IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 17708 of 2009 Date of decision :19.11.2009 Mange Ram .… Petitioner Versus State of Haryana and Others … Respondents Present : Mr. Anil Malik, Advocate for the petitioner. *** S.S. SARON, J. The present petition has been filed under Articles 226/227 of the Constitution of India seeking quashing of the order dated 22.8.2008 (Annexure P3) passed by the Sub-Divisional Canal Officer, Hisar Water Services Sub-Division No.1, Hisar (respondent No.4) and the order dated 27.7.2009 (Annexure P4) passed by the Divisional Canal Officer, Hisar Water Services Division, Hisar (respondent No.3) whereby the water course AB as shown in the site plan (Annexure P5) has been ordered to be restored. Chander Bhan (respondent No.5) submitted an application in July/August, 2007 to the Water Services Authority, Hisar stating that the petitioner and his co-sharers had in May, 2007 dismantled the water course leading to his fields through Killa No.40//24/1 of the petitioner. On the said application, the Sub- Divisional Canal Officer, Hisar Water Services sub-Division No.1, Hisar (respondent No.4) proceeded in accordance with the provisions CWP No. 17708 of 2009 [2] of Section 24 of the Haryana Canal and Drainage Act, 1974 (“Act” – for short). Thereafter, the Sub-Divisional Canal Officer (respondent No.4) inspected the site on 2.8.2007 and he did not find any sign of the water course being recently demolished as had been alleged by Chander Bhan (respondent No.5). It was also observed by respondent No.4 that no water course used to run on the Eastern side of Killa No.40//24/1. The Sub-Divisional Canal Officer (respondent No.4) vide order dated 20.9.2007 (Annexure P1) dismissed the application filed by Chander Bhan (respondent No.5). Aggrieved against the said order, Chand Bhan (respondent No.5) filed an appeal before the Divisional Canal Officer, Hisar Water Services Division, Hisar (respondent No.3) who vide order dated 10.7.2008 (Annexure P2) remanded the case to the Sub-Divisional Canal Officer (respondent No.4) for deciding it afresh. The Sub-Divisional Canal Officer, who was another officer as the earlier one had been transferred, examined the site on 11.8.2004 with the Ziledar, Hisar and found the water course AB to be in existence. The Warbandi had also been sanctioned in respect of the water course in February, 1990, which showed that the water course existed and was running at the site. There were some signs also with respect to the water course at the site. The persons nearby also verified the existence of the water course. It was shown that the water course was running for the last about 22 years. Besides, the water course came in the category of a permanent water course. Accordingly, the demand of Chander Bhan (respondent No.5) for restoration of the water course AB in Killa No.40//24/1 (Eastern side) was held to be justified and its restoration was ordered in terms of order dated 22.8.2008 (Annexure P3). The CWP No. 17708 of 2009 [3] petitioner and his father Sohan Lal aggrieved against the said order dated 22.8.2008 (Annexure P3) passed by the Sub-Divisional Canal Officer (respondent No.4) filed an appeal before the Divisional Canal Officer (Respondent No.3). The latter vide order dated 27.7.2009 (Annexure P4) dismissed the appeal. It was held that from perusal of the ‘khaka’ plan and Warbandi record, it was proved that the water course was existing and running at the site from more than 20 years. As such, the water course AB came under the definition of permanent water course. Besides, there was no source for irrigating the land of respondent No.5 except the water course AB. The Sub-Divisional Canal Officer, it was observed, had decided the case after site inspection and he had also mentioned in his decision that some signs already existed at the site. In view of the said facts, the demand of the appellant was not considered genuine and the appeal was dismissed. Aggrieved against the order dated 27.7.2009 (Annexure P4) passed by the Divisional Canal Officer (respondent No.3), the petitioner has filed the present petition under Articles 226/227 of the Constitution of India. Learned counsel appearing for the petitioner submits that there is no water course at the site and the findings in this regard have been recorded on mere conjectures. It is further submitted that in any case the restoration of the water course in terms of the proviso to Section 24(1) of the Act would only be for a period of one year. Therefore, the Sub-Divisional Canal Officer, Hisar (respondent No.4) and the Divisional Canal Officer, Hisar (respondent No.3) have gravely erred in passing the impugned orders dated 22.8.2008 (Annexure P3) and 27.7.2009 (Annexure P4) respectively. It is also CWP No. 17708 of 2009 [4] submitted that the petitioner had raised a contention that the Katcha kotha and a temple also existed at the site. Therefore, the restoration of the water course would result in the demolition of the katcha kotha and the temple. After giving my thoughtful consideration to the matter and going through the records, I find no merit in the petition. The question as regards the existence of water course is a pure question of fact, which is not liable to be gone into in exercise of the supervisory writ jurisdiction of this Court. The Sub-Divisional Canal Officer after having visited the spot and verifying the record as also after having come to the conclusion that a water course existed at the site AB as shown in the site plan (Annexure P5) and the same being upheld by the appellate authority, this Court is not to re-appreciate the evidence and substitute its decision for that reached at by the Canal Authorities. This Court in exercise of its power of judicial review under Articles 226/227 of the Constitution of India does not sit in appeal over the findings and conclusions reached at by the canal authorities and re-appreciate the evidence and material on record so as to come to a conclusion different from that which has been reached at by the authorities unless the said decision is shown to be perverse or irrational, which admittedly is not the position in the present case. The Sub-Divisional Canal Officer, Hisar in his order dated 22.8.2008 (Annexure P3) had inspected the site on 11.8.2008 and had found some signs of existence of the water course at the site. Besides, Warbandi had been sanctioned in February, 1990. The persons nearby the area also verified the existence of the water course. It was held that the water course had been running since the last about 22 CWP No. 17708 of 2009 [5] years. Besides, it came under the category of a permanent water course. The Divisional Canal Officer, Hisar (respondent No.3) in his order dated 27.7.2009 (Annexure P4) from the perusal of the ‘khaka’ plan and Warbandi held that the record proved that the water course existed and was running at the site for more than 20 years. As such, the water course AB came within the definition of permanent water course. Besides, it was held that there was no source of irrigation for respondent No.5 except the water course AB. The Sub-Divisional Canal Officer (respondent No.4) and the Divisional Canal Officer (respondent No.3) have held the water course to be a permanent water course. Therefore, the contention of the learned counsel for the petitioner that it could be restored for a period of one year is without basis as proviso to Section 24(2) of the Act envisages that in case of a temporary water course its restoration shall not be for a period of exceeding one year. In the present case, the water course has been held to be a permanent water course and not a temporary water course. The contention of the learned counsel for the petitioner as regards the construction of a ‘katcha kotha’ and temple are without basis. A perusal of the order dated 22.8.2008 (Annexure P3) passed by the Sub-Divisional Canal Officer (respondent No.3) shows that restoration of the water course has been ordered and after dismantling the temporary ‘katcha kotha’ constructed by Sohan Lal father of the petitioner it is to be removed at the time of restoration. The contention regarding temple at the site is only a bald assertion which has been raised as one of the contentions raised by the petitioner. CWP No. 17708 of 2009 [6] Otherwise there is no material to show that any temple exists at the site. No finding in this regard has been given and no affidavit or other material has been placed on record before the Canal Authorities regarding the existence of a temple. Even otherwise, there is no order of demolition of any temple by the Canal Authorities and order for restoration of the water course after dismantling the temporary ‘katcha kotha’ constructed by Sohan Lal father of the petitioner. As such, the said contention of learned counsel for the petitioner regarding dismantling of a temple is also without any force. Accordingly, there is no merit in this petition and the same is dismissed. (S.S. SARON) JUDGE November 19, 2009 amit