IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.703 of 2011(O&M) Date of decision: 18.04.2011 Risal Singh …..Appellant versus The State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Rakesh Kumar Garg Present: Mr.Ramesh Sharma, Advocate for the appellant Jasbir Singh, J. (Oral) This appeal has been filed against an order passed by the learned Single Judge dated 8.2.2011, dismissing CWP No.18338 of 2008, filed by the appellant-petitioner. In that writ petition, the petitioner had made a prayer to quash an order dated 3.4.2006 (P11), vide which, the application filed by the private respondents under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, was allowed and the order passed by the Consolidation Officer on 10.4.2003 was restored. Relevant portion of the order reads thus:- “After hearing both the counsels for the parties on dated 28.3.2006 the case was reserved for 3.4.2006 for orders. The counsel for the petitioner stated that at the time of consolidation the irrigation water course No.175 was attached with killa No.57/12, 19, 22 and khal No.175/1 khara No.251- LPA No.703 of 2011(O&M) 252 had been western side which was come North-East of the killa No.57/5, which was in continuance till date and which was proved by the order dated 2.5.1996 passed by the Sub Divisional Officer Irrigation Deptt. Jhajjar in which it is shown that Risal Singh & others s/o Ishwar has demolished this khal and in the same order the respondents were penalized for rupees 600/-. The consolidation officer Rohtak has also highlighted in his order dated 10.4.2003 that there is no mistake in entry of the khara No.175 as Gairmumkin khal in the record. The respondent has got his land around the cow dung pits, therefore, there is no necessity of any passage but still the Consolidation Officer, Rohtak gave a passage to the pits which was agreed/ proper. Therefore, while implementing the orders of consolidation officer, the orders of the settlement officer consolidation Rohtak dated 18.7.2003 and order of Assistant Director Consolidation Haryana, Rohtak dated 27.10.03 should be set aside as they are baseless and wrong. The irrigation water course should be allowed to remain in existence. The counsel for the respondent stated that the Consolidation Officer, Rohtak passed this order in violation of the remand order and in the remand order khara No.175 Gair Mumkin khal is wrongly entered whereas it should be recorded as passage. The order dated 18.7.2003 was rightly passed by Settlement Officer Consolidation Rohtak in view of the remand orders. Therefore, that order should be implemented and Assistant Director Consolidation Haryana Rohtak has also passed his order dated 27.10.05 upholding the orders passed 2 2 LPA No.703 of 2011(O&M) by the Settlement Officer Consolidation Rohtak and found it to be correct. The khal should be treated as a passage. Today after going through the record and hearing counsel for both the parties, it has been decided that khara No.175 irrigation water course which is in west of kila no.57/12, 19. 22 and on the North of cow dung pits no.487 & 493 was left as such during consolidation and khal river no.175/1 was with the firni to kila no.57/5 east-north which is in the revenue record. In the field book, the khal no.175 is also recorded as such and it is rightly reflected in the record. The khal no.175 and 175/1 is connected through the firni contained in no.149//1. After going through the orders of consolidation officer, Rohtak dated 10.4.2003 it is found that the said decision is correct. Irrigation water course cannot be passage. The said order confirms the existence of the irrigation khaal which is also clear from the order of the S.D.O. Irrigation which shows that irrigation water course was in existence at the site and the respondents have demolished it for that the respondents were fined. The counsel for the respondent has said that CADA has rejected the pucca water course but it is wrong. CADA Deptt. makes lined water courses. They have no power to reject the Irrigation watercourse. To change the direction of irrigation watercourse and do lining work are different functions. Irrigation Officer have no power to change a water course into passage which was sanctioned at the time of consolidation and can not change without any change in consolidation scheme. The Executive Engineer, Irrigation 3 3 LPA No.703 of 2011(O&M) Department also ordered for opening of the water course. The Settlement Officer Consolidation Rohtak has also not inspected the record carefully rather the order dated 18.7.2003 was passed by ignoring the record and decision to convert the water course into a passage was wrong. In the same way the Assistant Director, Consolidation, Rohtak has also not seen the record at the time of passing orders on dated 27.10.2005, rather they have wrongly interpreted the decisions on the file. Therefore, both the decisions of dated 18.7.03 & 27.10.2005 are baseless and set aside and the order dated 10.4.03 passed by Consolidation Officer, Rohtak is correct according to record, I order to implement that order and this appeal is partly recommended.” Before the learned Single Judge, it was case of the petitioner that instead of showing the disputed strip of land as a passage, the consolidation authorities have wrongly come to a conclusion that it was a water course. The said contention was negatived by the learned Single Judge by taking note of an order passed by the canal authorities which had become final, in which it has specifically been held, as a matter of fact, that the said strip of land, next to the circular road (Phirni) was left as a water course and was also used as such for the last more than many decades. The said finding was given after the spot inspection, after recording statements of the parties and in the interest of better irrigation. Instead of challenging that order, the appellant, in a very clever manner, started agitating his claim before the consolidation authorities to declare that water course as a passage. As per factual situation on the spot, in between the circular road (Phirni) and house of the appellant, (which he had constructed on a piece of 4 4 LPA No.703 of 2011(O&M) land, left for the manure pit, a narrow strip of land (water course) exists, if the appellant wants to get any passage, he should have made a request to the Gram Panchayat to construct a culvert on the said strip of land. Instead of doing so, in a mala fide manner, he continued to drag the private respondents in this frivolous litigation. The Learned Single Judge has rejected his claim by observing as under:- “17. The orders passed by the Canal authorities, in a dispute between the petitioner and respondents, indicate that a permanent water course existed for the last about 30 years which was disrupted by the petitioner and others to be used as a passage. The findings clearly indicate that a wrong picture has been painted and projected so as to take advantage of the land under the water course to be utilised as passage. When the Sub Divisional Canal Officer and Divisional Canal Officer passed orders, Annexure R-1 and R-2, against the petitioner, rather than challenging the said orders, an application under Section 42 of the Consolidation Act has been filed. The authorities under the Consolidation Act have returned a finding that it was a water course and same could not have been converted into passage. The petitioner has been provided a passage, as is evident from concluding portion of Annexure P-2.” We feel that the finding given is perfectly justified. Counsel for the appellant has also failed to show us anything on record that at the time of consolidation, in the Consolidation Scheme, it was provided that to the land left for the manure pits, any passage shall be 5 5 LPA No.703 of 2011(O&M) provided. If that is so, the claim of the appellant to get passage to a manure pit is not justified. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 18.04.2011 (Rakesh Kumar Garg) gk Judge 6 6