BACHITTAR SINGH Vs. DIVISIONAL CANAL OFFICER

JUDGEMENT

(1.) The appellant prays that order dated 26.03.2012, dismissing his writ petition and orders passed by the Canal authorities, restoring the water course may be set aside and the water course "ABC" may be restored as per alignment sanctioned by the Divisional Canal Officer, Sirsa, on 28.06.1977.

(2.) Counsel for the appellant submits that respondent no.3 addressed a letter to canal authorities, levelling allegations against the appellant. The letter has been treated as an application for restoration of the water course. A perusal of the letter, Annexure PL. 4, reveals that respondent no.4 has not made a prayer for restoration of the water course. The order passed, under Section 24 of the Haryana Canal and Drainage Act, 1974 (hereinafter referred to as 'the 1974 Act'), restoring the water course is, therefore, illegal and void. It is further submitted that an application for restoration of a demolished water course is maintainable for restoration of a sanctioned water course or if a water course, is in existence by agreement or by prescription. The water course, in dispute, was neither sanctioned nor was it in existence under an agreement or by prescription. The water course was sanctioned at points "ACB", vide order dated 26.08.1977 but has been ordered to be restored at point "AB", thereby bifurcating the appellant's land. It is also argued that the finding that the water course "AB" was lined by canal authorities is contrary to the record. The impugned orders, directing restoration of the water course, at point "AB" and the order dismissing the writ petition may, therefore, be set aside.

(3.) Counsel for respondent no.3 submits that the Sub Divisional Canal Officer and the Divisional Canal Officer have recorded concurrent findings of fact, duly affirmed, by dismissal of the writ petition, that an existing lined water course "AB" was demolished by the appellant. The findings have been recorded after referring to the record and after inspection of the site. The argument that the water course existed at "ACB" and not at "AB" as canvassed by counsel for the appellant, is contrary to the record. It is further submitted that, though, respondent no.3 might not have filed a formal application for restoration of the water course, but his complaint made to the Executive Engineer, Irrigation Department, Nehrana Division, Sirsa, on 11.05.2011 (Annexure R-3/3) clearly complains of demolition of the water course with a prayer that the water course may be restored. A mere irregularity in filing the application is not sufficient to accept the appeal or set aside orders, which record a clear finding of fact that the appellant has demolished an existing water course.