HARBANS SINGH Vs. SUPERINTENDENT CANAL OFFICER

JUDGEMENT

(1.) Briefly the facts of the case are that the petitioner is the owner of land bearing killa Nos. 5/18, 17, 16, 23, 24 and 25, situated in village Theri, Tehsil Muktsar, District Faridkot. It has further been alleged in the petition that the petitioner was irrigating his fields through khal from RD 3,23,000 Outlet of Sirhind Feeder, for the last more than 30 years. According to the petitioner, all of a sudden, Respondent No. 3, i.e. Gurdas Singh dismantled a portion of 21 karams of Khal leading to the fields of the petitioner. The fields of Respondent No. 3 and the petitioner are adjacent.

(2.) Aggrieved by the alleged action of Respondent No. 3 of dismantling the Khal, the petitioner moved a petition under Section 30-FF of the Northern India Canal & Drainage Act, 1873 (hereinafter referred to as the Act) before the Divisional Canal Officer, Abohar, for the restoration of the Khal. On the basis of the report of the Zilledar to the effect that the Khal at the post was running since 1973 and there was no source of irrigation for the fields of the petitioner, the demolished Khal was ordered to be restored by the Divisional Canal Officer in the interest of irrigation, on 9th May, 1991 (Annexures P-2). However, the said order was reversed by the Superintending Canal Officer on appeal filed by Respondent No. 3, Gurdas Singh, vide order dated 29th August, 1991 (Annexures P-4). The Superintending Canal Officer observed that the present petitioner Harbans Singh had stated that the water course had been left during consolidation which has been demolished by Respondent No. 3. He observed that no proof was available on the record that the watercourse was left during the consolidation operation. Further, it was also observed that the present petitioner could not establish that he had been using the water course to irrigate his lands. The report of the Zilledar/Sub- Divisional Canal Officer was held to be arbitrary and presumptive. Since the petitioner had failed to prove that the water course was in existence, the question of restoring the Khal, according to the Superintending Canal Officer, did not arise. Aggrieved by the said order, the petitioner filed the present writ petition.

(3.) The learned counsel for the petitioner submitted that there was a report of Zilledar that the watercourse was in existence since 1973, and therefore, the Superintending Canal Officer was not right in law in upsetting the order of the Divisional Canal Officer.