Darshan Singh vs Superintending Canal Officer and Others

V.K. Bali, J.—Petitioner Darshan Singh seeks a writ in the nature of Certiorari so as to quash order dated 19th January, 1993 (Annexure P-4) passed by the Superintending Canal Officer vide which the appeal filed by Gurpiar Singh respondent No. 4 was accepted setting aside the order dated 29th July, 1992 passed by the Divisional Canal Officer, Faridkot Canal Division, thus, fixing his turn of water at account No. 57/4 from account No. 92/1.

Brief facts of the case reveal that petitioner and respondents No. 4 to 6 are share-holders getting irrigation from water course No. 16650/R. Whereas respondents No. 4 to 6 had their turn of water fixed at sanctioned water course, the petitioner had dug a private water course in his own land and was irrigating his land from there. Inasmuch as Jangir Singh had also some of his land mixed up with that of the petitioner he was using the private water course, of the petitioner so as to irrigate the same. The respondent aforesaid, however, demolished a portion of the sanctioned water course, thus, stopping the water supply to Balbir Singh respondent No. 5. Aggrieved, Balbir Singh filed an application to the Divisional Canal Officer Faridkot for the restoration of the demolished water course which was allowed by the Divisional Canal Officer vide his order dated 17th July, 1991. Jangir Singh agitated the matter by way of appeal which was dismissed by the Superintending Canal Officer on 8th January, 1992. It was held in the aforesaid order that it was a case of demolishing existing water course where even the turn of the parties was fixed. In as much as respondents No. 4 and 5 were unable to get water supply from anywhere during the period, litigation referred to above, was pending. The said respondents started using the private water course of the petitioner who could not withstand pressure exerted upon him by respondents No. 4 and 5 and helplessly watched them doing so hoping that after the sanctioned water course is restored, the said respondent would take supply of water form the sanctioned water course only. The hope of the petitioner did not materialise as respondents No. 4 and 5 filed an application before the Deputy Collector u/s 68 of the Northern India Canal and Drainage Act, 1873 for shifting their turn of water to account No. 57/4 and 57/5 of water course of the petitioner. Jangir Singh respondent No. 6 whom the petitioner had permitted use of his water course compromised with respondents No. 4 and 5, thus agreeing to allow them the use of water which was obviously at the cost of the petitioner.

This matter was contested by the petitioner on various grounds inclusive of that so far his water course is concerned, the same did not exist in the papers being a private water course but the prayer of respondents No. 4 and 5 was allowed by the Deputy Collector vide his order dated 28th May, 1992. Being aggrieved, the petitioner agitated the matter before the appellate authority. The Divisional Canal Officer Faridkot before whom the appeal came up for hearing vide his order dated 29th July, 1992 set aside the orders passed by the Deputy Collector Faridkot holding that since the original water course AB had been restored where the turn of the parties, too, was fixed, there was no reason whatsoever for shifting the turns to the other water course which did not actually exist. It is against this order that Gurpair Singh filed an appeal before the Superintending Canal Officer which culminated into order Annexure P4 with the result as indicated above.

It requires to be noticed that Superintending Canal Officer after noting the rival contentions of the parties allowed the appeal by a cryptic and non-speaking order. The operative part of the order runs thus:-

"On 19th January, 1993 the file was re-examined and the undersigned came to the conclusion that the demand of the appellant was in the interest of better irrigation and no loss occasions to the opposite party. Therefore, the appeal is accepted u/s 68(6) of the Northern Indian Canal and Drainage Act, 8 of 1973 and his turn is shifted from Khata No. 92/1 and is fixed on the new water course at Khata No. 57/4. His nakka for taking water is fixed at 20 karams from 1648-49 for giving water 1626-1642 and the order of the Divisional Canal Officer, Faridkot Canal Division Faridkot and dated 29th July, 1992 is hereby set aside."

The learned counsel appearing for the petitioner vehemently contends that not only the order Annexure P 4 is against the record but the same is also result of non-application of mind and lacks even the sine qua non of judicial or quasi-judicial order being non-speaking.

The cause of the petitioner has been contested by the respondents. Respondents No. 1 and 3 have filed one written statement, the other has been filed by respondents No. 4 and 5. Inasmuch as both the written statements are identically worded, it would be sufficient if the contents of only one written statement are noticed. It has been pleaded that earlier the water course of Jangir Singh starting from Khasra No. 1628 which was ordered to be restored on the application of Balbir Singh, it did not touch the land of Darshan Singh petitioner. Before the order of restoration of said water course could be implemented, Balbir Singh, Jangir Singh sons of Surain Singh and Jangir Singh son of Mangal Singh mutually agreed to permit Balbir Singh to use the water course ABCHEFGH starting from Khasra No. 1645 at Point E of site plan Annexure R1/1. However, when Balbir Singh approached the Canal Department for changing of his turn at water course ABCDEFGH. Shri Gurpiar Singh also applied that his land cannot be properly irrigated from water course AB starting from Khasra No. 1628 as the same was at higher level and it could be best irrigated from water course ABCDEFGH. The prayer of Balbir Singh and Gurpiar Singh was accepted in the interest of best irrigation. It is further pleaded that the water course A to E is already sanctioned one and from point ''E'' onwards, the water course does not touch the land of petitioner and that his turn continues to be the same. Grant of turn to the respondents from Point ''E'' in no way effects his right nor it will cause any in-convenience to him.

The learned counsel appearing for the respondents in tune of the pleadings noticed above contends that the order in no way effects the rights of the petitioner and the same has been passed in the interest of better irrigation.

After hearing the learned counsel for the parties, we are of the considered view that Superintending Canal Officer while allowing the appeal of respondent Gurpiar Singh has simply ignored the facts which stood proved on the records of the case. It has been established that the contesting respondents were getting turn of water from a a sanctioned water course and a portion of which i.e. AB was demolished. It was either the grace of the petitioner or his helplessness that the said respondent started water from the water course which was running in the land of petitioner and which was admittedly not an official water course. Once the demolished water course was restored and admittedly on which water course the turn of all the respondents was fixed, there was no question for the said respondent to have continued getting water from the water course running in the filed of the petitioner. All these facts were noticed by the Divisional Canal Officer while allowing the appeal of the petitioner against the order of Deputy Collector. Superintending Canal Officer, by simply observing that the interest of irrigation will be better served if the respondents are allowed their turn of water from the new account, as noticed above, allowed the appeal and set aside the order passed by the Divisional Canal Officer. The operative part of the order has been reproduced above and the same manifests that the appellate authority did not apply its mind to the facts of the case. Rival contentions of the parties were not noticed. It is settled by now that where the rights of the parties are affected even the quasi-judicial authorities while doing so have to arrive at a conclusion by process of reasoning which is wholly lacking in order Annexure P4.

That apart, as noticed earlier, there was no occasion whatsoever to permit respondents to have their turn of water course of the petitioner when there was already a sanctioned water course and the turn of the respondents for taking water was fixed from there.

For reasons recorded above, this petition is allowed Order Annexure P4 is set aside whereas the one passed by the Divisional Canal Officer Faridkot Annexure P3 is restored. The petitioner is allowed costs quantified at Rs. 1,000/-.