JUDGMENT RAKESH KUMAR JAIN, J. In this Public Interest Litigation, the petitioner has made twofold prayers, firstly, to issue direction to the respondents to take immediate steps to stop unauthorized and illegal construction and narrowing down Sukhna Choe in village Baltana by the developers/ colonizers and, secondly, to notify the said Choe under Section 55 of the Northern India Canal Drainage Act, 1873 (for short the Act). Choes and rivers are the natural system of drainage of rainy water. Sukhna Choe starts from Sukhna Lake located at Chandigarh. During the rainy season, when water of Sukhna Lake exceeds its capacity, it is released in Sukhna Choe which passes through villages Zirakpur, Kishangarh, Gazipur and finds exit into village near Nagla. Initially, there was no population in the catchment area of Sukhna Choe causing any hindrance in the natural flow of rain/storm water but with the increase of population, the width of Sukhna Choe has been squeezed on account of illegal construction, although the natural course of Sukhna Choe is recorded as Gair Mumkin Nadi in the revenue record. It is claimed by the petitioner that several tones of garbage collected from the area is dumped into this Choe and one of the main sewerage of the town flows into it with hundred liters of polluted water. The entire rainy water of the Air Force Station flows through this Choe and it passes through and goes into Ghaggar river, but due to blockage of the Choe, the area is being flooded every time during the rainy season. It is also claimed by the petitioner that the State can protect the Choe by issuance of a notification under Section 55 of the Act, but no action has been taken so far. During the course of hearing, Director, Local Bodies, Punjab (respondent No. 3) was directed to submit status report with regard to the illegal construction at village Baltana and the steps taken by the Municipal Council, Zirakpur. During the course of hearing, Director, Local Bodies, Punjab (respondent No. 3) was directed to submit status report with regard to the illegal construction at village Baltana and the steps taken by the Municipal Council, Zirakpur. In pursuance thereof, an affidavit dated 06.01.2012 was filed by M.S. Aujla, Director Town Planning, Local Government, Punjab on behalf of respondent No. 3 in which he apprised the Court that a notification dated 22.02.2011 under the Act has been issued by the Department of Irrigation whereby various Khasra Numbers situated around the Sukhna Choe in Hadbast No. 47, village Baltana, Tehsil Dera Bassi, District SAS Nagar, Mohali have been specified and the Executive Engineer, Patiala Drainage Division, Patiala and his official/workmen were directed to prevent all the public/autonomous body, person or persons from creating any obstructions by making any type of construction or by covering the Sukhna Choe in the said area. It is also stated that the directions have been issued to remove all the obstructions created on the Sukhna Choe so that the natural flow of rainy water in the Choe is maintained and not obstructed or diverted anyway. The Drainage Department and the Revenue Department made a survey and as per its report dated 28.11.2011, some of the Khasra Numbers mentioned in the notification referred to above, were found as under:- (i) Khasra Nos. 947, 948 and 951 are situated in between Sukhna Choe and the Baltana Road. The owners of these Khasra Nos. have constructed shops in their land after getting the Building Plan sanctioned from the Municipal Council, Zirakpur. The above said constructions are in existence prior to the issuance of the above mentioned notification. (ii) Apart from the above mentioned Khasra Nos. the private owners have constructed their residential houses in Khasra Nos. 723, 724, 837, 838, 839, 841, 842, 843, 844, 850, 851, 852, 853, 854, 855, 880, 889, 890 after getting the building plans sanctioned from the Municipal Council, Zirakpur before the issuance of the notification. In the remaining Khasra Nos. i.e. Khasra Nos. 933min, 1015min, 1023min, 1013, 1012, 1016min, 1017, 969min, 903, 904, 905, 906, 907, 908, 911, 912, 913, 914min, 915min, 916min, 932, 933, 934, 935, old Cremation Ground, a Park, a Police Post, a ground of Radha Swami Satsang, a building of Valvet Resort and a Choice Resort and shops are in existence. In the remaining Khasra Nos. i.e. Khasra Nos. 933min, 1015min, 1023min, 1013, 1012, 1016min, 1017, 969min, 903, 904, 