Daya Singh vs Superintending Canal Officer, Amritsar

Jawahar Lal Gupta, J.—The 3rd respondent filed a petition with the grievance that the water channel had been wrongly demolished by the present petitioner. He prayed for its restoration. The Division Canal Officer vide his order dated December 1.1997 held that "the Opposite Party by demolishing the existing water course has caused loss to the applicant.....because this canal water course appears to be demolished". Resultantly, he passed an order u/s 30-FF(2) of the Northern India Canal and Drainage Act, 1873 that the water course be restored. Aggrieved by the order, a copy of which has been produced as Annexure P1 with the writ petition, the petitioner filed an appeal before the Superintending Canal officer. The appellate authority considered the matter. Its finding may be usefully reproduced. It reads as under :

"The Appellant has stated that he has not demolished any watercourse. The Opposite party has stated that my land is cultivated from the land passing through the land of the appellant. After perusing the file it is not believable that the water course BE out of ABCDEF has not been demolished any saying that there is no water course is belied by Ghaurdari from Sauni 1992 to Kharif 1995 which shows that the irrigation is done from the water course and it proves the demolition of the water course. Therefore, in view of the above and in view of the production of the crop, the demolition part DE from the water course ABCDEF of village Ghesal Khasra No. 19M/4/2-5 and 20 M/l on its northern side is ordered to be restored as per the order of the Divisional Canal Officer, UBDC. Gurdaspur under provision 30-FF(4) of Northern India Canal and Drainage Act 8 of 1873 which as amended from time to time is upheld and the appeal is dismissed."

A copy of this order has been produced as Annexure P4 with the writ petition. Aggrieved by the order, the petitioner has approached this Court through the present writ petition. It is alleged that the authorities have erred in ordering the restoration of the water course. It is prayed that the impugned orders, copies of which have been produced as Annexures P1 and P4 be quashed.

Two separate written statements have been filed on behalf of respondent. In the reply filed on behalf of respondents No. 3 it has been specifically averred that the water course was running for the last more than 30 years. The 3rd respondent has been paying the charges to the authorities. He has produced the reports of the Ziledar as Annexures R3/2 and R3/3. Even the receipts regarding payment for November 23, 1965 to the year 1989 have been produced as Annexures R3/4 to R3/9. On this basis, it is claimed that the action of the respondents in ordering the restoration of the water channel is absolutely legal and deserves to be upheld.

Learned counsel for the parties have been heard.

The solitary contention raised by Mr. Bedi, learned counsel for the petitioner, is that u/s 30-FF of the Act a water channel can be ordered to be restored only if it is found to have been legally sanctioned. Learned counsel has referred to the decision of a Division Bench of this Court in Jagar Singh v. Superintending Canal Officer and others 1972 PLJ 147 to contend that only a water course sanctioned by law or sanctioned by agreement or the one prescribed byway of easement can be ordered to be restored. Since the water course in the present case does not fall within any of these three categories the claim made by the 3rd respondent could not have been sustained. The claim made on behalf of the petitioner has been controverted by Mr. Kanwaljit Singh, learned counsel for the 3rd respondent.

In the written statement filed by the 3rd respondent. it has been categorically averred that the "water course is running and functioning.....for the last over 30 years". Still further, reports submitted by the Ziledar as also the receipts regarding payment of revenue for supply of water have been produced. The petitioner has not controverted the averments by filing any replication despite the fact that the written statement had been filed as far back as August, 1999. In this situation, the claim made on behalf of the 3rd respondent appears to be correct.

Mr. Bedi contends that the receipts are not in favour of the 3rd respondent. This aspect has been explained by the counsel for the respondent by pointing out that there are various persons who are getting irrigation from the water channel in dispute. The receipts being old had not been preserved by the 3rd respondent. However, the receipts which could be located have been produced. These fortify the contention that the water channel was actually in existence as the landowners had paid the revenue for the irrigation facilities provided by the Canal Department. In our view, the contention raised on behalf of the 3rd respondent is logical and tenable.

It may also be mentioned that petitioner had not contended before the Appellate Authority that the water channel had not been in existence for a long time and that it ought not be restored. The contention was only to the effect that he had not demolished the water channel. Thus, the plea which is now sought to be raised had in fact not been raised before the Appellate Authority. In any event, the averment in the written statement having not been controverted, we cannot accept the contention. The decision in Jagar Singh''s case (supra) is of no avail to the petitioner as the case of the 3rd respondent clearly falls within the ratio of the decision.

No other point has been raised.

In view of the above, we find no merit in this petition It is, consequently, dismissed. No costs.

Petition dismissed.