Narinder Singh vs Jarnail Singh

V.K. Jhanji, J.—Plaintiffs (respondents herein) filed suit for permanent injunction for restraining defendants (petitioner herein) from digging watercourse in his land. It was claimed by the plaintiff in the suit that no watercourse existed at the site and the defendants are threatening to dig out the watercourse forcibly and they be restrained from doing so. In the written statement, it was claimed by the defendants that the watercourse was in existence for the last so many years. It was also claimed that the defendants are not going to use the watercourse forcibly. Rather, defendants had approached the Authorities under the Haryana Canal and Drainage Act, 1974 for restoration of the watercourse.

Trial Court, initially granted adinterim injunction but vacated the same on 6th May, 1992 on the basis of the order passed by SubDivisional Canal Officer under section 24 of the Act. This order was passed on the application of the defendants. In his order, the SubDivisional Canal Officer, Tohana, found that the watercourse was dismantled which was running at the site for the irrigation of the land of the defendants. He ordered restoration of the watercourse for one year in the interest of irrigation under section 24 of the Act. This order was challenged by the plaintiff in appeal before the Appellate Court who vide impugned order, set aside the order of the Trial Court and granted injunction in favour of the plaintiffs restraining defendants from getting watercourse restored. This order has been challenged in this Court here in this Civil Revision.

After hearing the learned counsel for the parties, I am of the view that the impugned order cannot be sustained and the civil revision deserves to succeed.

The Appellate Court while setting aside the order of the trial Court relied upon the judgment in Amar Singh v. State of Haryana, 1986, PLJ 507 in which it was held that the SubDivisional Canal Officer can order restoration of dismantled watercourse only if the watercourse is (i) sanctioned under the Act; (ii) in existence under agreement, or (iii) by prescription. Watercourse which does not fall within any of the three types, cannot be, given benefit of section 24 of the Act. I have carefully gone through the said judgment and find that the same does not apply to the facts of the present case. Section 24 of the Act not only deals with watercourse falling under the three categories mentioned in the said judgment but also deals with temporary watercourse. Subsection (2) of the section 24 of the Act provides that if a temporary water course is dismantled, then the same can be restored to its original place for a period not exceeding one year. In this case, the SubDivisional Canal Officer ordered restoration of the watercourse only for a period of one year meaning thereby that it was a temporary watercourse and for that reason it was restored only for a period of one year.

Learned counsel for the respondents also contended that no finding was given by the SubDivisional Officer that it was a temporary watercourse. According to him, temporary watercourse as defined under section 2(12) of the Act would be the one which was in existence for not less than six months prior to the date of its demolition, enlargement and obstruction. I find no force in this contention as well. Respondents were at liberty to raise, all these points before the SubDivisional Canal Officer After the orders having been passed, they cannot be allowed to contend that it was not a temporary water course as defined under the Act. They having failed to raise this plea before the Sub Divisional Canal Officer, cannot be allowed to contend that the order is without jurisdiction and that too after the orders have been passed by the SubDivisional Canal Officer. It has not been disputed before me that the SubDivisional Canal Officer was competent to pass such an order under section 24 of the Act and, therefore, I find that the Additional District Judge, Hissar, acted illegally in exercising its jurisdiction in upsetting the order of the trial Court who refused to grant injunction in favour of the plaintiffs.

Resultantly, this civil revision is allowed and the impugned order is set aside with no order as to costs. In consequence thereof, the injunction granted in favour of the plaintiffs shall stand vacated.