905, 906, 907, 908, 911, 912, 913, 914min, 915min, 916min, 932, 933, 934, 935, old Cremation Ground, a Park, a Police Post, a ground of Radha Swami Satsang, a building of Valvet Resort and a Choice Resort and shops are in existence. The building plan of Valvet Resort has been approved by the Municipal Council, Zirakpur prior to the issuance of notification. So far as the cremation ground, a park and a quarter constructed in the park meant for gardener temporarily given to the Police Department for using as Police Post is concerned these are situated in Khasra Nos. 932 to 935 on the Municipal Land. The Choice Resort and shops are in existence on the private land and prior to the formation of Municipal Council, Zirakpur in the year 1999." It is also stated in the said affidavit that no permission has been granted by the Municipal Council, Zirakpur to any person for raising construction in the area of Sukhna Choe after the issuance of the notification dated 22.02.2011. It is pertinent to mention that the notification No. 4/7/2011-1(W)(1)/543 dated 22.02.2011 has been issued under Section 55 part VII of the Act giving specific Khasra Numbers of villages Baltana (Hadbast No. 47), Bishangarh (Hasbast No. 45), Gajipur (Hadbast No. 50) and Nagala (Hadbast No. 51) which covers the Sukhna Choe. With the issuance of the notification dated 22.02.2011, one of the prayers made by the petitioner in this writ petition has been met. Proceeding further with the case, as the Court wanted to know about the area on which the Sukhna Choe, as on date, is flowing, following order was passed on 05.03.2012:- "To enable the court to pass correct and effective orders in the matter the realities prevailing as on date on the ground are required to be known by the court. As the contesting parties are in dispute on the issues, we are of the view that a court-appointed Commissioner should look into the matter and submit a report to the court with regard to the existence of the Sukhna Choe in village Baltana, a part of Zirakpur, District Mohali as of today. As the contesting parties are in dispute on the issues, we are of the view that a court-appointed Commissioner should look into the matter and submit a report to the court with regard to the existence of the Sukhna Choe in village Baltana, a part of Zirakpur, District Mohali as of today. The Commissioner will indicate the total area of the land, as per the revenue record, which has been registered as gair mumkin nadi and the area over which the choe as on date is flowing, if at all. For the said purpose, the Commissioner will consult the revenue records for which all co-operation and assistance will be provided by the concerned department and the officers of the State of Punjab. Shri H.C. Arora, a learned counsel of this court is appointed as the Commissioner who will submit his report after due verification within a period of six weeks from today. Shri Arora will be paid a consolidated fee of Rs. 50,000/- for his efforts which will be paid to him by the State of Punjab after submission of the necessary report by Shri Arora. List on 04.05.2012. Needless to say, the court-appointed Commissioner Shri Arora will be at liberty to call for and have a meeting with the concerned officers of the revenue department and such other departments/corporations that may be necessary. For the performance of the duties assigned to him by this order, Shri Arora shall inspect the court record and copies of all relevant papers as may be pointed out by him will be furnished to him by the registry forthwith." In terms of the aforesaid order, Shri H.C. Arora, Advocate was appointed as Local Commissioner who submitted his report dated 16.05.2012, which reads as under:- "Total area of land which has been registered as gair mumkin nadi. 1. That the expression gair mumkin nadi indicates the area of land, which is part of water channel etc. of permanent nature, and which takes away the lands for being used for agricultural purposes. 1. That the expression gair mumkin nadi indicates the area of land, which is part of water channel etc. of permanent nature, and which takes away the lands for being used for agricultural purposes. However, it has been conveyed to me both by the learned Counsel for the petitioner and the officials of revenue and drainage department, that the most of the land under gair mumkin nadi in village Baltana is used for sowing wheat crop in the bed of Sukhna Choe, although during the rainy season from July to September every year, on account of floods, the land cannot be used for cultivation. 