CWP No.13699 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CWP No.13699 of 1990 Date of decision : 6.5.2011 Kabli Ram ................Petitioner Vs. Chief Canal Officer, Haryana and others .......Respondents CORAM : HON'BLE MR. JUSTICE K.KANNAN Present:- Mr.Bhoop Singh, Advocate, for the petitioner Mr.S.S.Gorakhpuria, DAG, Haryana Mr.Ranjit Singh Saini, Advocate, for respondents No.4 to 7 --- K.KANNAN, J (ORAL) :- 1. The writ petition challenges the order passed by the Chief Canal Officer under the terms of which he reversed the decision given by Superintending Canal Officer, Bhakra Canal Circle. The dispute was for shifting the outlet for the land of the petitioner to an extent 9/9 acres from Outlet No.RD 53590-R to Outlet No.RD 57800-R. The Divisional Canal Officer rejected this plea in view of some objections taken by villagers Amar Singh, Ram Diya and 28 other share holders of the Outlet No.RD 57800-R. The contention was that the draft scheme regarding the transfer from Outlet No.RD 53590-R to Outlet No.RD 57800-R was not correct and that the area ought not to be transferred. The scheme was not approved only on CWP No.13699 of 1990 -2- account of the objections of the major share holders of Outlet No.RD 57800-R. 2. In an appeal filed by the petitioner before the Superintending Canal Officer, there was a reversal of the decision in favour of the petitioner, when he observed that he had carried out a personal inspection and he had seen that good irrigation had been done for the lands irrigated from Outlet No.RD 57800-R while the crops standing in the area under transfer were not receiving as good irrigation facilities. The Superintending Canal Officer further observed that the existing source was lengthy and the proposed source namely the Outlet No.RD 57800-R was very close to the area in question. The third reason why the Superintending Canal Officer upheld the contention of the petitioner was that compared to the field levels of the area under transfer in question which was in the range of 734.10 – 734.65, in Outlet No.RD 57800-R water flow was at level of 738.35 and hence would obtain adequate supply. The petitioner claimed that he would not use the canal water but would have use for the canal only for taking his borewell water to his lands and it would not deplete the supply of water to landowners assigned to Outlet No.RD 57800-R, hence, there would be no prejudice to the existing land owners. The Superintending Canal Officer also took note of the fact that one Lakshmi son of Ram had agreed to give water course through his fields for irrigation of 9/9 acres of the land of the petitioner. CWP No.13699 of 1990 -3- 3. The Canal Officer, whose order is impugned in the writ petition, reversed the findings on two aspects:- one; the level of the land 9/9 acres was ranging from 734.57 to 734.65 against water level of 739.313 for Outlet No.RD 53590-R and therefore, there ought to be a good command of about three feet for the water to flow into his lands. The other ground was Chief Canal Officer is own observation that Outlet No.RD 57800-R was exclusively serving the area of the village in Khanpur and by transfer of 9/9 acres of land of the other village, Dharaudi it would unnecessorily result in village rivalry. 4. The impugned order was stayed by this Court and the order passed by the Superintending Canal Officer (Annexure P-2) was directed to remain operative until further orders on 30.10.1990. An application had been moved by the respondents for vacating this order but the Court refused to accede to the request and had allowed the interim arrangement to continue. 5. Learned counsel for the petitioner argues that this shift, which was approved during the draft scheme, had worked all along without any objection and there ought not be a ground for modifying the same as sought to be done through the impugned order. The learned counsel would also argue that the order was passed by the Superintending Canal Officer after personal inspection and it cannot be merely rejected on the ground taken by the Chief Canal Officer that there would be a rivalry between villagers since it was nobody's CWP No.13699 of 1990 -4- case. It was his further contention that there would be no prejudice caused to the respodents since he was only trying to use the canal for taking his own borewell water that would not deplete water supply to the existing owners. 6. The learned counsel appearing for the respondents would lay emphasis on the observation made by the Chief Canal Officer, which is not challanged in the writ petition, that the levels of the land 9/9 acres are below the water level in the existing Outlet No.RD 53590-R which would mean that it had a good command of about three feet and there could not be any prejudice to the petitioner in any way. The respondent would join issue on the want of prejudice to the respondents as pleaded by the petitioner by contending that it was not even a plea that had been taken by the petitioner in the writ petition and therefore, it cannot be taken up in this writ petition. 