Please Log in / Register to access the full text of this judgment and the entire database
(2012) Law Today Live Doc. Id. 12726 = 2012(1) L.A.R. 589
Decided on: 23.02.2012
Present: Mr. Shalender Mohan, Advocate for the petitioner.
Mr. Sandeep S. Mann, Sr. DAG, Haryana for respondents No.1 and 2.
Mr. Yashpal Malik, Advocate for respondent No.3.
A. Haryana Canal and Drainage Act, 1974 (29 of 1974), Section 24 – Watercourse – Demolition of – Alternative water course -- While dealing with an application u/s 24 of the Act, the canal authorities cannot provide for alternative watercourse -- Scope of Section 24 is very limited -- Canal authorities are bound to record a finding with regard to existence of the watercourse and its demolition -- Unless and until the canal authorities come to a conclusion that the water course has been dismantled then authorities can allow the application for restoration.
I have considered the rival contentions of the parties and am of the firm view that while dealing with an application under Section 24 of the Act, the canal authorities under the Act cannot provide for alternative watercourse. The scope of Section 24 is very limited. The canal authorities are bound to record a finding with regard to existence of the watercourse and its demolition. Unless and until the canal authorities come to a conclusion that the water course has been dismantled then authorities can allow the application for restoration. …….
(Para 10)
B. Haryana Canal and Drainage Act, 1974 (29 of 1974), Section 24 – Watercourse – Shifting of – No one can run the water at his own through the watercourse.
I am not in agreement with the finding recorded by the canal authorities. The SCO has failed to point out that how the petitioner could shift source of irrigation to another watercourse without the order of the canal authorities and unless the area is changed from one outlet to another outlet and one watercourse to another watercourse. No one can run the water at his own through the watercourse……
(Para 11)
C. Haryana Canal and Drainage Act, 1974 (29 of 1974), Section 24 – Watercourse – Demolition of -- Canal authorities have admitted that watercourse was in existence and was running prior -- Only objection raised by the S.C.O. was that Act does not permit restoration of the water course which has been demolished and was not running -- Contention of the S.C.O. is not sustainable in law -- Sub Divisional Canal Officer may, after making such enquiry as he may deem fit, require, by a notice in writing served on the persons found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore, at his own cost, the watercourse or temporary watercourse to its original condition within such period not exceeding 21 days, as may be specified in the notice.
…… The canal authorities have admitted that watercourse was in existence and was running prior to 20.12.1997. This fact has been admitted by the SCO in Court during the course of arguments also. The only objection raised by the SCO was that Act does not permit restoration of the water course which has been demolished and was not running. This contention of the SCO is not sustainable in law. The reading of Section 24 of the Act makes it clear that if a person demolishes, alters, enlarges or obstructs a watercourse or a temporary watercourse or causes any damage thereto, any person affected thereby may apply to the Sub-Divisional Canal Officer for directing the restoration of the same to its original condition. The Sub Divisional Canal Officer may, after making such enquiry as he may deem fit, require, by a notice in writing served on the persons found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore, at his own cost, the watercourse or temporary watercourse to its original condition within such period not exceeding 21 days, as may be specified in the notice.
(Para 11)
D. Haryana Canal and Drainage Act, 1974 (29 of 1974), Section 2(15) – Watercourse -- Watercourse sanctioned under this Act or in existence under an agreement or by prescription will be deemed to be a watercourse.
The word 'watercourse' has been defined in Section 2(15) of the Act, which reads as under:
(15) “watercourse' means any channel including all its subsidiary works which is supplied with water from a canal, but not maintained at the cost of the State Government, and is sanctioned under this Act or is in existence under an agreement or by prescription.
The reading of Section 2(15) makes it clear that the watercourse sanctioned under this Act or in existence under an agreement or by prescription will be deemed to be a watercourse.
(Para 12-13)
E. Haryana Canal and Drainage Act, 1974 (29 of 1974), Section 2(15), 24 – Watercourse left in consolidation proceedings -- Watercourses which had been carved out during consolidation as per the scheme approved by the residents of the village, will be deemed to be left out under the agreement and are sanctioned watercourses -- Authorities are bound to restore such watercourses under the provisions of Section 24 of the Act -- Watercourse has been running for more than 20 years will also come under prescription.
