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2017 DIGILAW 82 (PNJ)

Dara Singh v. State of Haryana

2017-01-12

AMIT RAWAL

body2017
JUDGMENT Mr. Amit Rawal, J.: (Oral) - The petitioner has approached this Court by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking quashing of the order dated 12.05.2014 (Annexure P-8) passed by respondent No.2 whereby revision petition filed by respondent No.5 has been accepted and the previous orders dated 05.06.2013 (Annexure P-4) and 19.08.2013 (Annexure P-5) passed by the Sub Divisional Canal Officer (hereinafter called as “SDCO”) and Divisional Canal Officer (hereinafter called as “DCO”) respectively have been set aside. 2. Mr. Shalender Mohan, learned counsel appearing for the petitioner submits that the petitioner is a shareholder of outlet No.RD 132890-R Kheri Distributory and irrigating his field for the last 15 years from water course running in the middle line of murba No.126 and 139 in killa No.126//21x25 and 139//1x5. The private respondent dismantled the running water course marked as AB. Aggrieved against the action of the private respondent, the petitioner lodged an FIR No.44 dated 06.05.2014 (Annexure P-2) and also approached the respondent No.4 i.e. SDCO and the parties were called, much less, report from the Ziledar Bhattu was called for. As per his report dated 13.05.2013, it was found that the water course has been dismantled by the private respondent. The respondent No.4 vide order dated 05.06.2013 allowed the application of the petitioner and ordered for restoration of the water course. 3. The private respondent No.5 assailed the aforementioned order before respondent No.3 i.e. the Divisional Canal Officer and the order was upheld vide order dated 19.08.2013. The order of DCO was again challenged before respondent No.2-Superintending Canal Officer, who vide impugned order dated 04.10.2013 set aside the order by holding that the revision petition was not maintainable but thereafter vide order dated 28.02.2014 passed in CWP No.23455 of 2013, the matter was remanded back to be decided afresh. The order of DCO was again challenged before respondent No.2-Superintending Canal Officer, who vide impugned order dated 04.10.2013 set aside the order by holding that the revision petition was not maintainable but thereafter vide order dated 28.02.2014 passed in CWP No.23455 of 2013, the matter was remanded back to be decided afresh. However, respondent No.2 vide order dated 12.05.2014 (Annexure P-8) set aside the orders of SDCO and DCO, in essence, dismissed the application of the petitioner for restoration of the water course, thus, urges this Court for quashing the order dated 12.05.2014 as the same is illegal and arbitrary and not sustainable on following counts:- (i) Respondent No.2 has not appreciated the fact that the disputed water course was running from last 50 years and was, thus, falling within the embrace of Section 2(15) of the Haryana Canal and Drainage Act, 1974 (hereinafter called as the “1974 Act” which provides three types of watercourse namely (a) sanctioned water course, (b) existence under an agreement and (c) by prescription. (ii) The scope of interference of Section 24 of the Canal Act is very limited inasmuch as that once it has been found that the water course was demolished, it has to be restored. The report of the Ziledar has totally been ignored, thus, there is grave illegality. (iii) The plea of respondent No.5 regarding the alternative water course in murba No.139 belonging to the petitioner is not tenable, for, the aforementioned water course had been dismantled at the middle line of murba No.126 and 139. He has also referred to the copy of warabandi for the year 1984-85 to contend that the name of the petitioner is figuring at Sr. No.34 and therefore, the existence of the watercourse is well established. (iv) There was fraud in the warabandi regarding the alignment. The petitioner approached the Deputy Collector and requested for restoration of the earlier warabandi and the same was allowed vide order dated 06.08.2013 (Annexure P-12). (v) Respondent No.2 has failed to assign any reason for setting aside the order. The scope of revision is limited. There has to be a grave illegality and perversity which has not been pointed out, thus, urges this Court for setting aside the impugned order by restoring the previous orders passed by the SDCO and DCO. 4. Per contra, Mr. (v) Respondent No.2 has failed to assign any reason for setting aside the order. The scope of revision is limited. There has to be a grave illegality and perversity which has not been pointed out, thus, urges this Court for setting aside the impugned order by restoring the previous orders passed by the SDCO and DCO. 4. Per contra, Mr. Ashok Verma, learned counsel appearing for private respondent No.5 submits that the alleged water course in dispute AB never existed at the spot but in order to get a shorter and new watercourse even without paying any compensation and without getting the same sanctioned under Section 17 of the Act, the petitioner moved an application before the SDCO by raising the plea of alleged dismentalling. 