Gian Singh vs Superintending Engineer (Canals)

G.R. Majithia, J.

This petition is directed against the order of the Superintending Officer (Canals), Upper Bari Doab Canal Area, Amritsar dated January 4, 1993, affirming, on appeal, the order of the Divisional Officer (Canals), Majithia Division, Amritsar restoring the watercourse which was dismantled in part by the petitioner.

Sarvshri Hari Singh, Baldev Singh and Sukhdev Singh sons of Sampuran Singh of village Kotla Gujran, Tehsil and District Amritsar, moved a petition under Section 30FF of the Northern Indian Canal and Drainage Act, 1873 (for short, the Act) before the Divisional Officer (Canals), Majithia Division, Upper Bari Doab Canal, Amritsar, for restoration of the watercourse which had been dismantled by the petitioner. The Divisional Officer (Canals), after enquiry, found that the watercourse C.G.H.I. was in existence at the spot and its part `G.H.I'' had been dismantled. He ordered its restoration under Section 30FF(2) of the Act. The petitioner, aggrieved against the order of the Divisional Canal Officer, challenged the same in appeal before the Superintending Officer (Canals), Upper Bari Doab Canal, Circle, Amritsar. He got the matter enquired into through the Ziledar Ilaqa and on receipt of his report and after hearing the parties, he upheld the order of the Divisional Officer (Canals) observing thus :

"After hearing both the parties at length, it is proved that the land of Sh. Sampuran Singh had been irrigated from the watercourse G.H.I. which has been dismantled by Gian Singh etc. Keeping in view the observed facts and in the interest of irrigation, I hereby restore the watercourse `G.H.I.'' which is on the Northern Watt of 15M/10 and on the Watt of 14M/5/26 under Section 30FF(4) of the Northern India Canal and Drainage Act of 1973, as amended from time to time and thus uphold the decision of the Divisional Officer (Canals), Majithia Division and hereby dismiss the appeal of the appellant."

The conclusion arrived at by the Canal Officers in unequivocal terms establish that the watercourse `CGHI'' was in existence and part of it shown as `GHI'' was dismantled by the petitioner. The petitioner is aggressor as is found by the Canal Officers.

Learned Counsel submitted that the disputed watercourse was an unauthorised watercourse and as such the Canal Officers had no jurisdiction to order its restoration and that they can order restoration of an authorised watercourse only. In support of his submission, he relied upon Division Bench decision of this Court in Jagar Singh v. Superintending Canals Officer, Hissar Bhakra Canal Circle, Hissar, 1972 PLR 315, and a Single Bench decision of this Court in Ram Kumar v. Bhim Singh, 198 L.R.S. (Pb.) 770. In Jagar Singh''s case (supra), the Court, after examining the provisions of Sections 3(2) and 30FF of the Act, came to the conclusion that these provisions embrace within their ambit an authorised watercourse and that a watercourse as defined under the Act would not include within its ambit a watercourse which has no lawful existence. This judgment was followed in Ram Kumar''s case (supra) also.

The principal Act was amended by the Northern Indian Canal and Drainage (Punjab Amendment) Act, 1987 and after subsection (1) of Section 3 of the principal Act, subsection (1A) was inserted :

"`Temporary watercourse'' means a watercourse which has been in existence for a continuous period of not less than six months prior to the date of its demolition, alteration, enlargement on obstruction, but which may not be a recognised watercourse as hereinafter defined."

Section 30F of the principal Act was also amended and following amendments we made :

"(i) for the words `a watercourse'' and `the watercourse'' wherever occurring, the words `a watercourse of a temporary watercourse'' and `the watercourse of the temporary watercourse'' respectively shall be substituted;

(ii) in subsection (3), of the word `restoration'' the words `restoration alongwith a penalty not exceeding one thousand rupees as may be imposed by a Divisional Officer (Canals)'' shall be substituted."

The effect of these amendments is that if a temporary watercourse as defined in subsection (1A) of Section 3 of the Act has been demolished, the aggrieved party can seek its restoration under Section 30FF of the Act. These provisions were not in existence earlier. The Bench of Jagar Singh''s case (supra) was interpreting the unamended provisions of the statute. It was on that basis that the Bench came to the conclusion that under the Act no one could ask of restoration of an unauthorised watercourse. The Bench interpreted the term `unauthorised watercourse'' which has not been legally sanctioned. By virtue of the amended provisions, if a temporary watercourse has been in existence of a continuous period of not less than six months prior to the date of its demolition and it is demolished, the aggrieved party can move an application under Section 30FF(1) of the Act, as amended by Act No. 9 of 1987, to the Divisional Canal Officer for its restoration. If the Divisional Canal Officer, after enquiry and hearing the persons who have allegedly demolished the watercourse, finds that the temporary watercourse has been demolished, he can order its restoration. This is what precisely has been done in the instant case. No fault can be found with the action taken by he Canal authorities.

The reasons stated above, the petition is dismissed in limine.