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2016 DIGILAW 1615 (PNJ)

Ram Singh v. Superintending Canal Officers

2016-06-03

PARAMJEET SINGH DHALIWAL

body2016
JUDGMENT Mr. Paramjeet Singh Dhaliwal, J.:- In compliance of the order dated 27.05.2016, costs of Rs.2,000/- have been deposited and photocopy of receipt dated 01.06.2016 has been produced in the Court which is taken on record. 2. Instant writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari quashing the order dated 07.10.2013 (Annexure P-5) passed by respondent No.2-Divisional Canal Officer and the order dated 12.06.2014 (Annexure P-6) passed by respondent No.1-Superintending Canal Officer whereby they have ordered consolidation of two outlets bearing Nos.61425-R Behman Rajbah and 62145-L Behman Rajbah at Outlet No.62145-L by reviewing the order dated 12.04.2006 (Annexure P-1) passed by respondent No.2-Divisional Canal Officer. 3. The facts, in brief, relevant for disposal of this writ petition are to the effect that the petitioners are residents of village Balluana. Source of irrigation to their fields is the canal water only. Outlet No.62145-L Rajbah Behman was running earlier and allegedly some of the shareholders who were on the tail end, were not getting proper irrigation from the said outlet. They approached the Divisional Canal Officer by filing an application for splitting of outlet No.62145-L Rajbah Behman and for setting up a new outlet No.61425-R for area measuring 255.52/239.82 acres. It was mentioned that outlet is on the one side and shareholders are having their land on the other side, therefore, they are not getting proper irrigation through siphon as discharge through siphon is less. Ultimately vide order dated 12.04.2006 (Annexure P-1), outlet No.62145-L was splited and separate outlet No.61425-R was set up for the area measuring 255.52/239.82. Earlier watercourses of both the outlets were kacha and thereafter they have been made pucca by the Punjab Water Resources Management and Development Corporation Limited. After splitting of the outlets by the Divisional Canal Officer, the private respondents and some of other shareholders submitted application to respondent No.2-Divisional Canal Officer for consolidation of the outlets. On notice, the petitioners and other shareholders appeared and opposed the demand of the private respondents with the averments that watercourses of both the outlets have been constructed and brick-lined. However vide impugned order dated 07.10.2013 (Annexure P-5), the Divisional Canal Officer allowed the prayer of the private respondents and others and ordered consolidation of both the outlets, which allegedly amounts to review of the earlier order dated 12.04.2006. However vide impugned order dated 07.10.2013 (Annexure P-5), the Divisional Canal Officer allowed the prayer of the private respondents and others and ordered consolidation of both the outlets, which allegedly amounts to review of the earlier order dated 12.04.2006. Feeling aggrieved, the petitioners and other shareholders preferred appeal before respondent No.1- Superintending Canal Officer who has dismissed the same vide impugned order dated 12.06.2014 (Annexure P-6). Hence, this writ petition. 4. Upon notice, the respondents put in appearance through their counsel. Respondent Nos.1 and 2 and respondent Nos.3 to 6 filed their separate written statements. It is averred that rightholders of RD No.62145-L have been using the brick lined watercourse as warabandi has been fixed since 1983. The watercourse on which warabandi was fixed, has been brick-lined as per discharge of outlet No.62145-L to serve the total area of outlet of that period. The Punjab Water Resources Management and Development Corporation Ltd. has not bricklined the main sanctioned watercourse of outlet No.62145-L in the year 2008. Annexures P-3 and P-4 have no concern with the main watercourse of outlet No.62145-L. Field Staff has recommended consolidation of both the outlets keeping in view prospects of better irrigation. The petitioners did not file any objection to the scheme prepared and published under Sections 30-A and 30-B of the Northern India Canal and Drainage Act, 1874. Other averments in the writ petition have been denied and dismissal of the same has been prayed for. 5. I have heard learned counsel for the parties and perused the record. 6. Learned counsel for the petitioners vehemently contended that earlier on the application of private respondents, outlet No.62145-L was splited and new outlet No.61425-R was set up vide order dated 12.04.2006 (Annexure P-1). Subsequently, the impugned order dated 07.10.2013 (Annexure P-5) passed by respondent No.2-Divisional Canal Officer is the review of order dated 12.04.2006. As such, the impugned orders passed by the canal authorities are not sustainable in the eyes of law. 7. Per contra, learned State counsel vehemently contended that the private respondents had committed a mistake and they were not aware of the consequences that if the outlet is splited, speed of water will be slow and their fields will not be properly irrigated. 