Gugan and another vs Sultan Singh and another

Gokal Chand Mital, J.—Sultan Singh filed an application before the Sub Divisional Canal Officer u/s 24(1) of the Haryana Canal and Drainage Act 1974 (hereinafter referred to as the Act) for restoration of a watercourse which was running through the land of Gugan and Rati Ram on the ground that they demolished the same. That application was allowed by the officer concerned by order dated 21st October, 1980 inspite of the objection of the two land owners that there was no watercourse in existence which could be got restored in law. The two aggrieved per-sons went up in appeal before the Divisional Canal officer u/s 24(4) of the Act. The Divisional Canal Officer dismissed the appeal by order dated 28th November, 1980 but at the same time observed in his order that Sultan Singh should apply for the sanction of the watercourse immediately. Thereafter, Gugan and Rati Ram filed a civil suit for permanent injunction and along with the said suit filed an application under Order 39, Rule 1 of the CPC for the issue of temporary injunction restraining Sultan Singh and the Sub-Divisional Canal Officer from restoring the watercourse as no watercourse existed at the spot or in any case there was no such watercourse which was capable of restoration u/s 24 of the Act. The application was opposed by Sultan Singh and after considering the matter the trial Court by order dated 30th January, 1981 concluded that neither the orders of the Canal Authorities nor the averments of Sultan Singh show it there was any legal watercourse in existence which could be got restored u/s 24 of the Act, or therefore, the orders of the Canal Authorities were without jurisdiction and consequently granted temporary injunction to the plaintiff. Sultan Singh felt aggrieved and went up in appeal and the learned Additional District Judge reversed the decision of the trial Court and by order dated 4th May, 1981 declined the relief of temporary injunction. This is plaintiffs'' revision petition from the aforesaid order.

After hearing the Learned Counsel for the parties, 1 am of the view that this revision petition deserves to succeed. Before the Act come into force, the matter of restoration of watercourse was covered by the provision of section 30-FF of the Northern India Canal and Drainage Act, 1873, as amended from time to time Section 3C-FF(1) of the said Act is as follows :--

30-F (1) If a person demolishes, alters, enlarges or obstructs a watercourse or causes any damage thereto, any person affected thereby may apply to the Divisional Canal Officer for directing the restoration of the watercourse to its original condition

Section 3(2) of the said Act defines watercourse as follows:--

3(2). ''Watercourse'' means any channel which is supplied with water from a canal, but which is not maintained at the cost of the State Government, and all subsidiary works belonging to any such channel.

Two learned Single Judges of this Court had taken the view that watercourse meant any watercourse whether legal or illegal and all watercourses could be got restored u/s 30-FF, the moment it was found that they were demolished. This matter was doubted and a D vision Bench of this Court finally took the view in Jagar Singh v. Superintending Canal Officer, Hissar Bhakra Canal Circle, Hissar (1972) 74 P.L.R. 315, that the watercourse meant a legal watercourse which could be enforced in a Court of law and it did not include a watercourse which had no lawful existence. The relevant observations of the Divisional Bench are as follows :-

It is in the wake of these statutory provisions that the question has to be examined, namely, whether the provisions of section 30-FF embrace an unauthorised watercourse ? So far as the Act is concerned, it deals with both authorised and unauthorised watercourse. We are using the expression ''authorised watercourse'' to mean a watercourse made available under the provisions of the Act all others being unauthorised. But there is a world of difference between a watercourse which is being used as a matter of right either under some statute, or by agreement or by prescription. But it cannot include a watercourse which has no lawful existence. It may even include a watercourse which passes on another person''s lands but the other person does not object to its being used as a watercourse, but in our opinion a watercourse which has been used on another man''s land without his permission will not fall within the ambit of the Act. If the decision of Koshal J. conveys that the Act only deals with watercourse which are authorised by it or which are unauthorised by the Act but otherwise authorised, as set out above, no exception can be taken to it. But if the decision goes further and embraces watercourses of a type to which I have already made a reference, namely, a watercourse on another man''s land without his permission surely the decision cannot be supported. We say so with utmost respect to the learned Judge. No law contemplates the continuance of an illegal act or gives validity to an illegal act because it has been repeatedly performed. The view we have taken of the matter finds support from the decision of the Lahore High Court in Rukman v. Emperor, AIR 1921 Lah 327. This decision has held the field and reference need only be made to Moola Singh Vs. Surendra Singh and Others, , wherein a large number of decisions taking the same view have been collected. It is true that the Lahore decision dealt with the provisions of section 70, but broadly speaking the ambit of that section and section 30-FF is pari meteria. For instance, section 70(1) talks of alteration, enlargement or obstruction whereas section 20-FF(1) also talks of alteration, enlargement and obstruction Section 70 fell for interpretation as early as 1921 in the Lahore High Court and it was ruled that it only contemplated three types of watercourses, that is,--

(a) sanctioned by law ;

(b) sanctioned by agreement between the parties, and

(c) which have been prescribed by way of easement.