5. He further submits that mere existence of sanction of warabandi/turn of the water does not, prima facie, show the existence of water course at the spot. In support of his contention, he relies upon the judgment of Division Bench of this Court in Sukhdev Singh Vs. Sub Divisional Canal Officer Bani W.S. Sub Div. Sirsa and others 2001(2) PLJ 457 . 6. In support of his contention, he also referred to the site plan (Annexure R-5/1) to contend that land shown in green and orange colour is of the respondent and water course ADCEF is touching the holding of Bhup Singh son of Bhagmal and Lakhmi Chand son of Narpat. It clearly depicts that the holding of the petitioner, has no connection whatsoever with the water course AB whereas the land of the petitioner is situated far off and there is no existence of water course. The site plan has not been disputed by way of any rejoinder. It is a certified copy obtained from the office of Sub Divisional Officer, Bhattu, Fatehabad. 7. He further submits that shareholding of the petitioner is not disputed but vehemently denied that the petitioner had been irrigating his field through the water course allegedly running in the middle line of murba No.126 and 139 in Killa No.126//21x25 and 139//1x5. The FIR lodged was totally false with a mala fide intention. The impugned order of the SDCO for restoration of the water course on permanent basis is totally against the provisions of the Act. The FIR lodged was totally false with a mala fide intention. The impugned order of the SDCO for restoration of the water course on permanent basis is totally against the provisions of the Act. In fact, no satisfaction was recorded that the watercourse was falling under the provisions of Section 2 (15) of 1974 Act, thus, urges this Court for dismissal of the writ petition by upholding the order under challenge. 8. In support of his contention, relies upon the judgment rendered by Division Bench of this Court in Sube Singh and another Vs. Sh. R.S. Bamel, Sub Divisional Canal Officer Hisar Water Services Division and others 2003(2) PLJ 236 to contend that there cannot be an order of restoration of water course merely because the water outlet/naka in existence and there were some remains of dismantled watercourse. Unless and until the authorities arrived at a conclusion whether the dismantled water course was sanctioned or running on the basis of some agreement between the parties or by prescription, it is only then the order can be passed. 9. I have heard learned counsel for the parties, with their able assistance seen the records of the Courts below and of the view that there is no force and merit in the submissions of Mr. Shalender Mohan. The impugned order passed by respondent No.2 is perfectly legal and justified and has rightly exercised the powers of revision, for, all the authorities below i.e. SDCO and DCO have not taken into consideration that the khaka plan showed that there is no link available at site for the holding of the petitioner even if the alleged dismantled alignment is restored. 10. The site plan (Annexure R5/1) relied upon by the private respondent is not disputed by filing any rejoinder or any affidavit. The bigger brown area belongs to the petitioner whereas the area belonging to the respondent No.5 is orange and green and the persons having land adjoining to the respondent i.e. Bhup Singh and Lakhmi Chand, have no objection with regard to the water course ADCEF. It does not depict any water course at any point of time to the land of the petitioner. It does not depict any water course at any point of time to the land of the petitioner. The alleged dismantled water course AB is between the land of the petitioner and private respondent and there can be no grievance of petitioner with regard to the same as it was the water course provided to the fields of the petitioner as well as Bhup Singh and Lakhmi Chand. 11. I am in agreement with the ratio decidendi culled out in the judgment rendered by Division Bench of this Court in Sube Singh’s case (supra) as it squarely applies to the facts and circumstances of the case. The turn of the water is not a ground for restoration of the water course. It has to be established that there was any sanction of agreement or by prescription there was a water course, in essence, the petitioner has failed to establish the ingredients of Section 2 (15) of the 1974 Act and this fact has not been noticed by the authorities i.e. SDCO and DCO and therefore, rightly so, their orders had been set aside by the SCO. 12. For the reasons aforementioned, I do not intend to differ with the order under challenge passed by the Superintending Canal Officer as no ground is made for interference, much less, judicial review. The writ petition is dismissed.