2. That as per Misal Hakiat for the year 1959-60, obtained by me from Revenue Patwari, Halqa Lohgarh, Sh. Jaspal Singh, the land measuring 828 Bighas, 14 Biswas was recorded as gair mumin nadi. A true copy of the aforesaid document is enclosed as Annexure LC-2 with this report. 3. That as per the jamabandi for the year 2007-08, 614 Bighas, 11 Biswas land has been recorded as gair mumkin nadi. A true translated copy of the aforesaid jamabandi for the year 2007-08 is enclosed as Annexure LC-3. Thus, during the period from the year 1959-60, the land measuring 214 Bighas, 3 Biswas, which was earlier shown as gair mumkin nadi has been converted into cultivable land and/or some structures have come up on the same. I have personally checked and totaled the figures given in the said Jamabandi, and found that an area of 614 Bighas, 11 Biswas is the area shown in that Jamabandi as gair mumkin nadi. 4. That as per information given to me by Revenue Patwari, Sh. Jaspal Singh, the jamabandi for the year 2007-08 is the latest jamabandi prepared by the Revenue Department. Thus, as per revenue records, the land measuring 614 Bighas, and 11 Biswas falling under Village Baltana is registered as gair mumkin nadi on which the Sukhna Choe, as on date, is flowing. 5. That on my request, Revenue Patwari, Sh. Jaspal Singh, has produced before me a Shajra Killabandi of village Baltana (i.e. Physical map of village Baltana, showing measurements through a system of squares and rectangles) showing the area under Sukhna Choe. 5. That on my request, Revenue Patwari, Sh. Jaspal Singh, has produced before me a Shajra Killabandi of village Baltana (i.e. Physical map of village Baltana, showing measurements through a system of squares and rectangles) showing the area under Sukhna Choe. A true copy of the aforesaid map, with the captions and scheme of colours showing the type of land and construction, translated by me only to the relevant extent, is enclosed as Annexure LC-4. The route over which the natural water of Sukhna Choe flows at present is shown in black coloured line. The huge variation/difference in the extent of land that was shown as gair mumkin nadi under Sukhna Choe in the year 1959-60, viz-a-viz the extent of area now shown under the said Sukhna Choe cannot be explained with the help of aforesaid map. The area shown in orange colour shows Radha Swami Satsang Bhawan constructed with the area of Sukhna Choe in Khasra No. 1017. The present route of Sukhna drain (during non-rainy season) is shown in blue colour. A perusal of the aforesaid map, annexure LC-4, shows that there is a police chowki in Khasra No. 933, a cremation ground in Khasra No. 934 and a park in Khasra Nos. 935 and 932. Sh. Jaspal Singh, Revenue Patwari, also told me that certain areas falling under Sukhna Choe, on which public passage, burial place, park, Radha Swami Satsang Bhawan etc. have come up, have been excluded while showing the total area of Sukhna Choe as gair mumkin nadi in the jamabandi for the year 2007-2008. Thus, the total area over which water of Sukhna Choe flows (during rainy season) in village Baltana at present, as per revenue records, extends over 614 Bighas and 11 Biswas. 7. That a perusal of the notification, annexure LC-1/3, issued under Section 55 of the Northern Indian Canal & Drainage Act, 1873, also reveals that Khasra Nos. 932, 933, 934, 935, 1017, on which the Radha Swami Satsang Bhawan (Khasra No. 1017), Park (Khasra No. 932 and 935), Burial place (Khasra No. 934), and Police Chowki (Khasra No. 933) have come up, are also included in the area from which the obstructions are required to be removed in pursuance to the said notification. 