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2015 DIGILAW 1993 (PNJ)

Arjan Singh @ Jit Singh v. State of Punjab

2015-11-02

PARAMJEET SINGH

body2015
JUDGMENT Mr. Paramjeet Singh, J.: (Oral) - Instant writ petition has been filed under Articles 226/227 of the Constitution of India for setting aside the order dated 10.06.2013 (Annexure P-17) passed by respondent No.2-Divisional Canal Officer, Faridkot Canal Division, Faridkot and the order dated 04.10.2013 (Annexure P-18) passed by respondent No.3-Superintending Canal Officer, Sirhind Canal Circle, Ludhiana. 2. Brief facts of the case are to the effect that petitioners and respondent No.6 moved application before the Sub Divisional Canal Officer, Faridkot to the effect that they have been irrigating their land from a khal existing on the common watt of rect. No.60 killa nos.21-22, rect. no.63, killa no.1-2/1, rect. no.59, killa nos.23-24-25 and rect. no.64 killa nos.2, 3, 4, 5 and further it approaches to common ‘watt’ of rect. No.64 killa nos.3-4, 8-7 and 13/1-14. It was averred that respondent No.4-Swarnjit Singh demolished the watercourse about a year back and also under-laid the pipes in rect. No.64 killa Nos.3-4/7-8/13/1-1 and also constructed a Hauji in rect. No.64, killa No.13/1. The case was got considered by the various authorities. Ultimately, the matter was considered by the Divisional Canal Officer who ordered restoration of the demolished watercourse vide order dated 24.06.2011 (Annexure P- 13). Thereafter, respondent Nos.4 and 5 preferred appeal before the Superintending Canal Officer, who accepted the appeal and set aside the order dated 24.06.2011, vide order dated 22.11.2011 (Annexure P-14). Thereafter, the petitioner filed writ petition before this Court which was dismissed vide order dated 04.09.2012 (Annexure P-15), however, the matter was remanded and the Divisional Canal Officer was directed to pass a fresh order after spot inspection. In pursuance of the order dated 04.09.2012 (Annexure P-15), the Divisional Canal Officer disposed of the matter while admitting that although water channel was in existence but subsequently it was demolished and it could not be ascertained at what point of time it was in existence. Being dissatisfied, the petitioners as well as respondent Nos.4 and 5 filed two separate appeals before respondent No.3-Superintending Canal Officer, who upheld the order dated 10.06.2013 (Annexure P-17) passed by the Divisional Canal Officer, however, directed the Divisional Canal Officer that if concerned share holders would apply for khal only against compensation, their applications would be considered. Being dissatisfied, the petitioners as well as respondent Nos.4 and 5 filed two separate appeals before respondent No.3-Superintending Canal Officer, who upheld the order dated 10.06.2013 (Annexure P-17) passed by the Divisional Canal Officer, however, directed the Divisional Canal Officer that if concerned share holders would apply for khal only against compensation, their applications would be considered. It was also directed that if Arjan Singh wanted khal, he could apply to the competent authority under the provisions of the Northern India Canal and Drainage Act, 1873. Hence, this writ petition. 3. I have heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioners vehemently contends that a watercourse was in existence at the spot and on site inspection, the Divisional Canal Officer recorded that the same has been demolished. The Superintending Canal Officer has wrongly recorded a finding that the watercourse was not in existence. Learned counsel further contends that the watercourse was restored by the Panchayat after effecting compromise between the parties and relies upon compromise Annexure P-4 (Colly.). 5. Per contra, learned State counsel and learned counsel for respondent Nos.4 and 5 vehemently oppose the contentions of learned counsel for the petitioners and contend that actually, there was no watercourse at the spot and they have been irrigating their fields through tubewell and they have temporarily carved out khal for irrigation through tubewell only. The finding recorded by the Superintending Canal Officer is in consonance with the existing position at the spot. 6. I have considered the rival contentions of learned counsel for the parties. 7. It is pertinent to mention here that the oral statement may not be correct, it may be due to certain reasons or party faction among villagers whereas a document is more relevant to prove the existence of watercourse i.e. Warabandi where ‘Naka taking’ and ‘Naka giving’ are specifically mentioned. Warabandi could only show the points from where a party is taking water to irrigate its fields and giving naka to the other party next in turn. However, the petitioners have not placed on record the same to prove the existence of watercourse and thereby hence withheld the best evidence and, therefore, adverse inference has to be drawn against them. Warabandi could only show the points from where a party is taking water to irrigate its fields and giving naka to the other party next in turn. However, the petitioners have not placed on record the same to prove the existence of watercourse and thereby hence withheld the best evidence and, therefore, adverse inference has to be drawn against them. In the absence of any document on record to indicate the existence of watercourse, merely on the basis of oral statement and inspection by the Divisional Canal Officer, it cannot be presumed that watercourse was in existence at the spot. It is the case of the petitioners that they have been irrigating their land from a khal existing on the common watt, but perusal of site plan (Annexure P-6) reveals that it is going in between the land of respondent No.4, not on the common watt. If that is so, it will certainly bifurcate the land of respondent No.4. So far as the watercourse which is coming downward touching the land of Kuldip Singh and leading upto the land of Arjan Singh is concerned, the same is also not on the common ‘watt’. The site plan clearly shows that watercourse passing through rect. No.64 killa nos.3-4, 8-7 and 13/1-14 is also not on the common ‘watt’ and it also bifurcates the land. In such circumstances, it cannot be believed that the alleged demolished watercourse was on the common ‘watt’ touching the land of Kuldip who made a statement in favour of petitioner No.1-Arjan Singh. Rather, perusal of jamabandi reveals that respondent No.4 has set up his own tubewell for irrigating his land as he has a big chunk of land at that place. It is common knowledge that for irrigating their land from tubewell, owners carve out temporary watercourse and it is always for their personal use and the same cannot be used by others. 8. In view of above, I do not find any illegality or perversity in the impugned orders. 9. Dismissed. 10. However, it will be open for the petitioners to approach the authority concerned for providing a watercourse in accordance with the provisions of the Northern Indian Canal and Drainage Act, 1873 by way of acquisition of land in accordance with law. ---------0.B.S.0------------