GUGAN AND ANOTHER Vs. SULTAN SINGH AND ANOTHER

JUDGEMENT

(1.) SULTAN Singh filed an application before the Sub Divisional Canal Officer under section 24(1) of the Haryana Canal and Drainage Act 1974 (hereinafter referred to as the Act) for restoration of a watercourse which was running through the land of Gugan and Rati Ram on the ground that they demolished the same. That application was allowed by the officer concerned by order dated 21st October, 1980 inspite of the objection of the two land owners that there was no watercourse in existence which could be got restored in law. The two aggrieved per -sons went up in appeal before the Divisional Canal officer under section 24(4) of the Act. The Divisional Canal Officer dismissed the appeal by order dated 28th November, 1980 but at the same time observed in his order that Sultan Singh should apply for the sanction of the watercourse immediately. Thereafter, Gugan and Rati Ram filed a civil suit for permanent injunction and along with the said suit filed an application under Order 39, Rule 1 of the Code of Civil Procedure for the issue of temporary injunction restraining Sultan Singh and the Sub -Divisional Canal Officer from restoring the watercourse as no watercourse existed at the spot or in any case there was no such watercourse which was capable of restoration under section 24 of the Act. The application was opposed by Sultan Singh and after considering the matter the trial Court by order dated 30th January, 1981 concluded that neither the orders of the Canal Authorities nor the averments of Sultan Singh show it there was any legal watercourse in existence which could be got restored under section 24 of the Act, or therefore, the orders of the Canal Authorities were without jurisdiction and consequently granted temporary injunction to the plaintiff. Sultan Singh felt aggrieved and went up in appeal and the learned Additional District Judge reversed the decision of the trial Court and by order dated 4th May, 1981 declined the relief of temporary injunction. This is plaintiffs' revision petition from the aforesaid order.

(2.) AFTER hearing the Learned Counsel for the parties, 1 am of the view that this revision petition deserves to succeed. Before the Act come into force, the matter of restoration of watercourse was covered by the provision of section 30 -FF of the Northern India Canal and Drainage Act, 1873, as amended from time to time Section 3C -FF(1) of the said Act is as follows : - -

(3.) TWO learned Single Judges of this Court had taken the view that watercourse meant any watercourse whether legal or illegal and all watercourses could be got restored under section 30 -FF, the moment it was found that they were demolished. This matter was doubted and a D vision Bench of this Court finally took the view in Jagar Singh v. Superintending Canal Officer, Hissar Bhakra Canal Circle, Hissar : (1972) 74 P.L.R. 315, that the watercourse meant a legal watercourse which could be enforced in a Court of law and it did not include a watercourse which had no lawful existence. The relevant observations of the Divisional Bench are as follows : -