JOGINDER SINGH Vs. BANTA SINGH

JUDGEMENT

(1.) Petitioners are owners in possession of area comprised in killa No. 25 of Rect. No. 120 and Killa No. 5 of Rect. No. 164 in village Damdama Tehsil Rania District Sirsa as shown in brown colour in the site plan Annexure P1 with the writ petition. Respondents Nos. 1 to 3 are owners of area in Killa No. 24 of Rect. No. 120 and Killa No. 4 of Rect. No. 164 as shown in green colour in the site plan. It is alleged by the petitioners that their area and that of the private respondents had been receiving irrigation from the watercourse which is shown as ABC in the site plan for the last more than 32 years. It is further alleged that the land of the petitioners was receiving irrigation from the branch watercourse BD which too had been running at site for the last more than thirty years. According to the petitioners, the private respondents dismantled the watercourse BD on 8-12-1994 cutting off the supply of water to the holding of the petitioners. Petitioners moved an application on 9-12-1994 before the Sub Divisional Canal Officer under Section 24(1) of the Haryana Canal and Drainage Act, 1974 (for short the Act) for restoration of the demolished watercourse. The application was marked to the Ziledar for inquiry. He inspected the site of the watercourse on 13-12-1994 and after recording the statements of the share holders found that the watercourse BD had been dismantled. He, therefore, found the request for restoration genuine and accordingly made a recommendation to the concerned officer for its restoration. A copy of this report which is on the record of the authorities below is Annexure P3 with the writ petition. Petitioners also placed on record relevant extracts from the khasra girdawris from Kharif 1982 to Rabi 1987 showing that a gair-mumkin watercourse was running over 9 marlas of the land in Rect. No. 120 Killa No. 24. Extracts from the Khasra girdawris from Kharif 1987 to Rabi 1992 and Kharif 1992 to Kharif 1994 were also placed on record in support of the plea that a watercourse was running as alleged by the petitioners. A copy of the extract from the jamabandi for the year 1991-92 has also been placed on the record to show that there was a gair mumkin khal as claimed by the petitioners. The private respondents instituted a suit in the Court of Sub-Judge, Sirsa seeking to restrain the petitioners from digging a watercourse in their land and in that suit a Local Commissioner was appointed to inspect the site and to report whether the watercourse BD existed at the site as claimed by the petitioners who were defendants in the suit. One Dayal Singh, Advocate was appointed the Local Commissioner and he submitted his report dated 3-1-1995 observing that the watercourse had been dismantled and that the same was in existence in the past. A copy of this report was also placed before the Sub-Divisional Canal Officer in support of the application for restoration filed by the petitioners. This application was taken up for consideration by the Sub-Divisional Canal Officer on 5-1-1995 after he had inspected the site on 31-12-1994. Without referrring to the documentary evidence produced by the petitioners the Sub-Divisional Canal Officer came to the conclusion that there was no watercourse existing as alleged by the petitioners and the question of its being demolished did not arise. He accordingly dismissed the application. Feeling aggrieved by this order, the petitioners filed an appeal before the Divisional Canal Officer, Sirsa. The Appellate Authority noticed the documentary evidence which was produced by the petitioners in support of their plea but without discussing the same dismissed the appeal on 4-5-1995 with the following observation:-

(2.) Petitioners then filed civil writ petition 9145 of 1995 in this Court challenging the orders of the Sub-Divisional Canal Officer as also of the Divisional Canal Officer. The writ petition was allowed on 28-8-1996 and after quashing the orders impugned therein and remanding the case to the Sub-Divisional Canal Officer, this Court made the following observations:-

(3.) After remand the Sub-Divisional Canal Officer again took up for consideration the application filed by the petitioners for restoration of the demolished watercourse. He relied on the statements of the respondents to hold that no watercourse existed as alleged by the petitioners and without referring to the documents produced before him again dismissed the application holding that Section 24(2) of the Act did not permit the restoration of the watercourse. This officer did not record any positive finding that the watercourse did not exist though it was observed in passing that warabandi record showed that the turn of Joginder Singh petitioner was without watercourse and, therefore, the watercourse could not be restored. Petitioners again filed an appeal before the Divisional Canal Officer, Sirsa who by his detailed order dated 30-5-1997 dismissed the same. He referred to some of the documents produced by the parties and observed that they were confusing and over lapping and also observed that the lands of the petitioners and the respondents lay in the tubewell belt where number of private tubewells had been installed for irrigation and, therefore, there was not much of a demand for canal water. It is against this order of the Divisional Canal Officer upholding that of the Sub-Divisional Canal Officer that the present petition has been filed under Art. 226 of the Constitution for the issusance of a writ of certifiorari for quashing these orders.