It was also held that if any person takes water through another man''s land, the other man has the right to stop the flow of water through his and thereby committing no offence within the meaning of section 70 It is only when water is stopped in the case of watercourses of the three types already mentioned, that section 70 will come into play. Therefore, a watercourse which does not answer the description of the watercourse set out above would surely fall outside the ambit of section 70 and so also section 30-FF. Section 30-FF has been brought on the statute book long after section 70 was judicially interpreted and we must proceed on the basis that the framers of section 30-FF knew how section 70 had been interpreted and whenever they have used the same language in section 30-FF, that must bear the same interpretation and none other.

After the aforesaid authoritative decision was rendered by this Court, the Act was framed by the Haryana Legislature and the definition of watercourse contained in section 2(15) of the said Act is as follows :--

In this Act, unless there is anything repugnent in the subject or context,--

x x x x x x

(15) ''watercourse'' means any channel including all its subsidiary works which is supplied with water from a canal, but not maintained at the cost of the Stale Government, and is sanctioned under this Act or is in existence under an agreement or by prescription.

The provision for restoration of the watercourse is contained in section 24(1) of the Act, which is as follows :--

(1) If a person demolishes, alters, enlarges or obstructs a water course or a temporary watercourse or causes any damage thereto, any person affected thereby may apply to the Sub-Divisional Canal Officer for directing the restoration of the same to its original condition.

A reading of the definition of the watercourse contained in the Act shows that the legislature accepted the verdict of the Division Bench and specifically stated watercourse to mean either the sanctioned one under the Act, or to be in existence under an agreement of the parties, or by prescription. The case of Sultan Singh about the existence of the watercourse is based on none of these three matters and that is what (he trial Court kept in view while deciding the matter of grant of temporary injunction The lower Appellate Court called Ziledar Jhajjar as a Court witness and from his statement it came to the conclusion that the watercourse was in existence at the site before it was demolished but that by itself would be no ground to hold the orders of restoration to be legal and within jurisdiction Unless it was further found that watercourse was sanctioned under the Act or was to be kept on running under some agreement of the parties or by prescription. The Division Beach had also considered that suppose a landowner allows his neighbour to lake water through his land, then can such an owner not demolish that watercourse at his sweetwill ? The answer was yes. The taking of water without any specific agreement should be merely a licence and the licence can be terminated at will The Ziledar, who appeared before the lower Appellate Court was unable to show that there was any sanctioned watercourse at the place where the restoration was to be made. No claim on the basis of prescription was made by Sultan Singh either before the Canal Authorities or in his defence of the suit or application. The Ziledar in this situation merely stated that the watercourse in question had been running by mutual consent of the parties Since there is no agreement and even if it is assumed that the plaintiffs allowed Sultan Singh to take water from their fields that would not mean any agreement and would only be a licence and the act of demolition of the watercourse by them would a amount to revoking the licence thereby creating no right in Sultan Singh to move the Canal Authorities u/s 24(1) of the Act for restoration thereof. In view of the above, I am constrained to hold that the lower Appellate Court erred in law in coming to the conclusion that the Division Bench judgment was distinguishable on the facts of the present case, which, as found above, is on all fours with the present case.

The lower Appellate Court took notice of another order of the same trial Judge in another suit wherein it had declined temporary injunction after observing that the suit was not competent in view of section 13 of the Act The quotation reproduced in the order of the lower Appellate Court does not show that the case related to the restoration of an unauthorised watercourse. If the watercourse is authorised, than certainly the Canal Authorities will have jurisdiction u/s 24 of the Act and Civil Court will nave no jurisdiction to go into the matter in view of section 23 of the Act, but if an order of restoration of unauthorised watercourse is made, then that order would be clearly without jurisdiction and the civil suit would be competent. Therefore, the order in another suit passed by the same learned Judge is of no assistance whatsoever in deciding the matter in dispute in this case.

For the reasons recorded above, this revision petition is allowed, the order of the lower Appellate Court is set aside and that of the trial Court is restored. However, the parties are left to bear their own costs.