IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No. 10984 of 1993 Date of decision: July 12, 2011 Ram Pat .. Petitioner Vs. State of Haryana and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Rajat Panjeta, Advocate for the petitioner. Mr. K.C. Gupta, Sr. DAG, Haryana. None for the respondents No.4 and 5. A.N. Jindal, J The petitioner has invoked the provisions of Articles 226 the Constitution of India for quashing the order dated 26.8.1993 (Annexure P2) restoring the water course “A-B” situated in Rect. No. 127/22/2 and 136/2, which has been freshly dismantled. The petitioner has submitted that initially an application was moved by the respondents No.4 and 5 for restoration of the water course situated in the aforesaid khasra numbers but the Sub Divisional Canals Officer, Bhattu Sub Division Bhattu vide order dated 19.7.1993 had refused the restoration of the water course on the ground that the said water course; did not fall in any of the three categories i.e. sanctioned water course water course achieved vide agreement; or obtained on account of easement of necessity. However, Sub Divisional Canal Officer, Bhattu, while holding that water course was constructed 1- ½ - 2 years prior to the filing of the petition, therefore, the same could not be restored. However, Divisional Canal Officer, Bhattu Division, Fatehabad appears to have considered this water course to be temporary water course, therefore, he restored it for six months. The relevant extract of the order reads as under :- “Under the circumstances mentioned above, I accept the appeal and decision of SDCO, Bhattu is set aside. Restoration of watercourse is considered for six months from the date of restoration of watercourse at site. Decision be conveyed.” Civil Writ Petition No. 10984 of 1993 -2- The main plank of the argument as raised by the learned counsel for the petitioner is that the order is in violation of mandatory provisions of law and the court has not provided sufficient opportunity to the parties before passing such orders. The water course was passing through the land of the petitioner which was destroyed by him and the respondents No.4 and 5 have no right to claim restoration of the same. Arguments heard. Record perused. There is no denying a fact that the water course which was dismantled and was existing at one stage of time was neither sanctioned water course nor it was the result of agreement or provided to the respondents No.4 and 5 on account of easement of necessity. At the same time, it could be observed that even a temporary watercourse constructed by a party could be restored after following the due procedure as provided under Section 24 (2) of The Haryana Canal & Drainage Act, 1974 which reads as under :- “24. Restoration of demolished or altered etc. watercourse – (1) xx xx xx (2) On receiving an application under sub-section (1) Sub- Divisional Canal Officer may after making such enquiry as he may deem fit, require by notice in writing served on the person found to be responsible for so demolishing, altering, enlarging, obstructing or causing damage, to restore at his own cost, the watercourse or temporary watercourse to its original condition within such period not exceeding twenty-one days, as may be specified in the notice : Provided that in case of temporary watercourse its restoration shall not be for a period exceeding one year. (3) to (5) xx xx xx” The intention of the legislature while mentioning temporary watercourse appears to be such watercourse which was carved other than under an agreement, a sanctioned watercourse or watercourse existing on account of ease of necessity. Civil Writ Petition No. 10984 of 1993 -3- On perusal of the order dated 19.7.1993 passed by the Sub Division Canal Officer, appears to have not examined the provisions of Section 24 of The Haryana Canal & Drainage Act, 1974 which provides for restoration of the watercourse temporarily or un-authorisedly constructed by the person claiming restoration for a limited period. In any case, the respondents could not use this watercourse beyond the period of six months as provided by the Divisional Canal Officer from the date of its restoration. Records reveal that due to the stay order in operation, watercourse may not have been reconstructed or used by the respondents. Consequently, this petition is dismissed with the modification in the order 26.8.1993 passed by the respondent No.2 that the respondents No. 4 and 5 would be at liberty to use the watercourse only for six months and not beyond that from the date of its restoration. July 12, 2011 (A.N. Jindal) deepak Judge