932, 933, 934, 935, 1017, on which the Radha Swami Satsang Bhawan (Khasra No. 1017), Park (Khasra No. 932 and 935), Burial place (Khasra No. 934), and Police Chowki (Khasra No. 933) have come up, are also included in the area from which the obstructions are required to be removed in pursuance to the said notification. It has been conveyed to me by the learned counsel for the petitioner, and the officials of revenue and drainage department also, that during July to September every year, the rain water of Sukhna Choe overflows the Park, the burial place and the Police Chowki (Police Post), whereas the Radha Swami Satsang Bhawan is not affected by rain water of Sukhna Chow, as its plinth has been raised to a considerable height. MY FINDING ON THE ISSUE REFERRED TO ME Thus, my finding is that as per revenue records, the area over which water of Sukhna Choe, as on date flows (during rainy season) in village Baltana, and which has been shown as gair mumkin nadi in the revenue records, extends over 614 Bighas, and 11 Biswas." In view of the aforesaid report, following order was passed by this Court on 10.07.2012 – "At the time of arguments, it has been brought to our notice that the very small portion of Sukhna Choe carrying the flow of the rainy water is in existence and its large portion has been encroached up. Let State of Punjab ascertain the above said fact and also put up a scheme as to how much land is available to widen the said Sukhna Choe so as to increase the flow of water; whether it can be brick-lined or not. Affidavit of Secretary, Department of Irrigation and Draining indicating the above facts be filed before the next date of hearing. If need be, the demarcation of the area falling under Sukhna Choe be done for the said purpose before the date fixed. On request, adjourned to 11.09.2012." In view of the aforesaid order, an affidavit dated 07.09.2012 of K.B.S. Sidhu, Principal Secretary, Department of Irrigation, Punjab was filed in the Court. The relevant extract of the affidavit is as follows:- "3. That as per site it is submitted that during lean period creek of Sukhana Choe is flowing in a width varying from about 35 to 75 ft. The relevant extract of the affidavit is as follows:- "3. That as per site it is submitted that during lean period creek of Sukhana Choe is flowing in a width varying from about 35 to 75 ft. but during heavy rains/floods the water flows by spreading in entire bed width of Sukhna Choe which is minimum 275 ft. or more as verified at site. There are encroachments in the Sukhana Choe bed but they are prior to issuing of notification under Section 55 of Northern India Canal & Drainage Act, 1873 dated 22.02.2011 (Annexure R-1). 4. That the available minimum land width of Sukhana Choe is approximately 275 ft. or more. The ownership of land as per Zamabandi for the year 2003-04 stands in the name of Zimedars/Panchayats etc. and the type of land has been shown as Gair Mumkin Nadi/Barani etc. etc. The nature of most of the land is Gair Mumkin Nadi. 5. That a scheme can be prepared for widening and brick lining of Sukhana choe by constructing embankments on both sides. The parameters will be worked out after proper design keeping in view catchment area, discharge and other date. Sukhana choe is in private/panchayat land and for the implementation of any scheme/project land will have to be acquired." The second prayer of the petitioner is for taking immediate steps to stop unauthorized and illegal construction of narrowing down the Sukhna Choe in village Baltana. It is admitted by the Principal Secretary, Department of Irrigation, Punjab that there are encroachments in the Sukhna Choe Bed and it has also come in the report of the Local Commissioner that Sukhna Choe area has been squeezed from 828 Bighas 14 Biswas to 614 Bighas 11 Biswas. Moreover, as per Jamabandi for the year 1959-60 of village Baltana, the entire land which forms the course of the Choe is recorded as Gair Mumkin Nadi owned and possessed by the Nagar Panchayat Deh but as per Jamabandi for the year 2007-08, the land underneath the Gair Mumkin Nadi, which vests in the Nagar Panchayat, has been sold, prima facie without any title. In the aforesaid circumstances, in order to protect the Sukhna Choe, a natural rain water rivulet, and to save other areas of town from flooding during the heavy rains, we direct the respondent No. 1 – (i) To demarcate the land under the Sukhna Choe. In the aforesaid circumstances, in order to protect the Sukhna Choe, a natural rain water rivulet, and to save other areas of town from flooding during the heavy rains, we direct the respondent No. 1 – (i) To demarcate the land under the Sukhna Choe. (ii) Initiate action for removal of unauthorized construction which has been raised in the Sukhna Choe Bed by purchasing the land from the persons who had no transferable title. (iii) Frame a scheme for widening and brick lining of Sukhna Choe by constructing embankments on both sides, within a period of 6 months from the date of passing of the order. With the aforesaid directions, the present writ petition is disposed of.