SIRI RAM SINGH Vs. KUNDAN LAL

JUDGEMENT

(1.) This order will dispose of Letters Patent Appeals Nos. 258 and 332 of 1971. The facts giving rise to these appeals may first be surveyed. Kundan Lal respondent in both these appeals filed Civil Writ Petition No. 3186 of 1970 against the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana, the Divisional Canal Officer, Bhatinda Division. Bhatinda, Bhai Siri Bam Singh (since deceased), end the Gram Sabha of village Jhumbha through its Sarpanch praying for setting aside the order of the Divisional Canal Officer, dated April 17, 1970 (Annexure 'C' to the writ petition), sanctioning a new watercourse instead of passing an order on the writ petitioner's application for restoration of a previous watercourse which was said to have been unauthorisedly dismantled by respondent No. 3 to the writ petition, and for the quashing of the appellate order of the Superintending Canal Officer, dated September 18. 1970, (Annexure 'D' to the writ petition), upholding the abovementioned order of the Divisional Canal Officer. The claim of the writ petitioner was that in the course of the consolidation proceedings In his village, provision had been made in 1962-63 for irrigating the fields of the writ petitioner and other land-holders through, a water-channel (starting from a new minor known as peori Minor) which water-channel passed through the land of Bhai Siri Ram Singh. and that the writ petitioner was getting water for his fields from the said water-channel (khal which had been shown as 'AB' in the plan filed by the petitioner with the writ petition) since 1963. and that a portion of the said khal which was running through the land of Bhai Siri Ram Singh and his sons had been illegally demolished by him in the first week of July, 1966. The writ petitioner's application under Section 30-FF of the Northern India Canal and Drainage Act (8 of 1873) (hereinafter called the 'Act') given on July 6, 1966. for restoration of the dismantled portion of the watercourse was allowed by the order of the Divisional Canal Officer in September. 1966. It was complained that when respondent No. 3 came to know of the said order, he approached the Divisional Canal Officer, and got stay of operation of that order, and that ultimately instead of passing a proper order on the application for restoration by vacating the stay order, the Divisional Canal Officer proceeded to act under Sections 30-A and 30-B of the Act with a view to provide the petitioner with a new alternative watercourse which was allowed by him suo motu by his order, dated April 17, 1970. which (as already stated) was upheld by the Superintending Canal Officer.

(2.) The petition was resisted by all the respondents mainly on two grounds, namely:-- (i) that it was open to the Divisional Canal Officer either to make an order for restoration of the dismantled water-channel or to initiate suo motu action under Section 30-A of the Act with a view to provide the petitioner with an alternative watercourse; and (ii) that the water-channel 'AB' had not been sanctioned by the canal authorities, and so the Divisional Canal Officer was not required by law to make an order for its restoration. The learned Single Judge repelled the first argument on the basis of the Judgment of A.D. Koshal, J., in Prithi v. Superintending Canal Officer, 1970 Puni LJ 566, and the second argument on the strength of the judgment of the same Judge in Umed Singh v. State of Haryana, 1970 Punj LJ 503. In the view taken by the learned Single Judge in the abovesaid two decisions, he did not consider it necessary to decide whether the procedure provided in Section 30-A of the Act had or bad not been strictly complied with. Nor did he go into the additional question raised by the petitioner about the newly provided water-course being or not being a proper one. Though in the course of the judgment, the learned Single Judge while agreeing with the previous judgment of this Court in Umed Singh's case (supra) observed that the Divisional Canal Officer was bound to restore the dismantled water course AB, it was ultimately ordered in the operative portion of the judgment while quashing the impugned orders of the Divisional Canal Officer and the Superintending Canal Officer that the said authorities may decide the application of the petitioner In the light of the observations made in the judgment.

(3.) L. P. A 258 of 1971 was filed by Bhai Siri Ram Singh, L. P. A. 332 of 1971, has been filed by the Superintending Canal Officer and the Divisional Canal Officer. In L. P. A. 332 of 1971, an application filed toy the Government (C. M. 9581 of 1974) praying for deleting the name of Bhai Siri Ram Singh from the array of respondents was allowed ex parte by a Division Bench of this Court on December 16, 1974. subject to all just exceptions. No exception has been taken to that order by Mr. S.S. Mahajan Advocate who appears for the legal representatives of Bhai Siri Ram Singh in the connected appeal.