IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP 15047 of 2005 Date of decision: 19.11.2009 Mithu Singh ….Petitioner Versus The Superintending Canal Officer, Sirhind Canal, Ludhiana and ors ….Respondents Present: Mr BS Sidhu, Advocate for the petitioner. Mr HS Gill, DAG Punjab. None for the respondents-3, 4 and 5. S.S.SARON, J On the last date of hearing i.e. 10.9.2009, none was present and all the counsel were ordered to be informed of the adjourned date. As per office report, all the counsel have been informed. However, none is present on behalf of respondents-3, 4 and 5 today. Heard learned counsel for the petitioner and learned DAG Punjab. The petitioner has filed this petition under Articles 226/227 of the Constitution of India seeking quashing of the order dated 5.5.2004 (P2) passed by Divisional Canal Officer, Canal Division, Bathinda (respondent- 2) and order dated 26.5.2005 (P3) passed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent-1). The case of the petitioner is that he is owner of land measuring 23-1/2 Karams in Khasra No.239. This land is joint in ‘khata’ with Jagsir Singh (respondent-4) and his father – Karnail Singh (respondent-3). Besides, the petitioner is owner of land comprised in Khasra No.237, as given in sky blue colour in the site plan (P1). The land of the petitioner was barren and was not being irrigated with canal water. It was totally dependent on rain water. The petitioner, therefore, applied for water-course CWP 15047 of 2005 2 (pucca khal) as shown in dark blue colour along with path as shown in the site plan (P1) in dark brown colour. The petitioner was ready to give money to Jagsir Singh (respondent-4) for the ‘khal’ which would be 1-1/2 Karam in width and 23-1/2 Karams in length. An inquiry was got conducted through the Ziledar. The Divisional Canal Officer (respondent-2) after going through the report of the Zileldar who had visited the spot, gave his report that a common khal be given to Karnail Singh (respondent-3) – father of Jagsir Singh (respondent-4). However, Karnail Singh (respondent-3) made a condition that he was ready to give khal from his land provided the petitioner provides him a khal to pass through Khasra No.237 on its Northern side from point ‘A to D’ of the site plan (P1) and the petitioner could also use the same khal by making outlet at a point ‘A to E’. The khal on the Northern side of Khasra No.237 was wanted by Karnail Singh (respondent-3) to irrigate his land in Khasra No.116, shown in light brown colour in the site plan (P1) across the path shown in red colour. According to the petitioner, the Divisional Canal Officer, Bathinda (respondent-2) vide order dated 5.5.2004 (P2) without going into the facts and circumstances, sanctioned khal ‘AD’. The petitioner was asked to give his land so that the khal could pass thorough his Khasra No.237. This, according to the petitioner, was wholly arbitrary and illegal. The petitioner, aggrieved against the order dated 5.5.2004 (P2), filed an appeal before the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent-1) against the sanction of khal ‘AD’, which according to the petitioner was not viable from any angle. The Superintending Canal Officer (respondent-1), it is stated, instead of going into the matter and considering the facts and circumstances of the case, upheld the order dated 5.5.2004 (P2) passed by CWP 15047 of 2005 3 the Divisional Canal Officer (respondent-2) and sanctioned khal ‘AD’ vide order dated 26.5.2005 (P3). Therefore, the said order dated 5.5.2004 (P2) and 26.5.2005 (P3) are assailed by the petitioner. Written statement to the petition has been filed by Shri SK Sadana, Divisional Canal officer, Bathinda, Canal Division, Bathinda (respondent-2) on behalf of respondents-1 and 2. The filing of application by the petitioner before the Divisional Canal Officer, Bathinda (respondent- 2) for sanction of water-course 1 Karam in width and 23 Karams in length through the land of Karnail Singh (respondent-3) for his (petitioner’s) land comprised in Khasra No.237 with compensation from Khasra No.239 is admitted. It is submitted that Karnail Singh (respondent-3) made a statement before the Ziledar during field inspection that he was ready to give water-course from his land on the