In the present case, the watercourse has been left during the consolidation by way of a “scheme” confirmed under Section 20 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The scheme was approved after inviting objections from the representative of the village, which means that all the residents of the village agreed to the approval of the scheme making reservation for common purpose. The watercourses carved out during the consolidation with the consent of the residents of the village during consolidation are covered under the definition of Section 2(15) of the Act i.e. is in existence under an agreement.
It is also an admitted fact that the watercourse had been running since 1954 and has been demolished and has stopped running w.e.f. 20.12.1997 as stated by SCO certainly the watercourse will also come under the definition of prescription as provided in Section 15 of the Easement Act, 1882 being in existence for more than 20 years. The action of the authorities is not based on the facts. The watercourses which had been carved out during consolidation as per the scheme approved by the residents of the village, will be deemed to be left out under the agreement and are sanctioned watercourses.
Since I have held that watercourses left during consolidation are by the agreement of all the residents of the village as objections were invited before approving the scheme then the authorities are bound to restore such watercourses under the provisions of Section 24 of the Act. In the present case watercourse has been running for more than 20 years will also come under prescription.
(Para 14-16)
JUDGMENT
PARAMJEET SINGH, J. –
1. The instant writ petition has been filed under Articles 226/227 of the Constitution of India for quashing of order dated 07.04.2008 (Annexure P-7) passed by Superintending Canal Officer under the provisions of Haryana Canal and Drainage Act, 1974 (henceforth to be referred as “the Act”).
2. Brief facts of the case are that Ram Kumar-petitioner filed an application under Section 24 of the Act for restoration of the demolished water-course 'AB' shown in site plan (Annexure P- 8). As per averments made in the petition it has been mentioned that water-course 'AB' was a water-course left during the consolidation proceedings and was being used for irrigating the fields since the time of consolidation. Thereafter, private respondent No.3 demolished the water-course. Instead of restoring the disputed water-course, the canal authorities had referred to the alternative water-course from where the land of the petitioner could be irrigated.
3. Respondent No.3 filed written statement denying the rights of the petitioner by stating that two water-courses are already in existence on the Northern and Southern sides of the fields of the petitioner and both the watercourses touch the fields of the petitioner. The fields of the petitioner can be well irrigated from both the sides.
4. I have heard learned counsel for the parties and perused the record.
5. This court vide order dated 02.02.2011 directed the Superintending Canal Officer, Bhakra Water Services, Circle No.1, Hisar (hereinafter to be referred as the 'SCO') to conduct a spot inspection and thereafter consider the facts and circumstances of the case whether this water-course comes within the definition of Section 24 of the Act. The SCO was further directed to file a report after making enquiry whether the water-course 'AB' existed or not, whether temporary water-course as defined in Sub-section 12 of Section 2 of the Act existed.
6. In pursuance of order dated 02.02.2011, SCO submitted his report along with affidavit Annexure -I which is reproduced as under:
i. Starting from point A, in Killa No.78//5 and 6 (Eastern side) the water course is not in existence at site and crop of wheat is standing there.
ii. In Killa No.78//15(Eastern side) and unmaintained katcha (unlined) water course is in existence.
iii. In Killa No.78//16 & 25 (Eastern Side) a lined water-course is in existence up to point B.
iv. A lined water course also links to the holding of the petitioner on the northern side of Rect./Killa No.78/5.
2. Statement of both the parties were also recorded which is attached as Annexure B and C.
3. I have also consulted the official record to know the reality whether any water-course was in existence or not.
i) As per Masavi (Revenue record) the water-course AB was left along the path in Rect. No.78/5, 6, 15, 16 & 25 (Eastern side) Annexure D.
ii) As per Fard Zamabandi of Revenue record the Rect./Killa No.78//4/2/1 (4K-4M) & 5 (6K-16M) belong to Ram Kumar etc. Ss/o Khajana son of Amar Singh. Annexure E.
iii) As per record of irrigation figures the area i.e. Rect./Killa No.78//4/2/1 and 5 of the petitioner Ram Kumar was getting irrigation from the year 1997 to 2000 Annexure F.
iv) As per khaka plan of sanctioned warabandies dated 05.08.1964 Annexure G and 23.10.1989 Annexure H the watercourse was in existence through the Rect./KIlla No.78//5, 6, 15, 16, 25 (Eastern side).
But as per khaka plan of dated 20.12.1997 Annexure I, the watercourse was in existence only in Killa No.78//25 & 16 min (Eastern side) and not in killa No.78//5, 6, 15 and 16 min.
