59 V Inthe HighCourt for the States of PunJaband Haryanaal ChandIgarh RSA No 1539012008 Dateof decisionl Uecember l2008 Balbir Singh Appellant Versus Lakshmiand others espondents Coram Honble MrJustice Rakesh Kumar Garg Present Mr Hooda Advocate m for the appellant Ql MrDevinder Punia Advocate for the respondent 0 t RakeshKumar GarqJ lI This is defendants second appealchallengingIhe judgmentand I decreesof the courts below wherebysuit of the for z permanentinjunctionrestratningthe defendants to dig out a water course throughhisIand as detailed In the suit was decreed partlyand order dated r 21 42004 passedbythe DIvisionalCanal Officer was set aside I Briefly stated the facts of the case aie thal tne plaintiffIs the owner rd8 in possession of Iand measu ring 8 KanaIs of KiIIa No and KIlla No measuring10 Y7 M of RectangleN0260 As pef the averrilents there has Z never been any water course on the norlhern side of Killa No 1 of Rectarigle 1110260 on outlet RD 201 451TL Sahu Minor tn Village Kinala fehsIl and District Hissar The deferldant No wtth the lntention to harin the plaintifffiled an application before SDO Water Services Sub DivisIon Uklana statingtllat he had givena water course betweeiiKilla No 10 and 1 of RectangleN0260 and he be allowed to irrigatehis Iand througl t this waler course SDO Ukiana inspectedthe spot and examined the record and hela that there was nevei any watercourse in the boundaryIineof Killa No 1 and 10 of RectangleNo26O on outietRD 201451TLSahu Minor at villayeKinala and rejecteoIhe appiIcaliorof 41e Singh Gagan Preet 2012.11.17 13: 31 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document e9 60 a RSA Nol 539 of 2008 2 4 defendantNo1e filed an before the Divisional Canal Officer Tohana whovide his order dated 21 200Ext Pl l ordered to restore the water course In this sultthe said order has been challengedon the groundthat water course has been sanctionedunder the provisionsof Iaw Neither the no same was givenbyagreementof the partiesnor the same were in existence by In fact the said water course was never 1n existence at the spot The order is vague ambiguousand noroeaking On this groundthe presentsuit was filed Upon notice defendant Nosl and 2 did not appear despiteseNice and therefore they were proceededagainstex parte Defendant No 3 appeared r and filed written statement therein that there is a water course in Kiila 0 l on its northern side since the time of the forefathers of the defendant and the same IS being used by the defendant for irrigatingthe Iand from the 0 outlet RDNo 201451TL Sahu minor The water course was illegallydismantled bythe plaintiffand the same was restored at sIte on 29 5 2004 with policehelpin Z of order dated 21 004 passedby Divisional Canai Officer Tohana It was fuither alleged that the ca nal authoritieshave rightlyrestored the water course under Section 24 of the Canal Act on the basis 01order dated 21 42004 I S Itwas also ailegedthat in fact the water course restoredby Canal Authorities is a sanctioned one and comes iri the definitionof water course All other allegations were denied and dismissal of the suit was prayedfor Z Afterevaluatingthe evidence the trial Court decided issue NO l in l1 favour of the plaintiff holdingthat the defendant had not been abie to establish that the watercou rse in question was a sanctioned wateocourse and decreed the suit ofthe plaintifespondentpanlyand set aside the order dated 21 42004 passedbythe Divisional Canal Officer Feelingaggrievedagainstthe aforesaid judgtnentand decree of the trialCourt the defendant filed an appealwhich was dismissed bythe Additional DistrictJudge Hissar vide impugnedJudgrnent and decree dated 5 5 2008 Stlll not satisfed the defendailt has filed th instant appeal jUe Singh Gagan Preet 2012.11.17 13: 31 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 61 4 RSA No15390f2008 3 thejudgmentand decrees of the courts below in this Courl counsel for the appellanthas vehementiyargued that it has been on the flle of the case that the water course which was illegally dismantledby the had existed and was runningon the spot In the joint of the partiesfor jrrigating the Iand of Killa Numbers which hadcome in possessionof the appellanland in view of these facts and the water course was rightlyordered to be restored under Section24 of the Canal Act Ithas been furtherargued byhm that there was no need to getthe disputedwater cou rse sanctionedfor the reason that the khewat was Joint Lr Learned counsel has also arguedthat the suit filed bythe IS 0 not maintainable as civil court is barred under Section 25 of the 0 canal and DrainageAct 1974 Hence the impu9nedlUd9mnl ad lI decreesof the courts below are Iiableto be set aside I On the other hand Iearned counsel appearing on behalf of the respondenthas supportedthe findingsof the couds below and has aiguedthat no substantial questionof Iaw arises in this appeal and a concurrent findingof C fact has been recorded in favour of the bythe couns below I thatthere existed no sanctioned khall as allegedunder the provisions of Haryana c8 Canal and DrainageAct 1974 have heard Iearned counsel for the partiesand perusedthe m7 Z recorclAdmittedlythe stand taken by the appellantin his wrItten statement is thatthe watercourse in questionis sanctIoned under the provisionsof Haryana Canaland Drainage Act 1974 whereas his stand is belied from the testimonyof Dwl who stated that the water course was not sanctiorled under Sectlorl 17 Of the Canal Act Thus the order dated 21 4 2004 EPl passedbythe DlvisiorIal CanalOfficer cannot be said to be passedin accordance wIth the provisionsof the Act as before passingsuch an order il was requiredthat the water course was either sanctioned one or was in existence under agreement or by prescriptlon or the same was temporary wa ter cou rse ru n nI ng not Iess tha n six e81 Singh Gagan Preet 2012.11.17 13: 31 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 62 1 7 6 J RSA No15390f2008 4 priorto the demolition However this is not the case of the appellantas his case IS that the water cou rse was sanctioned one which is factually incorrecturther of the counsel that he was usingthe said water course for a Iongtime and therefore he is entitledto use the same is also Iiable to be rejectedas there is no between the patliesthat the aforesaid allegedwater course shallremain in existence and the appellantwill be entitled to use of the same The next of the counsel for the appellantthat jurisdiction ofthe civilcouIt is barred as the had specificremedyunder Section 2031ofthe Haryana Canal and DrainageAct is also without any merit r Under Section 20 of the HaryanaCanal and DrainageAct 1974 an appealIies 0 t against the decision of the Divisional Canal OHicer only on an order passed I under Section 1821 of the said Act and the impugnedorder has not been 0 passed under these provisionsMoreover under Section 2031of the Canal Act I power of revision withthe canal authoritiesis suo moto and the same cannot be Z saidto be an effective alternativeremedyfhe bar of Section 25 of the Haryana Cana and Act will also not applyin this case as under Section 24 of r theAct restorationof a sanctioned watercourse can be ordered only whereas c8 in thepresentcase a findingof fact has been recorded that khal in question was not a sanctioned one Thus the order dated 2142004 was without jurisdictionand the bar of Section 25 of the Canal Act will not applyin the Z presentcase For the reasons recorded above I find no merit in this appeal No substantialquestionof Iaw arises Dismissed aie 4 December i6 2008 RAKESH KUMAR GARGI nk JUDGE 2 r Singh Gagan Preet 2012.11.17 13: 31 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document