Kartar Singh vs State of Punjab and others

M.M. Punchhi, J. (Oral)

This is a petition under Articles 226 and 227 of the Constitution of India.

The facts giving rise thereto are these :

The petitioner Kartar Singh, and respondents Nos. 4 and 5, Balbir Singh and Ranjit Singh, respectively, are contiguous landowners in village Nathuwala Charbi, Tehsil Moga, District Ferozepur. Their lands were being irrigated by Rajbaha Dhulkot through an outlet. Plan showing the range of the watercourse sanctioned in support of the petition is Annexure ''A''. The watercourse after emanating from the outlet came to point ''A'' in the land of the petitioner and then would go south ward at distance of 2 Killas length at point ''E''. Here from, it would turn east ward covering 5 Killas distance to point ''F''. This point ''F'' can be called the focal point and in situated in the land of Ranjit Singh, respondent No. 5. From point ''F'' the water used to go in different directions towards points ''C'', ''D'', ''G'' and ''H'', irrigating the lands of respondents Nos. 4 and 5. Respondent No. 4 made an application to the Divisional Canal Officer under section 30B of the Northern India Canal and Drainage Amendment Act No. 23 of 1965 (hereinafter referred to as the Act) requesting sanction of a new watercourse from point ''A'' to ''C'' through point ''B'' in preference to the watercourse "A.E.F.''''. His prayer was allowed vide order Annexure "B''''. Dissatisfied as his land stood bifercated, the petitioner moved the Superintending Canal Officer in revision and the same was dismissed by him on 13th November, 1968, vide order Annexure ''C'' permitting respondent Nos. 4 and 5 to obtain the ownership of the land under the proposed watercourse "ABC'''' on payment of costs which were to be assessed in due course.

The sanction of the disputed watercourse gave cause to the petitioner to move this Court. Her complains that the entire land of Ranjit Singh, respondent No. 5, was fully being irrigated by the old watercourse and even the land of Balbir Singh, respondent No. 4, except for a negligible percentage in Killas Nos. 4, 5 and 6 in Rectangle No. 121, as shown in the plan, was receiving irrigation as was clear from the Khasra Girdawaris. According to the petitioner, the action has been taken by the official respondents due to the influence of Avtar Singh, S.D.O. Canals, who happens to be the leader brother of Balbir Singh, respondent No.4.

The respondents in their returns have denied the allegations and have maintained that the provision of the new watercourse is in the interest of the irrigation and the impugned orders have been passed in proper exercise of discretion.

This petition came up for motion hearing on 3rd February, 1969, and on its admission digging of the new Khal was ordered to be stayed. Concededly, it has remained undone for all these years. It can safely be assumed that the old arrangement of the watercourse remained in vogue.

It is true that this Court does not, in the exercise of its powers under Article 226 of the Constitution, substitute its own views on merits of the case in a matter which is within the sole discretion of authorities named under the Act. This is the main plank of the respondents on which they bank upon. But on the other hand it cannot be disputed that the Legislature, in its wisdom, conferred on the canal authorities the power to decide matters within their domain not only legally and correctly to the best of their judgment but with the confidence that the power would be exercised fairly and justly. And once that confidence appears to be abused under the colourable exercise of powers conferred under the statute, this Court is there to correct the authority by bringing its decision in conformity with law, justice and fairness.

Now here the parties are agreed that water has to reach the focal point ''F'' whether it travels through the new watercourse or through the old water course. It is patent from the plan Annexure ''A'' that points ''A'', ''C'', ''E'' and ''F'', are corners of a rectangle having 2 Killas'' distance width and 5 Killas'' distance length. The water has to come at the focal point ''F'' situated in the land on respondent No. 5 and from there to the holdings of respondent No. 4, who applied for the change. It stands to no reason as to how respondent No. 4 would gain from the course of the Khal upstream of focal point ''F''. The irrigation to his land would only depend on the position and level of the focal point ''F'' and not on the suggested circumstance the alignment ''B'' to ''C'' was at a higher level that the alignment ''E'' to ''F''. That being so, there is more than what the eye can reach. The claim of respondent No. 4 that it would improve his irrigation and of respondent No. 5 in sheepishly supporting him, on that score is for reasons other than arising from justness and fair play. The ostensible reasons put forward by the official respondents that the change was effected to promote the irrigation beats hollow when the land of respondent No. 5 received undisputably total irrigation facilities even through the old watercourse and the position would not improve for respondent No. 4 as his irrigation depended and would remain dependent on the level and position at focal point ''F''. The impugned orders appear to have been passed for considerations other than to promote irrigation and thus in arbitrary exercise of the powers conferred. The impugned orders cannot sustain in this view.

For the foregoing reasons, this petition is allowed and the impugned orders, Annexures ''B'' and ''C'', are set aside, but without any order as to costs.