CWP No.13066 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13066 of 2008 Date of decision: 05.10.2010 Satnam Chand and another ..... Petitioners Versus Superintending Canal Officer, Ferozepur Canal Circle,Ferozepur and others ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Sandeep Jasuja, Advocate for the petitioners. Mr.C.S.Brar, DAG, Punjab for respondent no.1. Mr.S.P.S.Tinna, Advocate for respondents no.2 and 3. ***** RAJIVE BHALLA, J. The petitioners pray for issuance of a writ in the nature of certiorari for quashing the orders dated 12.09.2002 and 03.03.2008, passed by the Deputy Collector, Abohar, Canal Division, Abohar and the Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur, respectively. Counsel for the petitioners submits that as the right to receive the “nikal'' (residual water) was allowed to the petitioners vide order dated 19.11.2001, passed by the Deputy Collector, in the presence of respondent no.3, the application filed by his wife-respondent no.2 for allotment of residual water could not have been allowed. It is further submitted that pursuant to the order dated 19.11.2001, four minutes were deducted from the petitioners turn of water and an extra ten minutes turn of water was granted to respondent no.3. The application filed by respondent no.2 for allotment of the “nikal” should have therefore, been rejected. It is further argued that the decision to allot “nikal” to respondent no.2 is sought to be CWP No.13066 of 2008 -2- justified on the ground that the petitioners land is situated on the branch watercourse whereas land belonging to respondent no.2 is situated on the main watercourse. The finding is factually incorrect and contrary to the site plan (Annexure P-1). Counsel for respondent no.2, on the other hand, submits that land belonging to the answering respondents is situated on the main watercourse. The petitioners land was brought within the command area in the year 2001 by constructing a branch watercourse. As per the principles of irrigation as the petitioners land is situated on the branch watercourse it has to run first and therefore, the “nikal” has been rightly allowed to the private respondents. It is further submitted that the private respondents were receiving the “nikal” since 1997 and have therefore been rightly held entitled to the “nikal.” I have heard counsel for the parties and perused the impugned orders. Harbans Kaur-respondent no.2 filed an application, before the Deputy Collector, Abohar, for change of her turn of water on the plea that she is entitled to the “nikal”. The Deputy Collector, allowed the application. The petitioners filed an appeal before the Divisional Canal Officer, Abohar Canal Division, Abohar. The appeal was allowed vide order dated 21.11.2002. Harbans Kaur thereafter filed a revision before the Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur. The revision was allowed by holding as follows: “According to site plan water course of respondents come first, as per rule of residue water firstly small water course is started and after that main water course is started. Therefore, the right of nakka should be given to the appellants. The turn of water was perused, the respondents did not complete his residue water, therefore, there is no right of residue CWP No.13066 of 2008 -3- water of the respondents.” The Superintending Canal Officer, held that as the petitioners land is situated on the branch watercourse, it would run first thereby conferring the right to receive the “nikal” upon the private respondents. While accepting the appeal, the Superintending Canal Officer, failed to consider the effect of an order dated 19.11.2001, which was passed on the basis of an agreement between the petitioners and Mohinder Singh, respondent no.3 husband of respondent no.2-Harbans Kaur. The application for change of turn of water and the appeal was filed by Mohinder Singh on behalf of Harbans Kaur. It is true that Harbans Kaur owns a separate parcel of land but by way of the impugned order, benefit of “nikal” has accrued to Mohinder Singh, also. In this view of the matter, it would be appropriate to remit the matter to the Superintending Canal Officer, and to call upon him to consider the effect of the order dated 19.11.2001, passed by the Deputy Collector, Abohar, while deciding the revision afresh. In view of what has been stated hereinabvoe, the writ petition is partly allowed, the order dated 03.03.2008 is set aside and the matter is remitted to the Superintending Canal Officer, to decide the revision afresh, within a period of three months from the receipt of a certified copy of this order. Parties are directed to appear before the Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur on 01.11.2010. 05.10.2010 [ RAJIVE BHALLA ] shamsher JUDGE