LPA No. 638 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 638 of 2010 (O&M) Date of decision: 26.08.2010 Zile Singh son of Shri Ram Saran ….. APPELLANT VERSUS Jaili Ram son of Sh. Sardara and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. R.N.Lohan, Advocate, for the appellant. None for respondent No. 1. *** JASBIR SINGH, J. (ORAL) Despite service, none has appeared on behalf of respondent No. 1 on the last date of hearing and the matter was adjourned for today in the interest of justice. No one has come present on behalf of respondent No. 1 today also. This appeal has been filed against an order passed by the learned Single Judge on 18.03.2010 allowing CWP No.21498 of 2008 filed by respondent No. 1. In this case, restoration of alleged demolished water course is in dispute. Respondent No. 1 filed an application under Section 24 of the LPA No. 638 of 2010 (O&M) 2 Haryana Canal and Drainage Act, 1974 (for short 'the 1974 Act') by stating that a running water course, leading up to his agricultural land was demolished by the appellant. The matter was looked into by the Sub- Divisional Canal Officer and after spot inspection, the officer concerned on 21.04.2008 allowed the application filed by respondent No. 1 by observing as under:- “ I have heard the arguments of the concerned and I have perused the relevant record. I inspected the site on 17.04.2008, during the site inspection, the water course dispute was found demolished at site and no doubt the water course ABCD was found running at site to irrigate the area of the applicant. However, this water course was prepared by the applicant as alternative source and even the water course AE is established to be run at site as per the warabandi record. So, I order to restore the demolished water course in its original condition for the period of one year. The decision be conveyed to all the concerned accordingly.” Appellant went in appeal, which was dismissed. The Appellate Authority/Superintending Canal Officer found, as a matter of fact, that through the alleged water course, to provide water to the land of respondent No. 1, warabandi was fixed and the appeal was dismissed. Appellant then went in second appeal before the Superintending Canal Officer, who, vide order dated 01.09.2008, allowed the appeal and remanded the matter for fresh decision to the Divisional Canal Officer, whereupon the Divisional Canal Officer, after making a some spot inspection, dismissed the application filed by respondent No. 1 vide order LPA No. 638 of 2010 (O&M) 3 dated 22.09.2009 by stating that at the spot, he has failed to find any trace of the demolished water course and further that an alternative water course to provide water to respondent No. 1 is available. At that stage, respondent No. 1 filed the above-said writ petition, which was allowed by the learned Single Judge on 18.03.2010 by observing as under:- “ I have heard counsel for the parties, perused the report submitted by the Ziledar, the orders passed by the Divisional Canal Officer, and the site plan pertaining to outlet No.RD 35730/l Lown Minor. The order passed by the Divisional Canal Officer is perverse and arbitrary as he ignored the report prepared by the Ziledar, the site plan and the allotment of a wari to the petitioner. When considered, collectively these facts establish the existence of the water course AE. The inspection carried out in the year 2008 is irrelevant as the water course was demolished an year before the inspection. The existence of another water course to service the petitioner's land is irrelevant as the prayer is for restoration of a demolished water course and not for sanction of a new or an additional water course. In view of what has been stated hereinabove, the writ petition is allowed, the order dated 20.10.2008, passed by the Divisional Canal Officer, Narwana, is set aside and the matter is remitted to the Divisional Canal Officer, Narwana, to restore the water course AE, in accordance with law.” It is primary contention of the counsel for the appellant that as per the order and rightly so, the Sub-Divisional Canal Officer ordered LPA No. 638 of 2010 (O&M) 4 restoration of water course only for one year and if the order passed by the learned Single Judge is maintained, it would amount to provide permanent water course to respondent No. 1 which will be contrary to the order passed by the Sub-Divisional Canal Officer. After hearing counsel for the appellant, we are not inclined to interfere in the order passed by the learned Single Judge. However, it is made clear that the directions given by the learned Single Judge vide order dated 18.03.2010 shall be complied with by the Divisional Canal Officer, Narwana in the light of the order passed by the Sub-Divisional Canal Officer, Dhamtan on 21.04.2008. In terms of the order mentioned above, let the water course be restored for one year and within that period, if need be, respondent No. 1 may apply for sanction of regular water course. With above-said observation, this appeal stands disposed of. ( JASBIR SINGH ) JUDGE ( AUGUSTINE GEORGE MASIH ) JUDGE August 26, 2010 pj