condition that the petitioner shall give him water-course through the Northern side of his land comprised in Khasra No.237 for the irrigation of his land situated on the other side of the path i.e. in Khasra No.116. Without the said condition, it was submitted that he was not ready give the water-course. It is submitted that the Divisional Canal Officer (respondent-2) in the interest of irrigation for the area of the petitioner, sanctioned 1-1/2 Karam wide water-course on the Northern side of filed No.238 and the petitioner, it was ordered, shall give 1-1/2 Karam water-course from the Northern side of his field No.237 upto the field of Karnail Singh (respondent-3). The filing of appeal by the petitioner against the order dated 5.5.2004 (P2) passed by the Divisional Canal Officer (respondent-2) before the Superintending Canal Officer (respondent-1) and its dismissal by the latter vide order dated 26.5.2005 (P3) is admitted. It is stated that the Superintending Canal Officer (respondent-1) rightly CWP 15047 of 2005 4 dismissed the appeal and upheld the order dated 5.5.2004 (P2) passed by the Divisional Canal Officer. The petitioner and Karnail Singh (respondent-3), it is submitted, would get proper irrigation through the sanctioned water- course marked as ‘A to D’ in the site plan (P1) and there would be no loss of irrigation. In the reply filed by Karnail Singh and Jagsir Singh (respondents-3 and 4 respectively), it is submitted that the petitioner had not come to the Court with clean hands and he has suppressed material facts from this Court. The impugned order dated 5.5.2004 (P2) and dated 26.5.2005 (P3) passed by the Divisional Canal Officer and Superintending Canal Officer (respondents-2 and 1 respectively) are legal and based on reasoning. These were passed after affording adequate opportunity of hearing to the petitioner. It is submitted that the petitioner is not a small farmer and is not a co-sharer in Khasra Nos.239 and 237 along with respondents-2 and 3, as alleged. It is submitted that total land comprised in Khasra No.237 has already been divided between the co-sharers and the same has been put in 4 separate ‘taks’ (portions) i.e. one comprising in land measuring 3 Kanals 9 Marlas i.e. Khasra No.237/1, now owned by Makhan Singh son of Gajjan Singh; second is land measuring 3 Kanals 9 Marlas i.e. Khasra No.237/2 owned by Gurjant Singh son of Gajjan Singh and the third measuring 3 Kanals 10 Marlas i.e. Khasra No.237/3 owned by the petitioner; besides, 3 Kanals 6 Marlas out of Khasra No.237/4, owned by Sant Singh son of Gajjan Singh. It is denied that the land of the petitioner was barren and had no source of irrigation or that it was wholly dependent on rain. The khal that has been provided by the order dated 5.5.2004 (P2), it is submitted, has been provided after affording adequate opportunity of CWP 15047 of 2005 5 being heard to the petitioner. The order dated 26.5.2005 (P3) passed by the Superintending Canal Officer (respondent-1) has been passed after affording adequate opportunity of hearing to the petitioner and the same has been passed in accordance with law. Learned counsel for the petitioner has submitted that the land of the petitioner is situated at the tail end of the pucca water-course as per the Warbandi and he has only 47 minutes to irrigate his land. Therefore, if the khal at point ‘BC’ in the site plan (P1) is not provided which is the nearest point, then the petitioner’s land which is at the tail end of the pucca khal would take time and time would be wasted for the water to reach his land. Therefore, in view of the constraints of 47 minutes to irrigate his land and the reduced force of water to reach the tail end, besides, the time being consumed, the sanction of khal ‘AD’ would not serve any purpose. Even otherwise, the sanction of khal ‘AD’, it is stated, is not workable since Khasra No.238 shown in green colour, does not belong to Karnail Singh (respondent-3) but belongs to Makhan Singh (respondent-5). Makhan Singh, it is submitted, has neither any interest in the khal nor would he allow any khal to pass through his land in Khasra No.238. In this regard, Makhan Singh, it is submitted, has deposed an affidavit dated 8.9.2005 (P4). It is also submitted that the land of the petitioner