In my opinion the watercourse was not in running condition since 20.12.1997 and there was no complaint about demolition during the succeeding period of 13 months from 20.12.1997 to 18.01.1999 that implies watercourse did not seem to be existed at site, but still irrigation was being done by the petitioner, further indicating that he had shifted to some other watercourse/source and he remained silent. It proves that the watercourse was not in running conditions since last 13 months when the complaint was received. So on the day, when complaint was received by the Sub-Divisional Canal Officer, the watercourse allegedly damaged, was not in existence at site and does not fall under Section 24 of the Haryana Canal & Drainage Act, 1974.
7. Learned counsel for the petitioner submitted that watercourse as provided during the consolidation falls within the definition of Section 24 of the Act. Section 24 reads as under:
24. Restoration of demolished or altered etc. watercourse.-
(1) if a person demolishes, alters, enlarges or obstructs a watercourse or a temporary watercourse any damage thereto, any person affected thereby may apply to the Sub-Divisional Canal Officer for directing the restoration of the same to its original condition.
(2) On receiving an application under Sub-section (1) the Sub Divisional Canal Officer may, after making such enquiry as he may deem fit, require, by a notice in writing serverd on the persons found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore, at his own cost, the watercourse or temporary watercourse to its original condition within such period not exceeding 21 days, as may be specified in the notice.
Provided that in case of a temporary watercourse its restoration shall not be for a period exceeding one year.
(3) If such person fails to the satisfaction of the Sub-Divisional Canal Officer, to restore the watercourse or temporary watercourse to its original condition within the period specified in the notice served on him under sub Section (2) the Sub Divisional Canal Officer may cause the water course or temporary water course to be restored to its original condition and recover the cost incurred in respect of such restoration from the defaulting person. The Sub Divisional Canal Officer may order recovery of a sum not exceeding Rs.500/- from the defaulting person by way of penalty. Out of this sum so recovered the Sub Divisional Canal Officer may order any amount to be paid to the aggrieved person for the damage caused to him. In case the penalty is not paid the same shall be recoverable as arrears of land revenue.
(4) Any person aggrieved by the order of the Sub Divisional Canal Officer, may prefer an appeal within fifteen days of the passing of such order to the Divisional Canal Officer, whose decision on such appeal shall be final.
(5) Any sum which remains unpaid within a period to be specified for this purpose by the Divisional Canal Officer may be recovered as arrears of land revenue.
8. Today Mr. M.S. Boora, SCO, Mr. Dharamveer, SDO and Rati Ram, Ziledar are present in Court. Mr. Boora, SCO stated that only running watercourse can be restored under Section 24 of the Act. He has opined that watercourse was not running since 20.12.1997. There was no complaint about the demolition for 13 months i.e. 20.12.1997 to 18.01.1999 that implies that watercourse did not seem to be existed at the site but the irrigation was being done by the petitioner which indicates that he had shifted to some other watercourse and remained silent. The finding of the SCO apparently appears to be based on presumption, surmises and conjectures. It is nowhere mentioned from which watercourse he was irrigating. Once the existence of the khal prior 20.12.1997 is admitted then the question arises how this watercourse stopped running. The case of the petitioner is specific that the watercourse had been provided at the time of consolidation which is stated to have been completed prior to 1954. In the statement of Ram Kumar-petitioner it is mentioned that he had been irrigating the land from this watercourse and he has even supplied the copies of Aksh Latha for the years 1954, 1964 and 1989 and has also made reference to the Jamabandi. It is also submitted that he has been irrigating fields from canal irrigation since the date canal irrigation commenced in the area. The SCO failed to point out that when the earlier watercourse was in existence, how the source of irrigation has been changed, how the watercourse has been changed. Neither he could point out any order by which the area has been shifted to new watercourse. The existence of the watercourse is required to be seen on the basis of documentary evidence i.e. the consolidation record and the record of the revenue officials, which may indicate that the watercourse has been provided at the time of consolidation or not. No document has been referred to by the SCO to conclude his opinion, rather in para 3 (i) of the report filed by the SCO, it is mentioned that as per Masavi (Revenue record) the watercourse 'AB' was left along the path in Rect. No.78/5, 6, 15, 16 and 25 (Eastern side) as per Annexure 'D'.