8. 7. Per contra, learned State counsel vehemently contended that the private respondents had committed a mistake and they were not aware of the consequences that if the outlet is splited, speed of water will be slow and their fields will not be properly irrigated. 8. Learned counsel for respondent Nos.3 to 6 vehemently contended that due to splitting of outlet, flow i.e. velocity of water has decreased as a result of which they are not getting proper irrigation. The private respondents were not aware of the consequences of splitting of outlet. 9. I have considered the rival contentions of learned counsel for the parties. 10. In pursuance of the order dated 29.10.2015, Mr. Upkaranpal Singh, Divisional Canal Officer appeared in Court on 30.11.2015 and stated that there is some difficulty in splitting the outlets. He was directed to file affidavit, after visiting the spot, regarding possibility of irrigation from the new outlet No.61425 and extent of irrigation from the already existing outlet No.62145 to the land of the private respondents and also report regarding existence of watercourse AB shown with crosses, which is stated to be demolished at the spot. 11. In compliance of the order dated 30.11.2015, Mr. Upkaranpal Singh, Divisional Canal Officer filed his affidavit dated 12.12.2015, a relevant extract of which reads as under: “4. That the land of the respondents namely, Shri Kuldeep Singh son of Shri Ajaib Singh, Shri Balwinder Singh son of Shri Malkit Singh, Shri Gurcharan Singh son of Shri Major Singh and Shri Gurjant Singh son of Shri Dalip Singh is being irrigated from the new Outlet at RD- 61425/R, Behman Distributary. The old bricklined main watercourse of 2'-3” width of old combined outlet is existing at site. Regarding possibility of irrigation from new outlet RD-61425/R, it is submitted that the velocity (speed) of the water in main watercourse (of old combined outlet having width of 2' 3") is very slow since the discharge is only 0.73 cusec (i.e. less than 1.00 cusec) (copy of A-Form is attached as Annexure R-1) and the flow of water in the existing watercourse was observed to be weak. The main watercourse will be able to carry the discharge (2.07 cusec) of combined old outlet (i.e. before splitting) at RD-62145/L. The watercourse of some individual branches has been bricklined with width of 1'-4" to carry discharge of new outlet at RD-61425-R. 5. The main watercourse will be able to carry the discharge (2.07 cusec) of combined old outlet (i.e. before splitting) at RD-62145/L. The watercourse of some individual branches has been bricklined with width of 1'-4" to carry discharge of new outlet at RD-61425-R. 5. That the irrigation from the already existing outlet at RD-62145/L (i.e. before splitting into two outlets) to the land of the respondents would be better than that from outlet at RD-61425/R as by addition of area of outlet RD- 61425/R into existing outlet at RD-62145/L the velocity of water will improve there by resulting in better flow in the main pucca water course existing at site. The water course of individual branches of some shareholder have been bricklined with width of 1' 9" for discharge of new outlet at RD-62145/L. 6. That the water course AB is not existing at site. The Shajra (latha) available with revenue patwari of village Balluana shows that the water course AB is not marked as consolidation water course. (copy of Shajra (latha) attached as Annexure R-2). Otherwise water course AB being in running condition at that time was made pucca in pursuance of order dated 24.06.83 passed by DCO. The pucca water course is existing at site on both sides of demolished water course marked AB.” 12. Admittedly, with the closure of new outlet and merger of it with old outlet, there will be no effect on the watercourses, as the watercourses were bricklined as per the earlier joint outlet prior to the creation of new outlet. Sub paragraph No.5 of para No.13.1 of the Punjab Irrigation Manual, as amended, reads as under: “(1). No new flow outlet, except for special reasons and with the previous sanction of the Chief Engineer, should be sanctioned for ordinary cultivation with a discharge of less than one cusec (in the case of perennial canals) and one cusec at normal supply (in the case of Sutlej Valley nonperennial canals). Note- This does not apply to Western Jamuna and Sirhind Canals where a new outlet may be granted for a minimum C.C.A of 300 acres. (2) In the case of sanctioned garden and orchards receiving special supply of canal water in the minimum limited