly ordered to be restored by the Divisional Canal Officer, Abohar Canal Circle, Abohar, while passing his order dated 11.03.2011 (Annexure P-2).The Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur fell into a serious error of law while passing his impugned order dated 16.08.2011 (Annexure P-3).which cannot be sustained.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned order dated 16.08.2011 (Annexure P-3) passed by the Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur-respondent No.2 has been found to be suffering from patent illegality and the same is hereby ordered to be set aside.

The order dated 11.03.2011 (Annexure P-2) passed by Divisional Canal Officer, Abohar Canal Circle, Abohar-respondent No.3 is ordered to be restored.

Civil Writ Petition No.18137 o”

9. Resultantly, instant writ petition stands allowed, however, without any order as to costs.

MAY 09.2013 (RAMESHWAR SINGH MALIK) ANJAL JUDGE