IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.14240 of 2009 Date of decision : 14.9.2009 Subhash Chander ….. Petitioner Versus Superintending Canal Officer and Others ….. Respondents Present: Mr. J.S. Thind, Advocate for the petitioner. **** S.S. SARON, J. This petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner Subhash Chander seeking quashing of the order dated 14.1.2008 (Annexure P2) passed by the Deputy Collector, Rori Water Services Division, Sirsa (respondent No.3) under Section 55 of the Haryana Canal and Drainage Act, 1974 (“Act” – for short); the order dated 7.4.2008 (Annexure P3) passed by the Divisional Canal Officer, Rori Water Services Division, Sirsa (respondent No.2) under Section 55(5) of the Act and the order dated 21.1.2009 (Annexure P4) passed by the Superintending Canal Officer, Bhakra Water Services Circle, Sirsa (respondent No.1) under Section 55(6) of the Act. Naresh Kumar (respondent No.4) filed an application dated 5.11.2007 (Annexure P1) for warabandi before the Deputy Collector Rori Water Services Division, Sirsa (respondent No.3). It was prayed that he was irrigating his land at RD of outlet 16466-L. The area of Naresh Kumar CWP No.14240 of 2009 [2] (respondent No.4) was joint with the other shareholders i.e. Subhash Chander (petitioner), Budh Ram and Puran Ram and their turn of water was also joint. Now, they had separated their area. It was prayed that according to the civil record, their share be separated from the other shareholders. The petitioner, however, raised an objection that his area and that of respondent No.4 was joint and that a partition case was pending between them. Besides, they were irrigating their land in rotation on annual basis. No one had permanent possession over the land. It was, therefore, prayed that the turn be fixed after partition proceedings were over. The Deputy Collector, Rori Water Services Division, Sirsa (respondent No.3) considered the matter in terms of his order dated 14.01.2008 (Annexure P-2). It was observed that Naresh Kumar (respondent No.4) had stated that the turn of Khata No.41 measuring 94 kanals 16 marlas was common. Naresh Kumar (respondent No.4) was owner of half share. An affidavit was submitted regarding the area which was being irrigated by him at the spot. According to that 'bharai' and 'charai' it was prayed be granted. They were irrigating this land for the last forty years. The demand for separate share was opposed by Subhash (petitioner), Budh Ram and Puran Ram. According to the civil records, it was observed that the said three persons i.e. Subhash (petitioner), Budh Ram and Puran Ram were owners of half area and Naresh (respondent No.4) was owner of half area. Hence equal distribution of wari of land measuring 47 kanals 8 marlas was allowed. The taking point of Naresh it was held would remain 68/16 x 67/21 and delivery point 67/21 x 77/2. It was observed that Subhash Chander (petitioner) son of Sukh Ram, Budh Ram and Puran Ram sons of Chandu Ram had jointly stated that their khata was joint and partition case was going on. They were irrigating their CWP No.14240 of 2009 [3] land in rotation every year and at the spot none was having permanent possession. After partition their turn (wari) be fixed. The Patwari had shown the map which was wrong. The decision was given as per above by the Deputy Collector, Rori Water Services, Division Sirsa (respondent No.3). Subhash Chander (petitioner), Budh Ram and Puran Ram filed an appeal before the Divisional Canal Officer, Rori Water Services, Division Sirsa (respondent No.2) under Section 55(2) of the Act. The case came up for hearing on 26.03.2008 in the presence of advocate for the said appellants and also Naresh Kumar (respondent No.4) and the case was adjourned o 02.04.2008. On the said date, Subhash (petitioner) along with his counsel and Naresh Kumar (respondent No.4) were present. It was submitted on behalf of Subhash (petitioner) that the decision dated 14.01.2008 (Annexure P-2) of the Deputy Collector, Rori Water Services, Division Sirsa (respondent No.2) was wrong which was not as per position at the site. The khata of Subhash etc. was joint with Naresh Kumar (respondent No.4) and had not been separated in the Civil record. The case for separation of khata was pending in the court of Collector cum Sub Divisional Officer (Civil) Dabwali and status quo had been ordered on 27.03.2008. The said case was fixed for hearing on 16.04.2008 in the said Court. They used to do joint cultivation. The affidavit as proof that was given by Naresh Kumar (respondent No.4) was wrong. He was not in possession or cultivating any particular killa number. The warabandi could not be amended/changed merely on the basis of affidavit filed. The khaka plan of the warabandi that had been prepared it was stated did not tally with the two different khaka plans of the civil department. Therefore, in view of the above facts the warabandi which had been running before the decision dated 14.01.2008 (Annexure P-2) of the Deputy Collector CWP No.14240 of 2009 [4] (respondent No.3) and still running till date of hearing before the Divisional Commissioner (respondent No.2) be kept intact. Besides, the appeal be accepted and the order dated 14.1.2008 (Annexure P2) of the Deputy Collector (respondent No.3) be set aside. Naresh Kumar (respondent No.4) stated that he had understood the statement of Subhash (petitioner). It was stated that the decision dated 14.01.2008 (Annexure P-2) of the Deputy Collector (respondent No.3) was absolutely right. The khaka plan had rightly been prepared as per their cultivation/possession at the site for the last 30 years. The affidavit had also been given by him as per the above position. The decision (Annexure P2) had also rightly been given on that basis. He (Naresh-respondent No.4) used to give his land to some other persons for cultivation. The appellant (Subhash- petitioner) did not give his share of warabandi at the right place. Due to this, Naresh Kumar (respondent No.4) had got the wari of his share in the land separated. The decision dated 14.01.2008 (Annexure P-2) of the Deputy Collector (respondent No.3) it was stated be maintained and the appeal of Subhash (petitioner) be dismissed. The Divisional Commissioner (respondent No.2) recorded the statements and heard the parties. It was observed that though Naresh Kumar (respondent No.4) had given an affidavit claiming possession over particular killa numbers but the various khakas as described by Subhash (petitioner) in his statement and photocopies thereof produced the minor changes in his possession could be delivered but major portion of land in his possession was surely on the North shown in the khaka plan available in the warabandi case. Moreover, Naresh Kumar (respondent No.4) had demanded separation of the wari of his share in the land and to fix the same earlier to the wari of Subhash CWP No.14240 of 2009 [5] (petitioner). The wari of ½ share had been separated in the decision dated 14.01.2008 (Annexure P-2) of the Deputy Collector (respondent No.3) and co-sharer Naresh Kumar (respondent No.4) and his blood relatives had nowhere been challenged by the appellant Subhash Chander (petitioner). There was no stay of any Court on the separation of wari and the affidavit was supported by the civil record as a proof of Naresh Kumar (respondent No.4) being a co-sharer. Moreover, a warabandi, it was observed, was a temporary arrangement which could be amended at any time by producing the latest civil record regarding share in actual possession. In view of the said circumstances, the Divisional Canal Officer (respondent No.2) in his order dated 10.04.2008 (Annexure P-3) found no patent reasons on the basis of which the decision dated 14.01.2008 (Annexure P-2) of the lower Court could be disturbed. Therefore, the appeal of Subhash (petitioner) was dismissed. Subhash Chander (petitioner) and others filed a revision petition under Section 55(6) of the Act against the order dated 7.4.2008 (Annexure P3) passed by the Divisional Canal Officer (respondent No.2) before the Superintending Canal Officer, Bhakra Water Services Circle, Sirsa (respondent No.1) regarding amendment of warabandi of outlet RD 16466-L Ashakhera Minor. It was contended on behalf of Subhash Chander (petitioner) and others that separation of turn of water (wari) on the basis of affidavit produced by one co-sharer in the joint khata of civil record was invalid. The khata of land and possession/cultivation was joint. All the killa numbers were cultivated on the basis of yearly rotation of exchange amongst the co-sharers. No specific killa numbers were in regular possession of any of the co-sharers. A case of separation of khatas of the land in question was CWP No.14240 of 2009 [6] pending before the civil authorities. Therefore, khatas of warabandi may not be fixed separate till final order of the competent authorities. In response, it was submitted on behalf of Naresh Kumar (respondent No.4) that his possession in the joint khata was separate and he was paying abiana of specific killa numbers shown in the affidavit for the last 40 years. Therefore, the lower courts had rightly fixed separate turn of water of his share in the land. Therefore, the decision dated 14.1.2008 (Annexure P2) and dated 7.4.2008 (Annexure P3) passed by the Deputy Collector (respondent No.3) and Divisional Canal Officer (respondent No.2) respectively were valid. The Superintending Canal Officer (respondent No.1) in terms of his order dated 21.1.2009 (Annexure P4) observed from the record and perusal of the decisions of the Courts below that the contentions of Naresh Kumar (respondent No.4) were convincing. It was observed that he was owner of one half share in the joint khata and wari of one half land share had rightly been allowed in his name. Moreover, it had been placed before the wari of Subhash Chander (petitioner) and others to avoid any possible conflict between parties due to turn of water. The contention of Subhash Chander (petitioner) and others regarding rotational exchange of possession every year did not appear to be practicable as copy of 'Nehri khatairni' and 'Khasra Girdawari' of two different crops for different years showed that possession over various killa numbers shown in the affidavit remained unchanged. Accordingly, the decision dated 7.4.2008 (Annexure P3) of the Divisional Canal Officer (respondent No.2) had rightly been taken. The revision petition was accordingly dismissed. CWP No.14240 of 2009 [7] Learned counsel for the petitioner has contended that the change in wari is liable to be kept pending till the partition case that has been filed is finally disposed of. After giving my thoughtful consideration to the contentions of the learned counsel for the petitioner, it may be noticed that the wari has been changed by the canal authorities on the basis of share holding of the parties and the shareholders are cultivating their respective holdings as is stated in the affidavit filed by Naresh Kumar (respondent No.4). In case after partition there is any change in the possession of the parties in the joint khata, in my view, the same may be taken up afresh before the Canal Authorities for change of wari, if necessary. However, to keep the matter pending only till the partition proceedings are decided, in the facts and circumstances, would be inexpedient as at present the irrigation is being provided as per the holdings of the parties which of course subject to final partition. In the circumstances, there is no merit in the petition and the same is accordingly dismissed. However, the petitioner would be at liberty to apply afresh for change in the turn of his wari after the partition proceedings are finalized if need so arises. (S.S. SARON) JUDGE September 14, 2009 amit