DAYA SINGH Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) THE 3rd respondent filed a petition with the grievance that the water channel had been wrongly demolished by the present petitioner. He prayed for its restoration. The Division Canal Officer vide his order dated December 1, 1997 held that "the Opposite Party by demolishing the existing water course has caused loss to the applicant... ... ...because this canal water course appears to be demolished". Resultantly, he passed an order under Section 30-FF(2) of the Northern India Canal and Drainage Act, 1873 that the water course be restored. Aggrieved by the order, a copy of which has been produced as Annexure P1 with the writ petition, the petitioner filed an appeal before the Superintending Canal officer. The appellate authority considered the matter. Its finding may be usefully reproduced. It reads as under :

(2.) TWO separate written statements have been filed on behalf of respondent. In the reply filed on behalf of respondents No. 3 it has been specifically averred that the water course was running for the last more than 30 years. The 3rd respondent has been paying the charges to the authorities. He has produced the reports of the Ziledar as Annexures R3/2 and R3/3. Even the receipts regarding payment for November 23, 1965 to the year 1989 have been produced as Annexures R3/4 to R3/9. On this basis, it is claimed that the action of the respondents in ordering the restoration of the water channel is absolutely legal and deserves to be upheld.

(3.) THE solitary contention raised by Mr. Bedi, learned counsel for the petitioner, is that under Section 30-FF of the Act a water channel can be ordered to be restored only if it is found to have been legally sanctioned. Learned counsel has referred to the decision of a Division Bench of this Court in Jagar Singh v. Superintending Canal Officer and others, 1972 PLJ 147 to contend that only a water course sanctioned by law or sanctioned by agreement or the one prescribed by way of easement can be ordered to be restored. Since the water course in the present case does not fall within any of these three categories the claim made by the 3rd respondent could not have been sustained. The claim made on behalf of the petitioner has been controverted by Mr. Kanwaljit Singh, learned counsel for the 3rd respondent.