9. Learned counsel for respondent No.3 and the SCO have maintained that Section 24 of the Act only provides for restoration of the watercourse which may have been running. The SCO and learned counsel for respondent No.3 submitted that the Act only refers to the sanctioned watercourse which has been sanctioned under this Act itself. Hence no restoration can be ordered.
10. I have considered the rival contentions of the parties and am of the firm view that while dealing with an application under Section 24 of the Act, the canal authorities under the Act cannot provide for alternative watercourse. The scope of Section 24 is very limited. The canal authorities are bound to record a finding with regard to existence of the watercourse and its demolition. Unless and until the canal authorities come to a conclusion that the water course has been dismantled then authorities can allow the application for restoration. The canal authorities have recorded vague findings with regard to existence and running condition of watercourse. As per canal authorities, watercourse was not running since 20.12.1997 and the application for restoration was filed after a lapse of 13 months and a finding has been recorded that irrigation was being done by the petitioner which indicates that he had shifted to some other watercourse or source as he remained silent for 13 months.
11. I am not in agreement with the finding recorded by the canal authorities. The SCO has failed to point out that how the petitioner could shift source of irrigation to another watercourse without the order of the canal authorities and unless the area is changed from one outlet to another outlet and one watercourse to another watercourse. No one can run the water at his own through the watercourse. The canal authorities have admitted that watercourse was in existence and was running prior to 20.12.1997. This fact has been admitted by the SCO in Court during the course of arguments also. The only objection raised by the SCO was that Act does not permit restoration of the water course which has been demolished and was not running. This contention of the SCO is not sustainable in law. The reading of Section 24 of the Act makes it clear that if a person demolishes, alters, enlarges or obstructs a watercourse or a temporary watercourse or causes any damage thereto, any person affected thereby may apply to the Sub-Divisional Canal Officer for directing the restoration of the same to its original condition. The Sub Divisional Canal Officer may, after making such enquiry as he may deem fit, require, by a notice in writing served on the persons found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore, at his own cost, the watercourse or temporary watercourse to its original condition within such period not exceeding 21 days, as may be specified in the notice.
12. The word 'watercourse' has been defined in Section 2(15) of the Act, which reads as under:
(15) “watercourse' means any channel including all its subsidiary works which is supplied with water from a canal, but not maintained at the cost of the State Government, and is sanctioned under this Act or is in existence under an agreement or by prescription.
13. The reading of Section 2(15) makes it clear that the watercourse sanctioned under this Act or in existence under an agreement or by prescription will be deemed to be a watercourse.
14. In the present case, the watercourse has been left during the consolidation by way of a “scheme” confirmed under Section 20 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The scheme was approved after inviting objections from the representative of the village, which means that all the residents of the village agreed to the approval of the scheme making reservation for common purpose. The watercourses carved out during the consolidation with the consent of the residents of the village during consolidation are covered under the definition of Section 2(15) of the Act i.e. is in existence under an agreement.
15. It is also an admitted fact that the watercourse had been running since 1954 and has been demolished and has stopped running w.e.f. 20.12.1997 as stated by SCO certainly the watercourse will also come under the definition of prescription as provided in Section 15 of the Easement Act, 1882 being in existence for more than 20 years. The action of the authorities is not based on the facts. The watercourses which had been carved out during consolidation as per the scheme approved by the residents of the village, will be deemed to be left out under the agreement and are sanctioned watercourses.
16. Since I have held that watercourses left during consolidation are by the agreement of all the residents of the village as objections were invited before approving the scheme then the authorities are bound to restore such watercourses under the provisions of Section 24 of the Act. In the present case watercourse has been running for more than 20 years will also come under prescription.
17. In view of the aforesaid discussion, the case is remanded to the Superintending Canal Officer-respondent No.2 for fresh decision and respondent No.2 is directed to make a categorical enquiry from the revenue record i.e. Masavi, Resolutions, Jamabandis other record of rights and then record a categorical finding whether disputed water course was left during consolidation or not. Thereafter pass appropriate order.
18. Parties through their counsel are directed to appear before the Superintending Canal Officer-respondent No.2 on 19.03.2012.
19. Respondent No.2 is further directed to decide the matter within a period of three months from the date of appearance of the parties i.e. 19.03.2012 by passing a speaking and reasoned order.
20. Disposed of.
21. No order as to costs.
Order accordingly.
********