KARNAIL SINGH Vs. SUPERINTENDING CANAL OFFICER AND ORS.

JUDGEMENT

(1.) Instant writ petition has been filed under Articles 226/227 of the Constitution of India for setting aside the order dated 29.08.2012 (Annexure P-7) passed by respondent no.2-Divisional Canal Officer whereby watercourse 'AB' in the middle of land of petitioner has been ordered to be restored and the order dated 19.11.2012 (Annexure P-9) passed by respondent no.1-Superintending Canal Officer whereby appeal filed by the petitioner has been dismissed.

(2.) Brief facts of the case are to the effect that the petitioner and his family members are owners of a piece of land as shown in green colour and respondent no.3 is owner of three different parcels of land as shown in yellow colour in site plan (Annexure P-1). Pucca watercourse is in existence at the spot upto point 'D' and respondent no.3 was irrigating his land through underground pipes from points 'D' to 'C'. The land of petitioner is being irrigated through a kacha watercourse shown in blue line and watercourse is in existence upto point 'A'. Respondent no.3 got consolidated his turn of water at one place i.e. khata no.47 and his naka taking is at point 35//17/1-2 as denoted in the site plan at point 'X' and naka giving is at point 57//16-25, 58//20-21, as denoted in the site plan at point 'Y' and the same is duly reflected in Warabandi (arrangement of turn of water) (Annexure P-2) prepared in the year 1997 which has been subsequently amended on 08.07.2011 under Section 68 (3) of the Northern India Canal and Drainage Act, 1873 (in short 'the 1873 Act'). It is further averred that in the year 1988, some portion of land was sold by the petitioner to respondent no.3 vide registered sale deed dated 28.12.1988, however, respondent no.3 has encroached upon some more portion of land. The demarcation at the spot was carried out on 14.05.2012 vide demarcation report Annexure P-3 and land of petitioner was got completed. Thereafter, respondent no.3 moved application to the Divisional Canal Officer stating that watercourse 'AB' was running through the land of petitioner which has been demolished by the petitioner. The application was referred to the Sub Divisional Officer for enquiry and thereafter it was sent to Ziledar, who after inspection at the spot, recorded the statements of shareholders and made a report that at the spot, turn of water of respondent no.3 is in khata no.47, naka taking is at 35//17/1-2 and naka giving is at 57//16-25, 58//20-21. It was also reported that neither there is any watercourse in existence at rect. no.56//15 nor any naka has been shown in the warabandi. The report of Ziledar is dated 11.06.2012 (Annexre P-4).

(3.) Thereafter, the Sub Divisional Officer examined the report and agreed with it and submitted that no watercourse has been demolished and did not recommend for restoration of watercourse. It is also averred that respondent no.3 is a politically connected person and he approached the Divisional Canal Officer, who directed Sub Divisional Officer to reexamine the matter and submit a fresh report. Accordingly, the Sub Divisional Officer submitted the report dated 02.08.2012 taking a UTurn that watercourse leading to the area of respondent no.3 has been demolished and recommended for restoration of the watercourse 'AB' under Section 30 FF of the 1873 Act. Thereafter, vide impugned order dated 29.08.2012 (Annexure P-7), respondent no.2 allowed the application of respondent no.3 and ordered restoration of demolished watercourse through rect. no.56//15 which was running directly from point 'A' of kacha watercourse. Against that, the petitioner preferred an appeal before respondent no.1-Superintending Canal Officer which has been dismissed vide impugned order dated 19.11.2012 (Annexure P-9)). Hence, this writ petition.