JUDGMENT Mr. Rameshwar Singh Malik J.(Oral): - C.M. No. 13387 of 2009 1. Applicant seeks permission to place on record the copy of Warabandi dated 8.1.2009, as Annexure R-1. Application is allowed, subject to all just exceptions. Annexure R-1 is permitted to be taken on record. Civil miscellaneous application stands disposed of. C.M. No. 18279 of 2009 2. Applicant seeks permission to place on record the reply on behalf of respondent No.4. Application is allowed, subject to all just exceptions. Reply on behalf of respondent No.4 is permitted to be taken on record. Civil miscellaneous application stands disposed of. Civil Writ Petition No. 11299 of 2009 3. Feeling aggrieved against the order dated 2.6.2009 (Annexure P-3), dismissing the revision petition of the petitioner by Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur-respondent No.1, thereby upholding the order dated 4.12.2008 (Annexure P-2) passed by the Divisional Canal Officer, Abohar Canal Division-respondent No.2, whereby appeal of the petitioner against order dated 29.7.2008 passed by respondent No.3 sanctioning an additional Nakka (outlet) in favour of respondent No.4, was dismissed, petitioner has approached this Court, by way of instant writ petition invoking the extra ordinary writ jurisdiction of this Court under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari, for quashing of the above said orders. 4. The brief facts of the case as per record, are that respondent No.4 moved an application before the Deputy Collector, Abohar Canal Division-respondent No.3, to the effect that two additional Nakkas be sanctioned up to 15 karams, ahead of Killa Nos. 189/5 and 188/1, on the stone line for irrigating his land falling in Killa Nos. 189/5 and 189/6-1. The application moved by respondent No. 4 was processed by respondent No.3 for the purpose of Warabandi (turn of water) at watercourse No. 18725/L, Dulatpura Minor, Alamgarh, Tehsil Abohar, District Ferozepur. Respondent No. 3 took the decision on 29.7.2008 (Annexure P-1), which showed that he sought report from the Ziledar. This order further shows that Ziledar, after conducting inspection at the site, submitted amended warabandi. Thereafter, it is stated that notice was sent to the petitioner under Section 68 of the Northern India Canal & Drainage Act, 1873 ( “Act of 1873” for short). This order further shows that Ziledar, after conducting inspection at the site, submitted amended warabandi. Thereafter, it is stated that notice was sent to the petitioner under Section 68 of the Northern India Canal & Drainage Act, 1873 ( “Act of 1873” for short). In response thereto, petitioner appeared and made a statement before respondent No.3, as recorded in the impugned order dated 29.7.2008, at page No. 14 of the paper book, that since turn of water of the petitioner was sanctioned at serial No. 32, the additional Nakkas demanded by the applicant respondent No.4 herein, will cause loss of irrigation to the petitioner. The petitioner also submitted that since respondent No.4 had his turn of water on another watercourse also, he was getting sufficient water. Thus, petitioner submitted that an additional Nakka in favour of respondent No.4 be not sanctioned. However, it seems that the plea raised by the petitioner did not find favour with respondent No.3 and he passed the order dated 29.7.2008 (Annexure P-1), sanctioning two additional Nakkas in favour of respondent No.4. 5. Dissatisfied with the order dated 29.7.2008 (Annexure P- 1) passed by respondent No.3, petitioner filed his appeal before respondent No.2. The appeal of the petitioner was partly allowed and respondent No.4 was provided one additional Nakka, instead of two, as provided by respondent No.3. 6. Both the parties were dissatisfied with this order. Petitioner filed a revision before respondent No.1 against the above said order dated 4.12.2008, whereas respondent No.4 filed his appeal before respondent No.1 against the same order dated 4.12.2008. The contention of the petitioner was that respondent No.4 was not entitled for any additional Nakka, whereas the contention of respondent No.4 was that two additional Nakkas be sanctioned in his favour. Respondent No.1, vide impugned order dated 2.6.2009, dismissed the revision petition filed by the petitioner and upheld the order dated 4.8.2008 passed by respondent No.2. 7. While issuing notice of motion on 30.7.2009, this Court passed the following order:- “Ld. Counsel for the petitioner submits that the warabandi of the parties had been fixed as per Annexure P5. A reference has been made to the site plan (P6). 