for a separate flow outlet is half cusec. Note- This does not apply to Western Jamuna and Sirhind Canals where a new outlet may be granted for a minimum C.C.A of 300 acres. (2) In the case of sanctioned garden and orchards receiving special supply of canal water in the minimum limited for a separate flow outlet is half cusec. When such garden areas are combined with areas under ordinary cultivation, this concession can only be availed of, if the discharge for garden area alone does not work out to less than half a cusec. (3) (a) In the case of lift outlets, however, a separate outlet may be sanctioned by Superintending Engineer for a single Jhallar without reference to Chief Engineer. The capacity of the outlet will in this case be that authorised for 80 acres. (b) While 50 per cent extra discharge should be allowed to Jhallari outlets, the authorized full supply discharge of the channel at its head should be calculated as if irrigation was done by flow. This “jhallari” concession shall not be given to areas under gardens and orchards for which extra supply of canal water is sanctioned even when such areas are irrigated by means of “jhallars.”. Note – 50 per cent extra discharge referred to above, refers to purely Jhallari outlets and the pumping plants are excluded from this concession.” 13. A perusal of the instructions contained in sub-paragraph No.5 of para No.13.1 of the Punjab Irrigation Manual makes it clear that the order dated 12.04.2006 (Annexure P-1) has been passed contrary to the said instructions. No new flow outlet, except for special reasons and with the previous sanction of the Chief Engineer, should be sanctioned where discharge is less than one cusec (in the case of perennial canals) and one cusec at normal supply (in the case of Sutlej Valley nonperennial canals). There is a specific note that these instructions do not apply to Western Jamuna and Sirhind Canals where a new outlet may be granted for a minimum C.C.A of 300 acres. It is pertinent to mention here that the area in question is being irrigated from Sirhind Canal. The authorities splited the new outlet, as stated earlier, which was in fact contrary to the instructions contained in sub-paragraph No.5 of para No.13.1 of the Punjab Irrigation Manual. It is pertinent to mention here that the area in question is being irrigated from Sirhind Canal. The authorities splited the new outlet, as stated earlier, which was in fact contrary to the instructions contained in sub-paragraph No.5 of para No.13.1 of the Punjab Irrigation Manual. There is a categoric finding vide impugned orders that due to splitting of outlet, velocity (speed) of water has decreased which creates difficulty for irrigating the fields. Keeping in view the facts and circumstances of the case, both the canal authorities have rightly come to the conclusion that new outlet be closed and merged with the earlier outlet. The size of outlet can be changed again in accordance with law, if the same was changed for implementing the order dated 12.04.2006 (Annexure P-1). In fact, there is no change in the width of old bricklined watercourse as its size remains the same as it was prior to the earlier splitting. The same has been specifically explained in para No.4 in the affidavit dated 12.12.2015 filed by Mr. Upkaran Pal Singh, Divisional Canal Officer. The irrigation is valuable right of a farmer and merely on the ground that the parties had earlier asked for splitting of outlet, subsequent application cannot be held to be barred as the proceedings are summary in nature. The canal authorities have recorded a finding that the private respondents and other shareholders will get better irrigation with the merger of outlet. The impugned order dated 07.10.2013 (Annexure P-5) passed by respondent No.2-Divisional Canal Officer is not a review of order dated 12.04.2006 (Annexure P-1), rather it is a fresh order which has been passed after considering the circumstances at the spot, relying upon the reports of field staff. Both the canal authorities have come to the conclusion that due to splitting of outlet, flow i.e. velocity of water has decreased due to which the private respondents were suffering irrigation loss. Otherwise also, as per the instructions contained in sub paragraph No.5 of para No.13.1 of the Punjab Irrigation Manual, no new flow outlet, except for special reasons and with the previous sanction of the Chief Engineer, should be sanctioned where discharge is less than one cusec (in the case of perennial canals) and one cusec at normal supply (in the case of Sutlej Valley non-perennial canals). In view of this, the order dated 12.04.2006 (Annexure P-1) is not sustainable in the eyes of law. 14. In view of above discussion, I do not find any illegality or perversity in the impugned orders. Dismissed. No order as to costs.