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2011 DIGILAW 193 (PNJ)

Adeshvir Singh v. State of Punjab

2011-01-18

AJAI LAMBA

body2011
JUDGMENT Ajai Lamba, J. (Oral) :-This petition has been filed under Article 226/227 of the Constitution of India, praying for issuance of a writ in the nature of certiorari, quashing Order dated 10.7.2003 (Annexure P-3) and Order dated 14.10.2010 (Annexure P-9) passed by the authorities under the Northern India Canal & Drainage Act, 1873 (for short, ‘the Act’). 2. Arguments have been addressed in the context of site plan, placed on record as Annexure P-1. The petitioners own ancestral land measuring 11 acres, shown in green colour in site plan Annexure P-1. Subsequently, it seems that the petitioners purchased a small patch of land, adjoining the land inherited by the petitioners, measuring 1.60 acres. Since ancestral land of the petitioner was being irrigated from water outlet 116447-R Lambi Rajbaha, the land subsequently purchased by the petitioners shown in Pink, measuring 1.60 acres in Annexure P-1, was being irrigated from water outlet 112661-R Lambi Rajbaha. The petitioner was desirous of including the land subsequently purchased measuring 1.60 acres in the chak of land being irrigated from outlet 116447-R, and therefore, made an application to the authorities. 3. The authority at the lowest level in the hierarchy i.e. Divisional Canal Officer, Abohar, rejected the case of the petitioners vide Order dated 9.10.2002, placed on record as Annexure P-2. It has been found, as a matter of fact, on perusal of the entire relevant record that as per command statement, the area of the petitioners could not get better irrigation from the proposed outlet (116447- R) as compared to the outlet from which the land was being irrigated viz. water outlet 112661-R. Reason for the same has been given that water would get reduced from the proposed outlet. 4. Perusal of the order further indicates that a large majority of share holders opposed the application of the petitioners. The main objection of the existing share holders is that because of the small area sought to be shifted, the rules do not permit change in size of outlet, however, the water turn/ wari of each share holder would have to be reduced so as to accommodate the claim of the petitioners. Thus, either in equity, in law or even considering better irrigating prospects, no case in favour of the petitioners was made out. 5. The petitioners carried an appeal against Order Annexure P-2. The appellate authority viz. Thus, either in equity, in law or even considering better irrigating prospects, no case in favour of the petitioners was made out. 5. The petitioners carried an appeal against Order Annexure P-2. The appellate authority viz. Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur, remanded the case back to respondent No.2 to decide the matter afresh. Even on remand, the same order was repeated for reasons given vide Order dated 10.7.2003 (Annexure P-3). The petitioners being aggrieved by Annexure P-3, again preferred an appeal before respondent No.1. The appeal was allowed vide Order dated 13.2.2008 (Annexure P-4). 6. Aggrieved by Order Annexure P-4, respondent Nos.3 and 4 filed Civil Writ Petition No.14332 of 2008. The writ petition was allowed vide judgment dated 21.4.2010 and the matter was remanded back to respondent No.1 to decide the appeal afresh after taking into account whether area to be allocated to the outlet would adversely affect the rights of the petitioners (private respondents in the present petition) and if so, to what extent. Copy of the order has been placed on record as Annexure P-5. 7. On remand, order dated 14.10.2010 (Annexure P-9) i.e. impugned order has been passed by respondent No.1. In the impugned order, after taking into consideration the facts and circumstances of the case and the record, it has been recorded that if the land of the petitioners is included on the proposed Mogha/ outlet, even then size of Mogha/ outlet cannot be increased. Rather, the turn of the share holders would be reduced. On remand, therefore, it has been found that the rights of the private respondents in this writ petition would be adversely effected, particularly because the size of the outlet cannot be increased in view of mandate of rules. 8. Learned counsel for the petitioners contends that manifest injustice would be caused to the rights of the petitioners. Learned counsel further contends that better irrigation can be provided to the land of the petitioners from water outlet 116447-R. 9. I have considered the contentions of learned counsel for the petitioners and the caveators. 10. The application has been filed by the petitioners on purchase of 1.60 acres of land that abuts the land already owned by the petitioners. Learned counsel further contends that better irrigation can be provided to the land of the petitioners from water outlet 116447-R. 9. I have considered the contentions of learned counsel for the petitioners and the caveators. 10. The application has been filed by the petitioners on purchase of 1.60 acres of land that abuts the land already owned by the petitioners. While major portion of the land of the petitioners is irrigated from water outlet 116447-R, the newly purchased small area of 1.60 acres is being irrigated from water outlet 112661-R. It therefore follows that the petitioners want to consolidate even the irrigation source and therefore, the application has been filed for the convenience of the petitioners. 11. The authorities under the Act found that the size of outlet cannot be increased. On account of addition of the land, wari/ turn of the share holders would have to be decreased thereby adversely effecting rights of a large number of share holders. 12. Even considering the issue of better irrigation prospects, the authorities below have found that better irrigation cannot be provided to the added land of the petitioners if the area is transferred to the chak being irrigated by water outlet 116447-R. This becomes clear from perusal of order, Annexure P-2. The claim of the petitioners has been found to be not in the interest of better irrigation, and rather, if allowed, it would adversely effect the irrigation of land of other share holders of chak of land being irrigated from water outlet 116447-R Lambi Rajbaha. 13. In these circumstances, no jurisdictional error can be traced in the impugned orders. Ordinarily the authorities under the Act are best persons to assess the irrigation prospects and other circumvening circumstances before passing an order and are required to be accepted, and therefore, need to be interfered with only if the order is found to be arbitrary, perverse, without jurisdiction or passed for malafide reasons. None of the reasons can be traced in the impugned orders. 14. In view of the above, no ground for interference in extraordinary writ jurisdiction is made out. 15. The petition is dismissed. ---------0.B.S.0------------