KUNDAN LAL Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) Kundan Lal petitioner, resident of village Jhumbha, Tehsil and District Bhatinda (now residing at village Giderbaha, District Ferozepore) has alleged in this writ petition that, as a result of consolidation in village Jhumbha during the year 1962-63, a new minor known as Peori minor was provided for the purpose of irrigating the land of the petitioner and that of the other landholders and on that minor, outlet RD No. 2500-R was provided for the aforesaid purposes; that the petitioner, for over three years, as a result of the consolidation in the village, continued to irrigate his land through the water-course 'AB', which branched off from the main Khal at point 'A' and passing through the field of respondent No. 3 ended at point 'B' in Kila No. 18 of rectangle No. 38 of the petitioner, as shown in plan, which is attached to the writ petition as annexure 'A', that respondent No. 3, who is an ex-Honorary Magistrate and a Jagirdar and who commands great influence in the Ilaqa, dismantled in the first week of July, 1966 the aforesaid water-course 'AB' which passed through his field comprising Killa Nos. 11/1, 12 and a portion of Killa No. 19 of rectangle No. 38; that the petitioner applied on 6.7.1966 for the restoration of the aforesaid dismantled water-course in question under Section 30-FF of the Northern India Canal and Drainage Act (No. VIII of 1873), hereinafter called the Act; that the Divisional Canal Officer, after due enquiry, ordered in September 1966 the restoration of the aforesaid water-course 'AB' through police help; that on, coming to know about the aforesaid order respondent No. 3 approached the Divisional Canal Officer and got the stay of the implementation of the order of restoration; that the Divisional Canal Officer provided the petitioner with a temporary water-course through the village-path parrallel to the dismantled water-course 'AB' as a stop-gap arrangement till the finalisation of the dispute between the parties; that the petitioner had been irrigating his fields from the aforesaid provisional water-course from 27.4.1967 till the date of the filing of the writ petition; that respondent No. 2 instead of implementing his order regarding restoration of the dismantled water-course, proceeded to act under the provisions of sections 30-A and 30-B of the Act with a view to provide the petitioner with another watercourse; that the petitioner objected to the following of such a course of action by the Divisional Canal Officer, but he, vide his order, dated 17.4.1970 (copy annexure 'C' to the writ petition), sanctioned a new water-course shown as 'AMOQY' in the plan attached to the writ petition as annexure 'A'; and that an appeal against the Divisional Canal Officer's order, dated 17.4.1970, at the instance of the petitioner to the Superintending Canal Officer was dismissed, vide his order, dated 18.9.1970 (copy Annexure 'D' to the writ petition). It is these two orders, annexures 'C' and 'D' to the writ petition, which have been impugned by the petitioner through the present writ petition, inter alia, on the ground that the procedure provided under Section 30-A of the Act has not been complied with, as no valid scheme was got prepared in accordance with the aforesaid provisions of the Act; that the new water-course 'AMOQY' provided by the Divisional Canal Officer is not a suitable water-course to irrigate the fields of the petitioner; that the suitability of the new outlet is doubtful is clear from the fact that the Superintending Canal Officer made a verbal order to the Divisional Canal Officer to have the suitability of the water-course checked on 21-9-1970 in the presence of the petitioner; and that the Divisional Canal Officer is duty bound to restore, the dismantled temporary water-course and the question of framing a scheme for giving an alternative water-course does not arise.

(2.) The Divisional Canal Officer, on his own behalf as also on behalf of respondent No. 1, has placed an affidavit in reply to the allegations contained in the writ petition, wherein he has admitted that as a result of the consolidation operations, in place of the old minor, a new minor Peori was provided to irrigate the fields of the petitioner and the other right-holders from outlet No. RD. 2500-R thereon; that the petitioner irrigated his fields from the water-course 'AB'; and that as to whether the said water-course 'AB' passed through the fields of respondent No. 3 or through the village-path, he has expressed his ignorance. It has also been admitted that the petitioner applied for the restoration of the dismantled water-course on 6.7.1966 and orders were issued for the restoration of the same through police help, but he has further stated that the petitioner agreed to get his fields irrigated through the parallel water-course provided through the village path till the final decision about the water-course was taken. He denied that respondent No. 3 approached him to stay the implementation of the order of restoration of the dismantled water-course. He has further denied that the scheme was not framed in accordance with the provisions of sections 30-A and 30-B of the Act. It has been stated that, in fact, the scheme was prepared in accordance with law and the rules. It has been further denied that the answering respondent acted under the influence and on the behest of respondent No. 3 in providing the new outlet to the petitioner. The answering respondent has, however, not made any reply to the allegation that the Superintending Canal Officer made a verbal order regarding the checking of the suitability of the new water-course on 16.9.1970.

(3.) Respondent No. 3 has also placed on the record an affidavit in reply to the writ petition, wherein he has denied the allegation that water-course 'AB' passed through his fields or that he influenced the Divisional Canal Officer in providing the new water-course to the petitioner by getting the implementation of the order of restoration of the dismantled Khal stayed. He has asserted that the water-course 'AB' passed through the village path and since the Panchayat objected to the existence of the same, so he got the same dismantled, as he was also one of the right-holders who used to irrigate his fields through the said water-course.