Civil Writ Petition No.9598 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P.No.9598 of 2010 Date of Decision :3.10.2011 Jasmail Singh ....Petitioner Versus Superintending Canal Officer & Ors. ....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.Surinder Garg, Advocate for the petitioner. Mr.C.S.Brar, Deputy Advocate General, Punjab for respondent Nos.1 & 2. Mr.Amaninder Preet, Advocate for respondent Nos.3 & 4. M ehinde r S ingh S ullar , J. (Oral) The contour of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy involved, in the instant writ petition and emanating from the record, is that Gurmail Singh son of Swaran Singh and Gurcharan Singh son of Kartar Singh respondent Nos.3 and 4 moved an application to the Divisional Canal Officer (for brevity “the DCO”) (respondent No.2) for restoration of the demolished watercourse, denominated by letters ABC, shown in site plan (Annexure P3), meant for irrigating their fields. The petitioner refuted their claim and pleaded that no turn of water was sanctioned on the said watercourse and respondent Nos.3 and 4 are irrigating their land from the pacca watercourse running at the spot (shown in green colour) and the earlier watercourse was un-sanctioned and bifurcated the land of the petitioner in two parts. 2. The DCO ordered the restoration of the indicated watercourse, by means of impugned order dated 15.9.2009 (Annexure P1). 3. Aggrieved by the decision of DCO, the petitioner filed the appeal, which was dismissed as well, by the Superintending Canal Officer (for short “the SCO”) (appellate authority), by way of impugned order dated 25.3.2010 Civil Writ Petition No.9598 of 2010 -2- (Annexure P2). 4. The petitioner still did not feel satisfied with the impugned orders of the authorities below and preferred the present writ petition, invoking the provisions of Articles 226/227 of the Constitution of India. 5. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, the instant writ petition deserves to be partly accepted in this context. 6. As is evident from the record that respondent Nos.3 and 4 moved an application to the DCO for restoration of the demolished watercourse in question, denominated by letters ABC, depicted in site plan (Annexure P3), meant for irrigating their fields. It is not a matter of dispute that the aforesaid watercourse was not a sanctioned watercourse, as per the turn of irrigation (warabandi) under the provisions of The Northern India Canal and Drainage Act, 1873 (hereinafter to be referred as “the Act”). The petitioner has specifically reiterated before the authorities that the disputed watercourse was not a sanctioned watercourse and it was passing through the middle of land bifurcating his fields in many parts. There is a sanctioned watercourse shown in green colour and the Nakkas are fixed at Khata Nos.101 and 102, mentioned in red colour of site plan (Annexure P3) for irrigating the land of respondent Nos.3 and 4. The land of petitioner is described in yellow colour, while the land of respondent Nos.3 and 4 is depicted in orange colour. Once it is proved that the water is flowing from a regular watercourse shown in green colour for irrigating the land of respondent Nos.3 and 4, then prima facie, there appears to be no necessity to order the restoration of un- sanctioned watercourse bifurcating the land of the petitioner in many parts, that too, without deciding the valid points raised by him. The DCO has neither discussed the evidence nor decided the genuine points raised by the petitioner in the impugned order. The mere fact that the SDO has recommended, ipso facto, is not a ground to restore the un-sanctioned watercourse, bifurcating the land of the Civil Writ Petition No.9598 of 2010 -3- petitioner. 7. In this manner, the DCO did not record the cogent grounds in this regard in the impugned order (Annexure P1). Not only that, the same very mistake was committed by the appellate authority (SCO) in the impugned order (Annexure P2), which, in substance, is as under:- “After hearing both the parties, the perusal of record and after discussion, this Court has found that the order dated 15.9.09 passed by the Divisional Canal Officer, Faridkot Canal Division, Faridkot is liable to be upheld. Due to demolition of Water Course, the Canal Irrigation of the respondents have been stopped and they are suffering loss of their crops. Concerned Ziledar and Sub Divisional Officer, Gholia has recommended for the restoration of Water Course after the spot inspection. The Water Course prior and after the disputed water course is in existence, therefore, it is genuine to restore the disputed water course ABC. Therefore, the appeal of the appellant is hereby dismissed under Section 30 FF of the Canal & Drainage Act, 8 of 1873 and the order dated 15.9.09 passed by Divisional Canal Officer, Faridkot Canal Division, Faridkot is hereby upheld in the welfare of Canal Irrigation and Production.” 8. Meaning thereby, neither the DCO nor the appellate authority has noticed that the watercourse is in existence depicted in green colour to irrigate the land of respondent Nos.3 and 4, did not adhere to the objections raised on behalf of the petitioner and did not decide the real controversy between the parties. They have not discussed the factual existing position at the spot, other evidence and material on record. The impugned orders are non-speaking orders and lack of application of mind. The statutory authorities under the Act are legally and independently required to record valid reasons. It is now well settled principle of law that every action of such authority must be informed by reasons. The order must be fair, clear, reasonable and in the interest of justice and fair play. Every order must be confined and structured by rational and relevant material on record because the valuable rights of the parties are involved in the lis. 9. Exhibiting the importance of passing speaking and reasoned order, Civil Writ Petition No.9598 of 2010 -4- the Hon'ble Apex Court in case Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and others (2009) 4 Supreme Court Cases 240 has held (para 8) as under : - “The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N.Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi- judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.” 10. Therefore, to me, the impugned orders cannot legally be sustained and it would in the interest and justice would be sub-served, if the matter is remanded back to the DCO to decide the objections of the petitioner by passing a speaking order. 11. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties. 12. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent hearing of the main petition, the instant writ petition is accepted. Consequently, the impugned orders (Annexures P1 and P2) are hereby set aside. The case is remitted back to DCO-respondent No.2 to decide the matter afresh, by passing a speaking order, in view of aforesaid observations and in accordance with law. 13. The parties through their counsel are directed to appear before the DCO-respondent No.2 on 29.11.2011 for further proceedings. 14. Needless to mention that nothing recorded herein above would reflect, in any manner, on the merits of the case, as the same has been so observed for a limited purpose of deciding the present petition. (Mehinder Singh Sullar) 3.10.2011 Judge AS Whether to be referred to reporter ?Yes/No