JASWINDER SINGH Vs. SUPERINTENDING CANAL OFFICER

JUDGEMENT

(1.) Instant writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing of order dated 07.01.2011 (Annexure P/10) passed by respondent No. 1 and order dated 29.06.2010 (Annexure P/8) passed by respondent No. 2 under the provisions of Northern India Canal & Drainage Act, 1873 (hereinafter referred to as the "Act"). Brief facts of the case are that the petitioner and other right holders of outlet No. 89150-L Rajbaha Jaitu made a request to respondent No. 2 that by splitting this outlet, watercourse be provided at outlet No. 3190-R on Kotli minor. Ziledar, Jaitu and Sub Divisional Officer, Dhaipai made a site inspection, conducted enquiry and recommended the splitting of outlet No. 89150. The Divisional Canal Officer - respondent No. 2 after considering the report and comparative command statement submitted by the Junior Engineer, sanctioned the new outlet No. 3190-R Kotli minor for 354/345 acre vide order dated 20.03.2003 (Annexure P/1). Thereafter, Balwinder Singh and others, co-sharers and private respondent Nos. 3 to 28 filed an appeal against order (Annexure P/1) before the Superintending Canal Officer (respondent No. 1), which has been dismissed vide order dated 14.06.2005 (Annexure P/2). It is averred that the said order is alleged to have attained finality. The area of the petitioner and his family members was being irrigated from outlet No. 3190-R Kotli minor, but due to political vendetta of the then Finance Minister, Punjab, respondent Nos. 3 to 28 along with their family members moved an application for shifting the head of outlet No. 3190-R Kotli Minor to 1625 ft. upstream in order to cause loss of smooth irrigation to the land of the petitioner. It is pleaded that Divisional Canal Officer in hasty manner ordered the shifting of outlet No. 3190-R minor and sanctioned a new outlet No. RD 1606-R minor and added 63.57/56.9 acres' area of outlet No. 89150/L Rajbaha Jaitu on his own without providing opportunity of hearing to the right holders. Application was moved by the petitioner and other right holders not to review the previous orders and also opposed the shifting of outlet No. 3190-R minor. It was specifically brought to the notice of the Divisional Canal Officer that no scheme had been prepared or published under Section 30-A or under Section 30-B(1) of the Act. All this was done under a political pressure. Otherwise also, the same is not sustainable in the eyes of law. Against the order of the Divisional Canal Officer, an appeal was filed which has also been dismissed by the Superintending Canal Officer vide order dated 18.07.2007 (Annexure P/6). There were various other allegations by other persons that the land is not being irrigated from the shifted point of Outlet No. 3190 and this point has been shifted to far off place and distance has been increased to 1625 feet backward and siphon system is required to be added for irrigation. C.W.P. No. 12911 of 2007 was filed in this Court by Jaswinder Singh-petitioner challenging orders dated 29.05.2007 and 18.07.2007 passed by Divisional Canal Officer and Superintending Canal Officer, respectively, for shifting of the head of outlet No. 3190-R and sanctioning new outlet at Burji No. 1606-R Kotli minor (1625 ft. upstream). The said writ petition was allowed and the orders impugned therein were set aside vide order dated 01.12.2009 (Annexure P/7) and direction was issued to reconsider the matter in accordance with law. The operative part of the order (Annexure P/7) reads as under:-

(2.) That respondent No. 2, on an application moved by the respondents and without waiting for the copy of order of this Court (Annexure P/7) proceeded with the matter in haste and passed the impugned order approving the splitting of outlet No. 89150-L of Jaitu Rajbaha. Hence, this writ petition.

(3.) Upon notice, respondents appeared and filed their separate written statements. Respondent Nos. 1 and 2 in their written statement stated that application was moved by the respondents. After considering the reports and comparative command statement submitted by the Junior Engineer, new outlet No. 3190-R Kotli Minor for 354/345 acres of land was sanctioned. On receipt of an application for transfer of the area from outlet No. 3190-R to RD 1606-R Kotli minor, spot inspection was carried out. The water level at RD 1606-R Kotli minor was considered and it was found that it would be for better irrigation. It was also submitted that warabandi has already been fixed and sanctioned under Section 68 of the Act regarding these outlets.