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Judgment
Jasbir Singh, J.—Petitioners who are 46 in number, are the residents of village Risalia Khera, Keharwala and Chak Faridpur, Tehsil Rania,
District Sirsa have filed the present writ petition challenging the order passed by respondent No.3 dated 31.7.2000 (Annexure P-4) vide which
respondent No.3 has modified the order dated 7.4.2000 (Annexure P-3) passed by respondent No.2 Superintending Canal Officer, Bhakra
Water Services Circle, Sirsa.
Brief facts of this case are that the petitioners are the co-sharers in the command area of outlet RD No. 156033-R Mammer Khera Disty. They
made on application to respondent No. I with a prayer that from the present water outlet they are not getting proper irrigation as in a span of about
6 acres of land through which the water course carries water there exist 3 culverts and also the water course is curved at 2 places due to which the
flow of water is not proper and they are not getting sufficient water for irrigation of their land. A prayer was made that the Head of water outlet be
shifted to RD No.15753-R and in this manner the water course will become straight and it will enhance their irrigation. The application was sent to
the Ziledar and Sub Divisional Canal Officer, Mammer Khera. Field investigation wad done by them and both these officers recommended the
case for shifting of the water outlet as mentioned above.
On receipt of above mentioned proposal, a draft scheme was prepared u/s 17 of the Haryana Canal and Drainage Act, 1974 (hereinafter
referred to as the Act), The scheme was published, objections were invited as per law and in response thereto the private respondents put up their
appearance and they raised an objection that by shifting Head of the water outlet as proposed, their irrigation will suffer since the water course is
going to be shifted towards the down stream and they will not be getting proper water in that event. The case was taken up by respondent No. 1
who, without appreciating the entire evidence on the record and also without inspecting the site himself, rejected the draft scheme vide order dated
3.3.1999 (Annexure P-2) simply by stating that by shifting the water outlet towards the down stream side, problem will be created to the share
holders whose area falls is on the upstream side.
Petitioners feeling aggrieved by the order (Annexure P-2), filed an appeal before respondent No.2 who, after visiting the spot and appreciating
the evidence on record came to a definite conclusion that by shifting of the water outlet as proposed, the irrigation of the lands of the petitioners will
increase and he also ensured that by the change no loss is caused to the private respondents. Respondent No.2 vide his order dated 7.4.2000
allowed the appeal and ordered the shifting of water outlet as proposed in the draft scheme. The private respondents then filed an appeal before
respondent No.3, who vide order (Annexure P-4) modified that the water outlet be moved and be fixed at a common boundary line of Khasra
No.12-13, 9-8, 2-3 of Rectangle No.55.
The petitioners, feeling aggrieved by the said order, filed the present writ petition. It has been contended that respondent No.3 has passed the
non-speaking order without visiting the spot and also without looking into the evidence on record. It has further been contended that by
implementation of the order (Annexure P-4) the same problem will remain there because of which the application was moved for shifting the
existing water outlet. The water course will still remain a curved one and the flow of water will not be smooth and proper.
Upon notice respondents appeared and respondents No.4 to 12 filed their written statement contravening all the allegations made in the present
writ petition.
Counsel for the parties heard. Shri Ashok Verma, counsel for the petitioners vehemently contended that the order passed by respondent No.3
is totally a non-speaking one and he has not even looked into the site plan while ordering the modification in the order (Annexure P-3). It has
further been contended that by this modification, the problem of the petitioners will not be solved and they will not be getting any proper irrigation.
In reply to this, Dr. Gurmit Singh, counsel for the private respondents contended that since their land is situated towards the upward stream side
by the proposed change, they will not be getting any proper irrigation. It has further been contended that the proposed modification by respondent
No. 3 is just and ''proper and has been done in the interest of better irrigation.
After hearing the learned counsel for the parties, this Court is of the opinion that the arguments raised by the learned Counsel for the petitioners
seem to be correct. When the orders passed by the canal authorities are read together with the site plan (Annexure P-I), then it becomes
absolutely clear that the order (Annexure P-3) passed by respondent No.2 was just and proper. As is apparent from the site plan, earlier, out of
the water outlet No, 156033-R, the water was flowing through the brick lined water course which is shown with the green colour in the site plan.
The said water course is a curved one and as per the allegation which is not also disputed there exist 3 culverts over the water course upto point A
and naturally because of that the flow of the water will not be smooth and proper. Respondent No. 2, after visiting the spot and also looking into
the proposal prepared by the Sub Divisional Officer and the Ziledar, rightly ordered that the water outlet be shifted at point RD-157353-R which
is shown with red arrow on the site plan. If the said arrangement is implemented then the water will be running through the water course which is a
straight and naturally it will enhance the flow of water and irrigation also. The land of the petitioners is situated upto another end of the water course
i.e. in Rectangle No.36, 39, 52 and 60 etc. and if the flow of the water is not proper then there is likelihood that the land at the farthest end will not
be getting proper irrigation. Respondent No.2 kept in mind the difficulty of the private respondents also and he made a specific order that the full
supply level at point B i.e. point surrounding where the land of the private respondents is situated in Rectangle Nos.49, 50, 51, 54 and 55 be
maintained and be kept at the same level. The order passed by respondent No.2 seems to be most reasonable. Respondent No.3 without looking
into the finding given by respondent No,2 ordered the modification vide Annexure P-4 simply by saying that ''it will be in the interest of both the
parties if the water outlet is shifted to the common line of Killa No.12-13 etc''. The said finding is not supported by any reason whatsoever and as
such, the same cannot be sustained. Furthermore, it has been brought to the notice of the Court by the counsel for the petitioners that during the
pendency of the appeal before respondent No.3, the order passed by respondent No.2 was implemented and as per the said order, the water
outlet and the water course has been constructed.
Dr. Gurmit Singh, counsel for the private respondents has stated that in view of the instructions issued by the Government, the earlier order
could not have been implemented during the pendency of the appeal and the petitioners cannot draw any benefit out of the said implementation. Be
that as it may the fact remains that as per the order (Annexure P-3), the water outlet has already stood shifted and the water course has already
been brick lined.
In view of the facts stated above, the petition is allowed. Order dated 31.7.2000 (Annexure P-4) passed by the Chief Canal Officer is
quashed and order dated 7.4.2000 (Annexure P-3) passed by the Superintending Canal Officer is confirmed. No order as to costs.
Sd/- N.K. Sodhi, J.