BRIJ LAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The Divisional Canal Officer on the application of share holders of Khal CD running on the eastern border of Killa No. 62/22/2, 77/2 issued notice to the in petitioner exercise of power under section 30-FF of Northern India Canal & Drainage Act, 1973 (hereinafter referred to as the Act) to restore the said Khal within the specified period. The petitioner challenged that notice in appeal before the Superintending Canal Officer. Superintending Canal Officer vide order dated 19th October, 1983 dismissed the appeal. The petitioner has challenged notice Annexure 'A' and the order passed in appeal Annexure 'B' to the petition on the ground that the Khal which was ordered to be restored was neither the sanctioned Khal nor therein respondent No. 4 had acquired any right to irrigate his fields either as a result of easement or by agreement, therefore, the provisions of Section 30-FF were not attracted to the same and conferred no power on the canal authorities to restore the watercourse in question.

(2.) The perusal of the order of the Superintending Canal Officer would show that only point raised before him in appeal was that no such water course which was being alleged to have been demolished was in existence; that the respondent shareholders in question had another water course which was in existence and from which they used to take water to their fields. The Superintending Canal Officer in this order has held that the demolished water course was in existence and that there was no other water course in existence for irrigating the fields of respondent-share holders. Since the point raised in the petition was never raised before the Superintending Canal Officer in appeal, so it cannot be said that the order of the Divisional Canal Officer was bad on the score that water course in question was not of the kind to which the provisions of Section 30-FF of the Act could be attracted. What is more in the written statement filed on behalf of respondents Nos. 1 to 3, it has been clearly mentioned that on the water course warabindi has been sanctioned in favour of the aggrieved share-holders under Section 68(4) of the Act to which no objection had been taken by the petitioner at any stage. In view of the above fact either by implication the water-course would be taken as a sanctioned water course or in any case it would be taken that the petitioner had agreed to the use of the said water-course by the respondent- shareholders and that is why no objection had been raised when the department sanctioned warabandi on the said water course giving right to the respondent shareholders to take water through that water course to their fields.

(3.) Mr. Gurbinder Singh Dhillon, counsel appearing for the petitioner lastly urged that Divisional Canal Officer issued notice without making enquiry in terms of Sub-section (2) of Section 30-FF of that Act and supported his submission by placing reliance on a judgment of this Court in Kheta Ram v. The State of Haryana, 1974 PunLJ 294 Sub-section (2) of Section 30-FF of the Act is in the following terms :-