7. While issuing notice of motion on 30.7.2009, this Court passed the following order:- “Ld. Counsel for the petitioner submits that the warabandi of the parties had been fixed as per Annexure P5. A reference has been made to the site plan (P6). It is contended that the land is orange colour is that of respondent No.4 and he has Nakka at points A, C and B. The land of the petitioner is in green colour and he has Nakka at point D and he gets water from point C. In between points C and D, the respondent No. 4 demanded two Nakkas at points Y and Z. However, point Z has wrongly been sanctioned by recording a purported consent of the petitioner, which the petitioner never made. A reference is made to the affidavit (P4) deposed by the petitioner. Ld. Counsel for the Caveator respondent No.4 submits that the Nakka at point Z for the land of respondent No.4 has rightly been given as the length of the land of respondent No.4 is longer. Besides, it is submitted that the petitioner himself had given his consent for the same. Notice of motion for 15.9.2009. Mr. Peeush Gagneja, Adv. for the caveator-respondent No.4 accepts notice and wants time to file reply. He may do so by the adjourned date with an advance copy to the counsel opposite. Meanwhile, operation of the impugned order dt. 4.12.2008 (P2) and 2.6.09 (P3) shall remained stayed.” 8. In response to the notice of motion having been issued, respondents No. 1 to 3 filed their joint written statement whereas separate written statement was filed by respondent No.4. 9. Learned counsel for the petitioner submits that petitioner never gave his consent for providing an additional Nakka in favour of respondent No.4. He submits that it is clear from the order dated 29.7.2008 (Annexure P-1) passed by respondent No.3 that petitioner strongly opposed the prayer made by respondent No.4. He further submits that petitioner also filed a specific affidavit to this effect, vide Annexure P-4, that he never gave any consent for providing an additional Nakka in favour of respondent No.4. Learned counsel for the petitioner next contended that had the petitioner given his consent, he would have never filed the revision petition before respondent No.1. He further submits that petitioner also filed a specific affidavit to this effect, vide Annexure P-4, that he never gave any consent for providing an additional Nakka in favour of respondent No.4. Learned counsel for the petitioner next contended that had the petitioner given his consent, he would have never filed the revision petition before respondent No.1. Referring to the copy of site plan (Annexure P-6), learned counsel for the petitioner submits that since respondent No.4 was already enjoying the facility of irrigation from three Nakkas at Points A, B and C shown in the site plan, there was no justification, whatsoever, with the respondent authorities to sanction another Nakka at point Z, which comes between Nakkas at point C and D, thereby causing serious prejudice to the turn of water of the petitioner. Further, he submits that respondent No.4 was owning about 10 acres of land and was already irrigating it from three Nakkas, but still not satisfied, whereas the petitioner was owning about 8 acres of land and had been irrigating his land from one Nakka only. Learned counsel for the petitioner concluded by submitting that in view of the fact situation obtaining at the site, the impugned orders were patently arbitrary on the face of it and were liable to be set aside. 10. Per contra, learned counsel for respondents No. 1 to 3 very fairly states that in view of the factual position obtaining at the site, as per site plan Annexure P-6, he was not in a position to defend the impugned orders. However, he contends that since respondent No. 2 passed the impugned orders on the consent of the petitioner, the present writ petition was not maintainable. 11. Learned counsel for respondent No.4, while supporting the contention raised by the learned counsel for the State, submits that the impugned orders were fully justified in law as well as on facts because the petitioner gave his consent before the authorities at the time of hearing. He further submits that since the petitioner gave his consent, he was estopped from backtracking and the present petition was liable to be dismissed. 12. He further submits that since the petitioner gave his consent, he was estopped from backtracking and the present petition was liable to be dismissed. 12. Having heard the learned counsel for the parties, after careful perusal of the record and giving our thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned orders passed by the respondent authorities, are not sustainable in law and the present petition deserves to be allowed, for more than one reasons, which are being recorded hereinafter. 