Iqbal Singh and Others vs Divisional Canal Officer, Abohar, Canal Circle and Others

Rajive Bhalla, J.—CM No. 1012 of 2013 CM is allowed. A copy of judgment dated 10.1.2013, passed by the Civil Judge (Junior

Division), Malout, is taken on record. Letters Patent Appeal No. 1373 of 2012

The appellants pray that order dated 6.8.2012, dismissing their writ petition in limine as well as order dated 15.3.2012 passed by the

Superintending Engineer, Ferozepur Canal Officer, Ferozepur, may be set aside.

Counsel for the appellants submits that as the Divisional Canal Officer has recorded a finding of fact that the water course was demolished at

points ''A'' ''B'' and ''C'', the Superintending Engineer, Canal Officer, Ferozepur, had no jurisdiction to set aside this order on the ground that

houses have been constructed at the spot and to direct that the matter be decided afresh. The finding is contrary to the record as there are no

houses at the spot and even if some persons may have raised construction, it has to be demolished to restore the water course. It is further

submitted that as the appellants prayed for restoration of the demolished water course, the so called construction is irrelevant. The order passed by

the Superintending Engineer, Canal Officer, and order dismissing the writ petition, therefore, may be set aside.

Counsel for the private respondents submits that as, admittedly, there is construction between points ''ABC'', the Superintending Engineer,

Canal Officer, did not commit any error in directing the Divisional Canal Officer to reconsider the matter. The Superintending Engineer, Canal

Officer, has also pointed out certain errors in sanctioning the water course, which should have been considered by the Divisional Canal Officer. It

is further submitted that the judgment in a civil suit, sought to be placed on record by the appellants, is irrelevant as the Civil Court has clearly held

that the appropriate authority to grant or deny a water course/water channel, is the Irrigation department.

We have heard counsel for the parties and perused the impugned orders.

It is true that in matters relating to restoration of a demolished water course, the water course should be restored at its original place. In the

present case, however, it appears that houses/huts etc. exist in the path of the water course ''ABC''. The Superintending Engineer, Canal Officer,

Ferozepur, has, therefore, rightly set aside order dated 28.7.2011 passed by the Divisional Canal Officer and directed him to obtain a fresh

application from the appellants, re-examine the matter, and, ensure that irrigation to the fields of the appellants does not suffer. A relevant extract

reads as follows:

......After scrutiny and consideration of each and every point involved in this case, the following three points have come to the notice of this Court.

The place, where ABC Watercourse has been approved (restored), according to the position of spot, there is abadi in killa No. 10, 11/1 and

houses have been constructed, due to which watercourse cannot be given here.

Turn of Outlet Burji No. 15710-TF and TR Burja Minor has been fixed u/s 68.

If the turn has been fixed u/s 68, then outlet burji No. 15710-TF and TR, areas of both the outlets, shown at one watercourse point P to A,

which has been shown in the map, turn of one outlet cannot be given from the chak of other outlet, as per rules.

Therefore, accepting the appeal of appellants under Northern India Canal and Drainage Act 8 of 1973 and Punjab Amendment Act 23 of 1965,

Section 30FF(3), the case is remanded back to the Divisional Canal Officer with the direction that fresh application be received from the

respondents and case be prepared, so that no irrigation loss is caused to their area under argument and the Divisional Canal Officer should

personally inspect the spot and make some alternative arrangement with the consent of the respondents and the case be disposed off within three

months. This order was kept reserved, therefore, both the parties be informed about the decision.

As we are satisfied that there are houses/huts etc. in the path of the water course, the order dismissing the writ petition as also the order, passed by

the Superintending Engineer, Canal Officer, do not call for interference but are modified by directing the Divisional Canal Officer, Abohar, to

reconsider the application for restoration of the water course, afresh and determine whether there is any house/hut etc. existing in the path of the

water course ABC. In case any house/hut etc. exist, the appellants may be allowed to take water through underground pipes. If such an

arrangement is not possible, then to suggest an alternative course for the water course so as to ensure that irrigation to the land of the appellants is

not adversely affected. The needful shall be done by the Divisional Canal Officer, Abohar, within two months, from the receipt of a certified copy

of this order.