and Karnail Singh (respondent-3) i.e. Khasra Nos.237 and 239 are commanded by area falling under outlet 79955/L. Khasra No.116 for which Karnail Singh (respondent- 3) wants water, falls under outlet 3548/L. It is submitted that Khasr No.116 does not even belong to Karnail Singh (respondent-3). Therefore, the sanction of khal ‘AD’ in the site plan (P1) is nothing but putting the CWP 15047 of 2005 6 CWP 15047 of 2005 7 A perusal of the above shows that the petitioner seeks sanction of the water-course ‘BC’ by constructing from the water course ‘YX’ which is from outlet 79955/L of canal minor ‘Deepali’. The petitioner is the owner of land comprised in Khasra No.237 and a part of land in Khasra No.239 which is shown in sky blue colour. He seeks water-course ‘BC’ which is on the Southern end of Khasra no.239 for his land in Khasra No.237. The Canal Authorities, however, have sanctioned water-course at point ‘AD’ which is on the Northern side of Khasra Nos.238 and 237. According to the petitioner, the land in Khasra No.238 is owned by Makhan Singh (respondent-5), who is not interested in the water-course. Therefore, the providing of water-course on the North of Khasra Nos.238 and 237, is wholly unjustified. The respondents-3 and 4, however, claim that the water course ‘AD’ is liable to be sanctioned so that Karnail Singh (respondent-3) can irrigate his land in Khasra No.116. However, according to the petitioner, the land in Khasra No.116 is not owned by Karnail Singh (respondent-3) and it is not shown as to how Karnail Singh (respondent-3) and his son Jagsir Singh (respondent-4) are concerned with the said land. Besides, the land in Khasra No.116 gets commanded from outlet 3548/L Gumti Canal Minor which is entirely different from outlet 79955/L. Even otherwise, the water course ‘AD’ is to go across the passage shown in red colour. Therefore, the orders (P2 and P3) passed by the canal authorities are lacking in material particulars inasmuch as the land from which the water course ‘AD’ has been sanctioned, is not owned by the petitioner nor owned by respondents-3 and 4 but is said to be owned by Makkan Singh who has also deposed an affidavit dated 8.9.2005 (P4) CWP 15047 of 2005 8 stating that he is in possession of land in Khasra No.238 and that Mithu Singh (petitioner) is owner in possession of Khasra No.237. It is submitted that Mithu Singh (petitioner) is not demanding 1-1/2 Karam wide khal on the Northern side of his land in Khasra No.238 and neither was he ready to give his land. It may be noticed that Makhan Singh was not a party to the proceedings before the Canal authorities and nothing has been shown as to how he can claim the land. Besides, the question that the land of the petitioner is at the tail end of the water course ‘AD’ and he gets only 47 minutes per week for irrigating his land, has not been considered. These aspects have not been denied by respondents-1 and 2 and respondents-3 and 4 in their respective replies filed to the petition. According to respondents-3 and 4, the land comprised in Khasra No.237 has been has been divided between the co-sharers and the same is in four ‘taks’. However, nothing has been placed on record with regard to the division and how it affects the water course that is sought for. Keeping in view the facts and circumstances of the case as also the material on record which has not been adverted to by the Canal authorities, it would be just and expedient if the impugned order dated 5.5.2004 (P2) passed by the Divisional Canal Officer (respondent-2) and the order dated 26.5.2005 (P3) passed by the Superintending Canal Officer (respondent-1), are quashed and the mater is remitted to the Divisional Canal Officer, Bathinda (respondent-2) for fresh consideration. Accordingly, the writ petition is allowed and the impugned orders dated 5.5.2004 (P2) passed by the Divisional Canal Officer (respondent-2) and dated 26.5.2005 (P3) passed by the Superintending Canal officer (respondent-1) are quashed and the case is remitted to the CWP 15047 of 2005 9 Divisional Canal Officer (respondent-2) for fresh decision in accordance with law. The Divisional Canal Officer shall consider the matter afresh after giving adequate opportunity to the parties. 19.11.2009. ( S.S.SARON ) ASR Judge