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2017 DIGILAW 731 (PNJ)

Shree Bhagwan v. State of Haryana

2017-03-15

AMIT RAWAL

body2017
JUDGMENT : AMIT RAWAL, J. 1. The petitioners, being represented, by Mr. Sudhanshu Makkar, Advocate have approached this Court for issuance of writ in the nature of certiorari for setting aside “the Project Scheme for Rehabilitation of Sanga Minor from RD 0 to 35993 by providing PH (Pump House)” on the premise that it is in violation of provisions of Section 17 and 18 of the Haryana Canal Drainage Act, 1974. 2. The Sanga Minor of Loharu Water Service Circle, Bhiwani emerges out of Dadri Distributory at RD 31000-R. Prior to 1975 when the lining of this channel was carried out by the respondent-department, the water was flowing by gravity and the cultivators used to have their lifts. However, in the year 1976-77, a pump house was installed in order to remove these isolated lifts but due to power interruptions and deliberate disturbances caused by mischievous cultivators of upstream reaches of Sanga Minor, the pump house could not function properly/continuously and the irrigation was, resultantly, reduced to 10.58% only. 3. The Executive Engineer, Bond Water Services Division, Bhiwani while exercising the power of Divisional Canal Officer, prepared a scheme for 'Remodelling of Sanga Minor from RD 0 35993 by removing pump house” at the estimated cost of Rs. 119.09 lakhs. The aforementioned scheme according to the averments made in the writ petition was published in the year 2006 and the salient feature was to remove the pump house and re-line the channel so that the water flows by gravity only and the said scheme was implemented and channel was remodelled by removing the pump house in the year 2007-08. 4. While implementing the aforementioned scheme, the condition of keeping FSL at the tail as 708.70 was not meted out by the respondent-department at the instance of interested persons/stake holders of upstream villages, as there was a difference in the levels also. However, after change of the Government in the year 2014, several cultivators of upstream reach of Sanga Minor i.e. of village Badala, Kaila and Sanga allegedly requested the Government for lining of the minors by seeking a stream remodelling and the Executive Engineer, Bond W/s Division in exercise of his power of Divisional Canal officer, prepared a new scheme for 'Rehabilitation of Sanga Minor from RD 0 to 35993 by providing Pump House” at estimated cost of Rs. 258.07 lacs and the pump house with lift of 4.0 at RD 15000 had been proposed purportedly on the demand of the shareholders of the upstream. Annexures P-2 and p-3 are the scheme and the site plan. The aforementioned scheme has not been prepared in accordance with the provisions of Section 17 of the Act as no objection has been sought and therefore, liable to be set aside. 5. Mr. Sudhanshu Makkar has also drawn the distinction between the previous and the existing scheme by referring to same, owing to the fact that the Culturable Command Area which was earlier 5848 acres has been increased to 6591 acres in the new scheme, though the length and discharge remains the same. 6. Per contra, Mr. Sandeep S. Mann, Sr. DAG, Haryana has drawn attention of this Court to the provisions of Section 2(15) i.e. the definition of water course to contend that water course means any channel including all its subsidiary works which is supplied with water from a canal but not maintained at the cost of the State Government and is sanctioned under this Act or is in existence under an agreement or by prescription, in essence, the present water course was being maintained at the cost of the Government and therefore, would not include in the definition. In this regards, he has drawn attention of this Court to letter dated 24.09.2009 (Annexure R-6) to contend that a proper survey was done and it was found that the existing levels had already been intimated to the concerned authorities and only a nominal difference was shown which was negligible and there would not be any problem of levels. By referring to the aforementioned, he submitted that once the water course does not fall under the definition of water course, there was no occasion for the authorities to cause the publication of the scheme under Sections 17 and 18 of the Act as only the following matters i.e. construction, alteration, extension and alignment of any watercourse or realignment of any existing water course, much less, allotment of new areas to a watercourse would be falling within the draft scheme. 7. 7. He further submitted that it is pleaded case of the petitioners that earlier also a scheme was floated vide Annexure P-1 whereby the pump was installed but, according to the averments, was not utilized for lifting of the water, owing to different levels as the residents of the local area had been using kundi connections for unauthorized use of electricity, much less, theft of electricity. Now the double bond cable has been installed to avoid the theft of electricity and almost 90% work has been done. The pump house helps the irrigation of the land at the tail end of the stream and therefore, the petitioners have not been able to set out a single ground in the writ petition as to how and what manner, they shall be prejudiced, thus, urges this court for dismissal of the writ petition. 8. I have heard learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the submissions of Mr. Makkar, for, no doubt during the course of hearing Mr. Makkar has drawn attention of this Court to Section 2(1) of the aforementioned Act i.e. the definition of canal which would also include all canals, channels and reservoirs constructed, maintained or controlled by the State Government, much less, all water courses but a caveat has been put to the definition of water courses which reads as under:- “2 (15) “water course” means any channel including all its subsidiary works which is supplied with water from a canal but not maintained at the cost of the State Government and is sanctioned under this Act or is in existence under an agreement or by prescription.” 9. It is conceded position on record that this channel was being maintained by the Government, therefore, in my view, promulgation of the scheme for installing a pump house, as per the provisions of the aforementioned Act, is to discharge the water to the tail area. Already 90% work has been done and only 10% work left incomplete at the time when this Court had granted status quo. In my view, it would help the land owners to irrigate the land situated at the tail end of the stream, owing to the difference in levels. 10. Already 90% work has been done and only 10% work left incomplete at the time when this Court had granted status quo. In my view, it would help the land owners to irrigate the land situated at the tail end of the stream, owing to the difference in levels. 10. The petitioners have not been able to point out a single instance of inconvenience or prejudice, owing to the aforementioned arrangements already undertaken by the Government for installation of new pump house which would also be run through the solar energy as per the information provided by Mr. Sandeep S. Mann, Sr. DAG, Haryana during the course of arguments. The Superintending Engineer vide letter dated 24.09.2009 wrote to the Chief Engineer communicating the fact that there would be nominal difference which is negligible and the problem does not seem to be of levels. 11. For the reasons aforementioned, the petitioners have not been able to make out a case within the parameters of judicial review. No ground for interference is made out. The writ petition stands dismissed.