IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.4620 of 2007 Date of Decision: August 06, 2009 Malkiat Singh ...Petitioner VERSUS The Superintending Canal Officer, Sirhind Canal Circle, Ludhiana and others. ...Respondents Present: Mr. B.S. Sidhu, Advocate for the petitioner. Mr. H.S. Gill, Dy. Advocate General, Punjab Mr. Inderjit Sharma, Advocate for respondent No.4 *** S.S. SARON, J. The writ petition has been filed by the petitioner seeking quashing of the order dated 16.01.2007 (Annexure P-4), passed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1), whereby the order dated 01.06.2006 (Annexure P-3) passed by the Divisional Canal Officer, Bathinda, (respondent No.2) has been set aside and the appeal of Gurjit Singh (respondent No.4) has been allowed. The case of the petitioner is that Gurjit Singh (respondent No.4) is the owner of land depicted in brown colour in CWP No.4620 of 2007 [2] the site plan (Annexure P-1). He was getting no cannal irrigation for his land as there was no watercourse connecting his land and his turn of water was without an outlet (nakka) and without a watercourse. The land of the petitioner has been shown in yellow colour in the said site plan. Gurjit Singh (respondent No.4), therefore, submitted an application to the Deputy Collector, Bathinda, Canal Division Bathinda (respondent No.3), stating that since his turn of canal water was fixed without ‘nakka’ and without a watercourse and that he had made arrangement for watercourse, his turn of water may be fixed and ‘nikal’ may be fixed for his turn. The Deputy Collector, Bathinda (respondent No.3) after following the necessary procedure and hearing the parties vide order dated 14.02.2006 (Annexure P-2) fixed the turn of water of Gurjit Singh (respondent No.4) before that of the petitioner and kept the ‘nikal’ in the turn of the petitioner keeping in view the report made by the Ziledar and particularly the fact that the area of the petitioner was situated at the tail of the watercourse. Gurjit Singh (respondent No.4) aggrieved by the said order of the Deputy Collector, Bathinda, (respondent No.3) filed an appeal before the Divisional Canal Officer, Bathinda Canal Division, Bathinda, (respondent No.2), who dismissed the same vide order dated 01.06.2006 (Annexure P-3) on the principle of 'first come first serve'. It was observed by the Divisional Canal Officer, Bathinda (respondent No.2) that the land of Gurjit Singh (respondent No.4) was situated before the land of the petitioner in the watercourse. Therefore, Gurjit Singh (respondent No.4) was not entitled to ‘nikal’ on the basis of 'first come first serve. CWP No.4620 of 2007 [3] Accordingly, the appeal of Gurjit Singh (respondent No.4) was dismissed. Being aggrieved of the said order, Gurjit Singh (respondent No.4) filed an appeal before the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1). The Superintending Canal Officer (respondent No.1) in his impugned order dated 16.1.2007 (Annexure P4) observed that the order dated 01.06.2006(Annexure P-3) passed by the Divisional Canal Officer, Bathinda (respondent No.2) was not passed according to the situation at the spot. The land of Gurjit Singh (respondent No.4), it was observed, was situated after the land of the petitioner. It was, therefore, held that Gurjit Singh (respondent No.4) was entitled to ‘nikal’ and the order of Divisional Canal Officer, Bathinda (respondent No.2) providing ‘nikal’ to the petitioner was held to be not correct. Accordingly, the appeal of Gurjit Singh (respondent No.4) was allowed and it was observed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1) that the turn of Gurjit Singh (respondent No.4) be fixed after the turn of the petitioner and he be given ‘nikal’. It was also observed that there was no loss to the petitioner with the said decision. Aggrieved against the said order of the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1), the petitioner has filed the present petition. The respondent No.4 has filed amended written statement, which has been taken on record. It is submitted by Gurjit Singh (respondent No.4) that the petition is liable to be dismissed as the petitioner has not approached this Court with clean hands. It is submitted that the petitioner has less than 7 CWP No.4620 of 2007 [4] kanals (sic. Acres) of land at the spot and he has only 53 kanals 18 marlas of land in Khasra Nos.99 and 100 which is required to be irrigated through the canal water. Respondent No.4, it is submitted, has ten and a half kanals (sic. acres) of land in Khasra Nos.100 and 94. A reference has been made to the Jamabandi for the year 2003-04 (Annexure R-1) and the akshlatha (Annexure R- 2). It is submitted that the petitioner with a malafide intention to defeat the rights of respondent No.4 has illegally also included the land of his brother Sukhmander Singh son of Gurdial Singh, who is living separately and has a separate portion of land, besides, has a separate ‘nikal’ for irrigation of his land. It is further submitted that the petitioner has wrongly mentioned that the land of the petitioner is at the tail end of the khal, whereas the land of respondent No.4 is at the tail end and the khal (watercourse) finishes with the land of respondent No.4. The watercourse, it is submitted, is running from West to East and the land of respondent No.4 is at the tail end. It is submitted that even the site plan (Annexure P-1) attached by the petitioner itself shows that the land of respondent No.4 is at the tail end. However, since the petitioner has managed a false report from the Ziledar, the order passed in favour of the petitioner was corrected by the impugned order dated 16.01.2007 (Annexure P-4) passed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1) and the ‘nikal’ has rightly been fixed. It is submitted that the complete land in the ownership of respondent No.4 has not been shown. It is not shown by the petitioner that respondent No.4 is also owner and in possession of land CWP No.4620 of 2007 [5] comprised in Khasra Nos.100/3, 100/8 and 100/13/1. It is further submitted that the petitioner has managed a false report from the Ziledar who had wrongly shown that the land of the petitioner is at the tail end, whereas the land of respondent No.4 is at the tail end, besides it is much more than that of the petitioner. Therefore, it is submitted that the appeal of respondent No.4 against the order dated 01.06.2006 (Annexure P-3) passed by the Divisional Canal Officer, Bathinda Canal Division, Bathinda (respondent No.2) was rightly allowed by the impugned order dated 16.01.2007 (Annexure P-4), passed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1) Learned counsel appearing for the petitioner has contended that the controversy in the case revolves around the fixation of ‘warabandi’ (fixation of turn for irrigation) which is to be fixed as per Appendix 'E' of the Punjab Irrigation Manual. It is submitted that the application for fixation of turn/allotment of ‘nikal’ submitted by Gurjit Singh (respondent No.4) was sent to the concerned Ziledar, who after making a necessary enquiry at the spot reported that the land of Gurjit Singh (respondent No.4) was situated before that of the petitioner on the watercourse. He also reported that the area of Gurjit Singh (respondent No.4) was less than that of the petitioner. On the said account, the petitioner was found entitled to ‘nikal’. It was also observed by the Ziledar in his report that if the turn of Gurjit Singh (respondent No.4) was fixed after the petitioner his area would not consume the entire ‘nikal’. The turn of the petitioner is about one hour 30 minutes, whereas that of Gurjit Singh (respondent No.4) is much less. It is submitted CWP No.4620 of 2007 [6] that in case the ‘nikal’ is fixed in the turn of Gurjit Singh (respondent No.4), the time of ‘nikal’ would have to be bifurcated into two parts which would not be in the interest of irrigation. It is also submitted that a perusal of the order dated 16.01.2007 (Annexure P/4) shows that the arguments of both the parties were heard on 04.01.2007 at Bathinda and that thereafter the case was again considered on 16.01.2007 at Ludhiana. There was no notice regarding the case being fixed on 16.01.2007 at Ludhiana. It is submitted that the area of the petitioner is at the tail end. In response learned counsel for respondent No.4 has submitted that the area of respondent No.4 is at the tail end, which is evident from the site plan (Annexure P-1) submitted by the petitioner as the watercourse is from West to East and, therefore, respondent No.4 is entitled to the ‘nikal’. Besides it is submitted that a wrong report was procured by the petitioner from the Ziledar, which has rightly been ignored by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1). It is also submitted that the land owned by the petitioner is far less than that owned by respondent No.4. However, the petitioner is including the land of his brother Sukhmander Singh in his land, whereas it is separate from the land of the petitioner and has a separate ‘nikal’. Therefore, it is submitted that the order passed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1) on 16.01.2007 (Annexure P-4) warrants no interference by this Court. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties and CWP No.4620 of 2007 [7] with their assistance gone through the records of the case. The case involves disputed questions of fact as to whether the land of the petitioner or that of respondent No.4 is at the tail end. It is not in dispute that the Ziledar concerned has given his report to the effect that the land of the petitioner is at the tail end. The Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1) in his order dated 16.01.2007(Annexure P-4) has not considered the report of the Ziledar. It has merely been observed that the land of respondent No.4 is situated after that of petitioner and that therefore, respondent No.4 was entitled to ‘nikal’. It is further observed that providing of ‘nikal’ by the Divisional Canal Officer, Bathinda (respondent No.2) to the petitioner was not correct. However, there is nothing to show as to how and on what ground the report of the Ziledar concerned was incorrect or was liable to be discarded. Therefore, an important relevant material i.e. the report of the Ziledar concerned, which was liable to be taken into consideration in the decision making process has not been considered. This indeed vitiates the impugned order dated 16.01.2007 (Annexure P-4). This Court in exercise of its supervisory writ jurisdiction under Articles 226/227 of the Constitution of India is not to go into and determine disputed questions of facts as to which of the parties has its land at the tail end of the watercourse. The mode for fixing of turns has been laid down in Appendix 'E' of the Punjab Irrigation Manual in the following manner: “Order of turns:- The order of turns should be definitely laid CWP No.4620 of 2007 [8] down in accordance with one of the following systems:- a) Down the watercourse, i.e. in order of distance of the off-take from the outlet. In this case, the order proceeds down the main watercourse to the head of the first branch; then down the branch before continuing down the main watercourse. Similarly as regards sub-branches. b) Round the watercourse i.e. down one bank and up the other, branches being treated as in (a) above. The later system has the advantage that it distributes lead and nikal more evenly, but the former system is generally preferable as holdings usually lie on both sides of a watercourse. Where two or more holdings are served by off-takes close together and lead or nikal is of importance, the order of turns should alternate between the holdings.” CWP No.4620 of 2007 [9] The above order of turns is to be followed for the fixation of the ‘warabandi’. However, this exercise is to be carried out by the Irrigation Authorities on the basis of actual possession existing at the spot. According to the site plan (Annexure P-1) it cannot be determined as to which of the land is at the tail end and this exercise is, therefore, required to be carried out by the Irrigation Authorities. Even the holdings of land that a particular party may have is to be determined on the basis of revenue records or other documents for the purpose of fixation of the ‘nikal’. In the circumstances the impugned order dated 16.01.2007(Annexure P-4) being bereft of any reasons and having failed to consider the relevant materials, which were liable to be taken into consideration in the decision making process is unsustainable in law. In the facts and circumstances, the same is liable to be set aside and fresh consideration is liable to be carried out by the Superintending Canal Officer (respondent No.1). Accordingly, the writ petition is allowed and the order dated 16.01.2007 (Annexure P-4) passed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana (respondent No.1), is quashed and the matter is remitted to him (Superintending Canal Officer) for re-consideration of the appeal and till such re-consideration, the parties shall maintain status quo as it is. (S.S. SARON) August 06, 2009 JUDGE Vcgarg/amit