LPA No.469 of 2009 (O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.469 of 2009 (O&M) Date of Order: 31.8.2009 Hardial Singh ...Petitioner Versus Superintending Canal Officer, Ludhiana and another ....Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. J.S. Brar, Advocate for the appellant. Mr. P.K. Jain, Addl.A.G, Punjab for the respondents. 1. To be referred to the Reporter or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR,J This appeal filed under Clause X of the Letters Patent is directed against order dated 27.4.2009 passed by the learned Single Judge in CWP No.6306 of 2009. The learned Single Judge has taken the view that the Superintending Canal Officer has given valid reasons for interfering with the order passed by the Divisional Canal Officer and dismissed the writ petition. Before taking any view in the matter, we have summoned the original record for our examination. Facts in brief which have led to the filing of the instant appeal are that the petitioner-appellant had purchased 5.26 acres of canal rest house Kasam Bhati. He had checked the site plan depicting the actual LPA No.469 of 2009 (O&M) #2# area and other special features of land which was receiving canal irrigation by means of special small outlet since the time of sanctioning Doda Rajbah. The petitioner-appellant's village falls within the Kotkapura assembly constituency. The petitioner-appellant has alleged political rivalry as one of the reasons for taking suo moto action under Section 20 read with Section 30(B)(2) of the Northern India Canal and Drinage Act, 1873 (for brevity “the Act”). It has further been alleged that addition of 5.27 acres area purchased by the petitioner-appellant in the area of outlet No.14172-R Doda Rajbaha vide order dated 22.7.2008 was illegal and unwarranted. The petitioner-appellant filed an appeal against the order of the Divisional Canal Officer against the order dated 22.7.2008, which was dismissed on 8.1.2009. The relevant extract of the order dated 8.1.2009 passed by the Superintending Canal Officer reads as under: “This case was presented on 23.10.2008 at place Ludhiana for hearing. Due to non-appearance of the appellant in court at the time of hearing, the next date for hearing was fixed 11.12.2008 at place Faridkot. Then it was adjourned to 8.1.2009 for hearing at place Faridkot. On 8.1.2009, this case was presented for hearing at place Ludhiana. At the time of hearing appellant came present. He requested at the time of hearing that Canal Department held open auction for the purpose of selling rest house along with land 5.27 acre of village Kasam Bhatti being surplus and two acre land of the rest house was receiving canal irrigation from the small outlet of rest house for the last 50 years and it was agreed to provide it along with land. Appellant is in possession of land, the whole of the building of this rest house. Now Divisional Canal Officer, Faridkot, Canal Division Faridkot vide his decision dated 22.7.2001 has added 5.27 acre area in outlet Burji 14172-R Doda Rajbaha, which is wrong. He has decided this case in the LPA No.469 of 2009 (O&M) #3# absence of appellant, which is against the rules. Therefore, this decision be set aside and appeal be allowed. Appellant heard and the concerned record was perused. After hearing this case, this court found that the scheme after preparation has been sanctioned by Divisional Canal Officer, Faridkot, Canal Division Faridkot by his decision dated 15.1.2008, that is in govt interest. Appellant has purchased this land from Canal Department in open auction. The assertion of appellant that this land had been receiving irrigation for the last 50 years by way of this small outlet is wrong. Because this land does not fall in any of the Chak, therefore, this land has been added in the area of outlet Burji 14172-R Doda Rajbaha and whatever is the water allowance of the whole area is assessed on this land. It was nowhere mentioned at the time of auction not under any law, that the water allowance of this land can be increased, because after the auction this govt land has turned to be a private land. Therefore, the water to this land can be provided by adding it in the adjoining Chak. Water allowance to this land is being provided at the rate of the water allowance of the remaining rightholders. Divisional Canal Officer, Faridkot, Canal Division Faridkot is directed that to get this small outlet dismantled immediately as to which directions had already been issued to them. Therefore, treating the appeal of the appellant invalid is dismissed u/s 30-B(3) of the Canal Act and decision dated 15.1.2008 passed by Divisional Canal Officer, Faridkot, Canal Division Faridkot is upheld. This decision is being pronounced keeping in view the interest of govt. Order pronounced in the presence of the appellant.” Shri J.S. Brar, learned counsel for the petitioner-appellant has argued that appeal filed before the Superintending Canal Officer under Section 30-B of the Act was directed against order dated 22.7.2008 passed by the Divisional Canal Officer. He has further submitted that there was no LPA No.469 of 2009 (O&M) #4# order passed by the Divisional Canal Officer on 15.1.2008, which could have been the subject matter of appeal before the Superintending Canal Officer to which repeated reference has been made by the respondent. Another argument raised against order of the Superintending Canal Officer by Shri Brar, learned counsel for the appellant is that the hearing was fixed for 8.1.2009 at Faridkot whereas it took place at Ludhiana. Mr. Jain, learned Addl.A.G, Punjab has submitted that there are only typographical mistakes. Having heard learned counsel, we are of the view that the learned Single Judge has failed to view the controversy in its correct perspective. The order of the Superintending Canal Officer shows that he has affirmed order of the Divisional Canal Officer, therefore, the view taken by the learned Single Judge that order of the Divisional Canal Officer has been interfered with for valid reason cannot be sustained. We are further of the view that the order of the Superintending Canal Officer dated 8.1.2009 can also not be sustained because he appears to be deciding appeal by treating the same against some other order of the Divisional Canal Officer, Faridkot, which is dated 15.1.2008. In fact, that was not the impugned order before the Superintending Canal Officer. Appeal filed by the appellant was directed against order dated 22.7.2008 alone which was passed by the Divisional Canal Officer so likewise, the place of hearing is also not very clear. Therefore, the order of the Superintending Canal Officer can also not been sustained. For the reasons stated above, order dated 27.4.2009 passed by the learned Single Judge and order dated 8.1.2009 passed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana are hereby set LPA No.469 of 2009 (O&M) #5# aside. The matter is remanded back to the Superintending Canal Officer for hearing the parties afresh and deciding the appeal filed by the petitioner- appellant Hardial Singh, which is directed against order dated 22.7.2008 passed by the Divisional Canal Officer. The petitioner-appellant shall be entitled to his costs, which we quantify at Rs.10,000/-. Parties through their counsel are directed to appear before the Superintending Canal Officer on 14.9.2009. Appeal stands disposed of. ( M.M. KUMAR ) JUDGE August 31, 2009 ( JASWANT SINGH ) manoj JUDGE