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2009 DIGILAW 1998 (PNJ)

Pritpal Singh v. Superintendent Canal Officer

2009-11-17

S.S.SARON

body2009
JUDGMENT S.S. Saron, J.:- Heard counsel for the parties. 2. The petitioners seek quashing of the orders dated 25.5.2005 (Annexure P3) passed by the Superintending Canal Officer, I.B. Circle, Patiala (respondent No.1) and dated 22.12.2009 (Annexure P2) passed by the Divisional Canal Officer, Lehal Division, Irrigation Branch, Patiala (respondent No.2). 3. Respondents No.3 to 5 filed an application seeking restoration of the water course that is stated to have been demolished. It was submitted that the water course was in existence since consolidation. The petitioners stated that the alleged water course was running along the limits of village Sular and they had not demolished it. However, respondents No.3 to 5 by misleading the authorities wanted to construct a water course. The Divisional Canal Officer (respondent No.2) vide order dated 22.12.2004 (Annexure P2) accepted the application of respondents No.3 to 5 and directed the restoration of the water course. Aggrieved against the said order, the petitioners filed an appeal before the Superintending Canal Officer (respondent No.1) which has been dismissed. Against the same, the present petition has been filed. 4. Learned counsel appearing for the petitioners submits that the order dated 22.12.2004 (Annexure P2) was passed by the Divisional Canal Officer (respondent No.2) in just one day after the appeal was filed and without hearing the petitioners. It is submitted that in fact the land of respondents No.3 to 5 is on both sides of the road and canal water is not being used by either of the parties. The respondents in fact want that their tubewell water flows from one side of the land to the other side. It is submitted that respondents No.3 to 5 may lay underground water pipes for the flow of water for which the petitioners would not object subject to reasonable time and period for laying the same. 5. The said position is, however, denied by the learned counsel for respondents No.3 to 5 who has submitted that it is a case of a water course being demolished which is liable to be restored and has rightly been so ordered. 6. The dispute in the case is with regard to two parcels of land which are shown in pink colour in the site plan (Annexure P1) which is owned by respondents No.3 to 5. 6. The dispute in the case is with regard to two parcels of land which are shown in pink colour in the site plan (Annexure P1) which is owned by respondents No.3 to 5. The land of the petitioners is in green colour and is in between the two parcels of land of respondents No.3 to 5; besides, there is the land of Jagdev Singh also in between which is shown in yellow colour. According to the learned counsel for the petitioners, nobody in the village is using the water of the canals and the water course CDE is sought to be constructed by respondents No.3 to 5 so as to take their tubewell water to the land from one field to the other through the land of the petitioner. It is not in dispute that respondents No.3 to 5 do have their own tubewell which is on the right side of the road of the land of the petitioners shown in pink colour in the site plan (Annexure P1) i.e. to the right of Khasra Nos.7, 6, 10, 11, 14 and 15. In terms of the order dated 22.12.2004 (Annexure P2) it was held that the demand of respondents No.3 to 5 was genuine and acceptable because the running water course had been demolished. The petitioners, however, had not agreed that they had demolished the water course. It was observed that the existence of the water course was clear from the report of the Field Staff. Therefore, it was ordered that the water course CDE according to the site plan be restored on the Southern ‘Watt’ (boundary) of Killa No.19//3//1 and Southern and Western ‘Watt’ (boundary) of Killa No.19//2//1 under Section 30-FF of the Northern India Canal and Drainage Act, 1873. The appeal of the petitioners has been dismissed vide order dated 25.5.2005 (Annexure P3). Learned counsel for the petitioners, as already noticed, has submitted that the petitioners have no objection to the underground water pipes being laid and the same can easily carry the tubewell water. This aspect, however, is to be considered by the Irrigation Authorities and this Court in exercise of its supervisory writ jurisdiction is not to substitute its decision for that reached at by the authorities. This aspect, however, is to be considered by the Irrigation Authorities and this Court in exercise of its supervisory writ jurisdiction is not to substitute its decision for that reached at by the authorities. It is liable to be determined as a matter of fact as to whether respondents No.3 to 5 are desirous of using the tubewell water to be carried from one side of their land to the other or whether indeed the restoration of the water course is being sought for the flow of canal water. Besides, whether in any case underground laying of pipes would resolve the dispute between the parties. 7. In the circumstances, it would be just and expedient that the matter is reconsidered again by the Divisional Canal Officer after setting aside the order dated 25.5.2005 (Annexure P3) and 22.12.2004 (Annexure P2) passed by the Superintending Canal Officer (respondent No.1) and the Divisional Canal Officer (respondent No.2) respectively. 8. Accordingly, the writ petition is allowed and the impugned orders (Annexures P2 and P3) are set aside and the matter is remanded to the Divisional Canal Officer, Patiala. The parties shall appear before the Divisional Canal Officer, Patiala on 27.1.2010. ----------