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2017 DIGILAW 813 (PNJ)

Ram Niwas v. State of Haryana

2017-03-23

AMIT RAWAL

body2017
JUDGMENT Mr. Amit Rawal J.: (Oral) - The petitioners are aggrieved of the impugned order dated 16.08.2016 (Annexure P-6) of respondent No.4 i.e. the Divisional Canal Officer, whereby the application of respondent No.6 for restoration of the water course has been allowed and the order dated 24.11.2016 (Annexure P- 7) of respondent No.3-Superintendent Canal Officer and order dated 31.01.2017 (Annexure P-8) of respondent No.2-Chief Canal Officer whereby the appeals preferred against the order Annexure P-6 have been dismissed. 2. Mr. V.K. Jindal, learned Senior Counsel assisted by Mr. Maninder Singh Punia, Advocate submits that all the authorities below have committed illegality and perversity in not noticing the fact that private respondent No.6 had filed an application before respondent No.4 under Section 13 of the Haryana Canal and Drainage Act, 1974 (hereinafter called as the “Act of 1974”) but this application could not be treated under the aforementioned provisions. Section 13 of the Act of 1974 specified two conditions viz; in case of any accident happening or being apprehended by Divisional Canal Officer or any other acting under him, he could order for repairing and preventing such accident but no accident to any canal had been caused and this fact was neither observed by the Canal Officer nor by Ziledar, therefore, the application for demand of water course from point A to C and from D to E was pointless. 3. He further submits that in the appeal, the Canal Authorities have accepted the disputed water course being demolished by PWD authorities at the time of widening of the road and it was not in existence in the land of the petitioner. In these circumstances, it is a completely new alignment which cannot be ordered under Section 13 of the Act of 1974. At the best, the authorities could pass an order under Section 18(2) of the Act of 1974, thus, the orders under challenge are based upon conjectures and surmises. 4. He further submits that the land of the respondent is situated across the railway line and there is already an alternative water course and therefore, the orders under challenge ordering for restoration of the water course is wholly erroneous. In fact, the fields of the private respondent are situated on the other side of railway line for which permission of Railway Department has not been sought to cross the water of outlet RD 29325-L Barsola Feeder. In fact, the fields of the private respondent are situated on the other side of railway line for which permission of Railway Department has not been sought to cross the water of outlet RD 29325-L Barsola Feeder. The land of the respondent had been getting irrigation. In fact, the private respondent had been irrigating his field at Sr. Nos.61 and 71 through outlet No.RD 6802 TBS. 5. On the contrary, Mr. R.N. Lohan, learned counsel appearing on behalf of private respondent No.6 submits that the orders under challenge are perfectly legal and justified, thus, urges this Court for dismissal of the writ petition. 6. I have heard learned counsel for the parties and appraised the paper book. At the time when the matter was heard in preliminary hearing, this Court had issued notice of motion on the statement of Mr. Jindal to the effect that whether on the land of the petitioners or respondents, there was already a water course going through for the purpose of irrigation of the land of other co-owner or only for the petitioners’ purpose. 7. In this regard, the Divisional Canal Officer, Narwana W/S Division, Narwana has filed an affidavit dated 22.03.2017 and in paragraph 10 to 12 stated as under:- “10. That the water course in dispute is a main water course which had been running at site since the outlet was installed at site and about 250 acres was receiving irrigation at site and after demolition of water course in dispute about 250 acres area has been deprived of getting irrigation at site. 11. That the water course AEF is a personal water course of the co-sharer of the holding of petitioners which is also sanctioned in warabandi and water course AEI is a water course reserved by the Consolidation Department and after operating water course in dispute, the part of sanctioned water course A to E would not be in use after establishing the water course so sanctioned. The site plan showing the location of water course in dispute and location of personal water course sanctioned in warabandi is attached herewith as Annexure R-1 for kind consideration of this Hon’ble High Court. 12. The site plan showing the location of water course in dispute and location of personal water course sanctioned in warabandi is attached herewith as Annexure R-1 for kind consideration of this Hon’ble High Court. 12. That it is pertinent to mention here that water course from point E to G has been dug by the petitioners and other cosharer which links another water course K G at point G to carry water in their area situated in rectangle 106 and in case the water course in dispute is not allowed to be established at site about 250 acres area would be deprived of getting canal irrigation at site.” 8. On conjoint reading of the aforementioned, it is evident that the water course in dispute is main water course which is in the area of about 250 acres and after demolition of the water course in dispute, the area of 250 acres had been deprived of irrigation. The water course AEF, as per the site plan Annexure R-1, is personal water course of the co-sharer of the holding of the petitioners which is also sanctioned in warabandi and water course AE1 is a water course reserved by the Consolidation Department and after operating of the water course in dispute, the part of sanctioned water course A to E would not be in use after establishing the water course so sanctioned. The water course from point E to G has been dug by the petitioners and other co-sharers which links to another water course KG at point G to carry water in other area situated in rectangle No.106. 9. The aforementioned facts leave no manner of doubt that the orders under challenge ordering for restoration of the water course are perfectly legal and justified, particularly, when the Divisional Canal Officer in the impugned finding has proposed that alignment of water course A to C and D to E in the width of one karam (five and half feet) is sanctioned on the basis of only compensation, subject to the condition that the amount of compensation of land coming under the alignment of water course in question shall be determined according to the provisions of New Land Acquisition Act of 2013. 10. 10. The aforementioned order of the Divisional Canal Officer has been upheld by the Superintending Canal Officer and in my view, no prejudice has been caused to the petitioners as they have been ordered to be compensated. No ground for interference is made out, much less, doctrine akin to judicial review. The orders under challenge are maintained and the writ petition is dismissed.