7. The limit of interference of administrative or quasi judicial orders in writ petitions is too well known. It shall not be possible for a Court to interfere only because another view is possible. The order complained of must itself contain either a jurisdictional error or an error in legal reasoning that would require to be corrected. A case cannot require favourable consideration only because an interim order had been passed at some point of time. If the case has stood this long, it would again be seen that the respondents had moved an application for vacating the interim order. 8. If the Haryana Canal and Drainage Act provides for CWP No.13699 of 1990 -5- adjudication of rights between several owners of land that claim largesse of the State, it shall be only for protection of public interest and for securing larger good of increased productivity in agriculture. If the Superintending Canal Officer, had approved of a drafts scheme by taking note of the fact that change of provision of outlet from the existing outlet would not cause any prejudice and a personal inspection showed that the cultivation of the property of 9/9 acres for the petitioner had not been fertile which the remaining land which obtained irrigation from RD 57800-R was fertile, then it ought not to be seen as irrelevant consideration. If the Chief Canal Officer was making an intervention and reversing the decision, it was not on a finding that any of the grounds observed by the Superintending, Canal Officer to approve the scheme was found to be erroneous. On the other hand, the Chief Canal Officer was picking up a new ground which was not anybody's case. He observed that it would result village rivalry between the owners of the village in Khanpur and the village in Dharaudi. He also stated that the water level from the existing Outlet No.RD 53590-R was higher than the level of the area of 9/9 acres. These were not the grounds on which the Superintending, Canal Officer approved the scheme. I have already outlined the grounds on which the Superintending, Canal Officer approved the draft scheme. 9. There is perhaps only one area that would require a further examination i.e. about his observation that a person by name CWP No.13699 of 1990 -6- Lakhmi had agreed to give the water course through his fields for irrigation. The respondents have relied on the affidavit of Lakhmi before this Court, where he had resiled from the undertaking already given by him and recorded by the Superintending, Canal Officer. If any alternative arrangement would cast an additional burden on the fields of private individuals like Shri Lakhmi, and he was not acceding to the water course being taken through his land for the benefit of yet another person, then it is relevant for an authority to consider whether an alternative course suggested by the draft scheme is workable or not. This is purely a factual issue which is not possible for me to adjudicate upon. 10. It is not possible to uphold the order of the Chief Canal Officer for the grounds that he has observed in his order for reversing the decision of the Superintending, Canal Officer. I, therefore, set aside and remit the matter to the Divisional, Canal Officer, who will carry out an inspection and ascertain whether the draft scheme which was prepared and which was approved by the Superintending, Canal Officer can be put through without casting any depletion of water resources to the existing land owners, who have the benefit of Outlet No.RD 57800-R. It shall be examined whether the proximity of the petitioner's property in 9/9 acres to the Outlet No. RD 57800- R is such that it will be viable to allow for a change for securing water from Outlet No.RD 57800-R. After all as contended by the petitioner, the petitioner is not asking for diversion of the canal CWP No.13699 of 1990 -7- water from Outlet No.RD 57800-R for the entire extent of his land for 15/15 acres. He has no problem to cultivating his field of 6 acres from Outlet No.RD 53590-R. It should also be seen whether the flow of water from his own borewell is such that it does not cause any additional burden on the existing canal and does not cause any depletion of resources for the existing landowners, who have the benefit of Outlet No.RD 57800-R for irrigating their lands. If these parameters are satisfied that should be taken as relevant for approving the draft scheme. The matter is, therefore, remitted to the Divisional Canal Officer for taking an appropriate decision in the light of the above directions. Till such a decision is taken, the order of the Superintending, Canal Officer, shall continue. This decision shall be taken as expeditiously as possible after the receipt of the records, preferably within a period of 12 weeks. 11. The impugned order is quashed and the writ petition is disposed of as above. (K.KANNAN) JUDGE 6.5.2011 akm