BHALWINDER SINGH Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) Bhalwinder Singh and Jaswant Singh have filed this petition under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari quashing the orders dated 23.9.1998 and 22.10.1999. Annexure P6 and P8 respectively, by which respondents 1 and 2 had sanctioned the restoration khal 'AB'.

(2.) The petitioners are owners in possession of khasra No. 164/18/1(1-9). 164/182(0-18) measuring 13 kanals 1 marla. Respondent No. 3 owns 29 kanals 1 marla of land, which is being irrigated by him with a tubewell as there is a bore in the land. At point 'B' in the site plan Annexure P1, respondent No. 3 is alleged to have constructed a kotha, in which there are three rooms which is being used as residence of 'Mali' and for keeping other articles. The land situated in khasra No. 18/2, 19 and 22/2 was allotted to the petitioners during the partition proceedings while adjoining land comprised in khasra No. 18/1 measuring 1 kanal 9 marlas was allotted to Saran Singh son of Majitha Singh, which too was sold to the petitioners on 23.6.1997. According to the petitioners, respondent No. 3 had moved a application before the Divisional Canal Officer (in short "the D.C.O.") on 6.2.1998 for restoration of a water course between point A and B. The application was forwarded to the Sub- Divisional Canal Officer, Jhunir (in short "the S.D.C.O."), who had, in turn, sought a report from the Ziledar, Sardulgarh. The Ziledar marked the application to the Canal Patwar for his report in this report, it was mentioned that Sarwan Singh owner of khasra No. 18/1 had no objection to the restoration of the water course and, therefore, it is recommended that the water course should be restored. On coming to know of the connivance between Sarwan Singh and respondent No. 3, the petitioner had approached the Canal authorities and apprised them of the true facts, which included an assertion that there was no water course at the spot. The application of the petitioner was again marked by the S.D.C.O., Jhunir to the Ziledar, Sardulgarh, who submitted a report on the basis whereof the S.D.C.O. after visiting the spot had recommended that there was no water course at point A.B. and recommended that water course may be provided to respondent No. 3 for better irrigation of the land from one side of the land of the petitioners. The D.C.O. without taking into consideration the report submitted by the Ziledar and S.D.C.O. had ordered the restoration of a water cause at point AB which order was upheld by the Superintending Canal Officer respondent No. 1 and aggrieved by both these orders, the petitioner has filed this petition.

(3.) In the written statement filed on behalf of respondents 1 and 2, the D.C.O. Mansa Division took a preliminary objection regarding the petitioners having suppressed the material facts from the Court inasmuch as it was mentioned that they are owners in possession of 13 kanals 1 marla of land comprised in rectangle No. 164/18/1(1-9), 164-1/2 2 (0-18) whereas actually they are owners of rectangle No. 164/18/1/1 (1-9). The dispute actually relates to rectangle No. 164/22/2, which had not fallen to the share of the petitioners. In the written statement respondent No. 1 & 2, go on to submit that while the petitioners are owners of 1 kanal 9 marlas of land, respondent No. 3 is owner of land measuring 29 kanals 1 marla and he has a tubewell in rectangle No. 164/23 and not in Killa No. 164//22/2. Respondents 1 and 2 further admitted that an application had been moved before the D.C.O. on 6.2.1998, who had found that a water course was running in rectangle No. 164//22/2 in the northern side. They further go on to submit that according to the record of the department in the sanctioned warabandi, there is a Nakka at point 'A' khata No. 18 rectangle No. 164//122/1/22/2, (Nakka handed over). 164//20-22, (Nakka taken over), which was passed by the order of the Deputy Collector, Mansa Division, I.B. Jawaharke on 17.5.1994. It was further submitted that the Ziledar had conducted investigation on 24.2.1998 and at that time the owner of rectangle No. 164//22/2 Sarwan Singh son of Majitha Singh had accepted in his statement that the water course at point AB is running in his rectangle No. 164//22 in the northern side. It is further asserted that the water course had been running for about 35/36 years ago, the report regarding which fact was available on the official file of the department. It was also submitted that the share holders of outlet RD 30930/R Rorki minor have also accepted in their statements made before the Ziledar that the said water course at point AB was submitted that this water course had been demolished by Bhalwinder Singh petitioner No. 1 forcibly. The fact of the marks of the water course having been demolished was mentioned in the report submitted by the S.D.C.O. to the D.C.O. after inspecting the spot on 28.7.1998. In these circumstances, the official respondents submitted that the order directing restoration of the water course AB was as per the provisions of Section 30 (?) of the Northern Indian Canal and Drainage Act, 1873 (in short 'the 1873 Act') and there was no need to publish a draft scheme under Section 30-A and 30-B of the 1873 Act.