13. A bare perusal of Annexure P-6 (site plan) would show that an additional outlet (Nakka) at point Z has been provided to respondent No.4, in spite of the fact that he was already enjoying the facility of irrigation from three sanctioned outlets (Nakkas) at point A, C and B, which were more than sufficient to irrigate his entire land. Further, there is hardly any distance between the already sanctioned outlet (Nakka) at point B and additionally sanctioned outlet (Nakka) at point Z. It is also clear that additionally provided outlet (Nakka) at point Z comes between the already existing outlets (Nakka) at points C and D. It is also not disputed that petitioner was availing the irrigation facilities from the outlet (Nakka) at point C, which was ending at point D and additionally provided outlet at point Z will, thus, cause serious prejudice to the petitioner. 14. The factual position as depicted in the site plan (Annexure P-6) has not been denied by the learned counsel for the respondents. This fact is also admitted that respondent No.4 was already having three outlets (Nakkas) at points A, C and B. During the course of hearing, learned counsel for the respondents could not substantiate their arguments, as to how respondent No.4 was entitled for another Nakka at point Z, when he was already having three outlets (Nakkas) at point A, C and B. 14-A. So far as the alleged consent given by the petitioner is concerned, it does not appeal to reason as to why the petitioner would have given his consent. Petitioner is an illiterate person and further, had he given his consent before respondent No.4, he would have never filed his revision petition before respondent No.1. Petitioner is an illiterate person and further, had he given his consent before respondent No.4, he would have never filed his revision petition before respondent No.1. Besides this, a close perusal of the site plan Annexure P-6, would show that since respondent No.4 was already using three sanctioned Nakkas at points A, C and B, whereas the petitioner was using only one Nakka, there was no compelling necessity for the petitioner to give alleged consent for additional Nakka in favour of respondent No.4. Rather, that was to become a regular source of affecting the irrigation facility of the petitioner. 15. There is no denying the fact that the alleged consent given by the petitioner was neither recorded in a black and white in any order, nor the same has been submitted as such in the form any affidavit with his signatures. In fact, it was an oral consent which has been specifically denied by the petitioner by submitting a sworn affidavit. In this view of the matter, the respondent authorities proceeded on a wholly misconceived approach, while passing the impugned order on the basis of the alleged consent given by the petitioner, which was never given. 16. Since the impugned orders came to be passed under Section 68 of the Act of 1873, it would be appropriate to refer to the relevant provisions of law. Sub section 1 and Sub section 2 of Section 68 of the Act of 1873, which are relevant for the purpose of decision of this case, read as under:- “68.Power of Deputy Collector to order use or distribution of water and settlement of differences as to mutual rights and liabilities of persons interested in watercourse. -- (1) The Deputy Collector may, if in his opinion it is necessary so to do, pass an order as to the use of distribution of water from a watercourse amongst persons in any estate or a group of estates or in any holding or group of holdings in such estate or estates; Provided that no such order shall be passed by the Deputy Collector without making an inquiry into the matter and without giving a notice, to all the persons interested that, ‘on a day to be named in such notice, he shall proceed to inquire into the said matter. (2) Whenever a difference arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a watercourse, any such person may apply in writing to the Deputy Collector stating the matter in dispute.” 17. Further, a careful perusal of the record would show that respondent No.3 had not conducted the inquiry as envisaged under Section 68 of the Act of 1783, before passing the impugned order dated 29.7.2008. It seems that his subordinate officer, who was Ziledar, has prepared and submitted the amended warabandi, which was accepted by respondent No.3 and his order was upheld by respondents No. 1 and 2, as well. I say so because no such finding was recorded by respondent No.3, while passing the impugned order. 18. Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, it is unhesitatingly held that the impugned orders dated 22.7.2008 (Annexure P-1) passed by the learned Deputy Collector, Abohar Canal Division, Abohar, order dated 4.12.2008 (Annexure P-2) passed by the learned Divisional Canal Officer, Abohar Canal Division, Abohar and the order dated 2.6.2009 (Annexure P-3), passed by the learned Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur, are illegal and the same are declared, as such. Thus, the impugned orders are ordered to be set aside. Resultantly, the instant writ petition stands allowed. ------------------ Friends Co-operative House Building Society (Registered) v. State of Haryana