CWP No.16380 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.16380 of 2009 Date of decision: 16.09.2011 Chamkaur Singh ....Petitioner Versus Superintending Canal Officer, Sirhind Circle, Ludhiana, and another ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. H.S. Dhandi, Advocate, for the petitioner. Mr. Raghbir Chaudhary, Sr. DAG, Punjab. Mr. Sandeep Khunger, Advocate, for respondent No.2. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Petitioner has invoked writ jurisdiction of this Court under Article 226/227 of the Constitution of India assailing order dated 27.8.2009 passed by Superintending Canal Officer, Sirhind Canal Circle, Ludhiana, whereby application moved by respondent No.2 under Section 30-FF of the Northern India Canal and Drainage Act, 1873 (hereinafter called 'the Act') for restoration of the khal (temporary water course) was allowed. Brief facts of the present case are that respondent No.2 has moved an application under Section 30-FF of the Act before the Divisional Canal Officer, Bathinda, for restoration of the khal between khet No.1178-1179 stating that same was running for last 30-35 years and has been demolished by Janak Singh S/o Mukhtiar Singh i.e. father CWP No.16380 of 2009 -2- of the petitioner herein after harvesting wheat crop. Learned Divisional Canal Officer, Bathinda, vide order dated 10.7.2007 has dismissed the application moved by respondent No.2. Feeling aggrieved, respondent No.2 preferred an appeal before the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana, which was allowed vide impugned order dated 27.8.2009. Learned Superintending Canal Officer/Appellate Authority has observed that as per writing given by Gram Panchayat running of the khal for last more than 25-30 years is proved, therefore, same may be restored. I have heard learned counsel for the parties and have perused the record. Learned counsel appearing for the parties, including Mr. Raghbir Chaudhary, learned Senior Deputy Advocate General, Punjab, have fairly stated that khal is not the sanctioned khal, therefore, it will fall within the definition of temporary water course as defined under Section 3(1-A) of the Act. Section 3(1-A) and Section 30-FF of the Act read as under: - “3. Interpretation clause. - In this Act, unless there be something repugnant in the subject or context: - (1) x x x x (1-A) Temporary water course. - “Temporary watercourse” means a watercourse which has been in existence for a continuous period of not less than six months prior to the date of its demolition, alteration, enlargement or obstruction, but which may not be a recognised watercourse as hereinafter defined.” “30-FF. Alteration of a water-course or damage thereto be made good by the person responsible for it. - (1) If a person demolishes, alters, enlarges or obstructs a water-course or a temporary water-course or causes any damage thereto, any person affected thereby may apply to the Divisional Canal Officer for directing the restoration of the water-course or the temporary water- CWP No.16380 of 2009 -3- course to its original condition. (2) On receiving an application under sub-section (1) the Divisional Canal Officer may, after making such enquiry as he may deem fit, require by a notice in writing served on the person found to be responsible for so demolishing, altering, obstructing or causing damage, to restore at his own cost, the water-course or the temporary water- course to its original condition within such period as may be specified in the notice. (3) If such person fails, to the satisfaction of the Divisional Canal Officer, to restore the water-course or temporary water-course to its original condition within the period specified in the notice served on him under sub-section (2) the Divisional Canal Officer may cause the water-course or the temporary water-course to be restored to its original condition and recover the cost incurred in respect of such restoration along with a penalty not exceeding one thousand rupees as may be imposed by the Divisional Canal Officer from the defaulting person. (4) Any person aggrieved by the order of the Divisional Canal Officer, may prefer an appeal within thirty days of the passing of such order to Superintending Canal Officer whose decision on such appeal shall be final. (5) Any sum which remains unpaid within a period to be specified for this purpose by the Divisional Canal Officer may be recovered by the Collector from the defaulting person as if it were an arrear of land revenue.” From the perusal of Section 30-FF of the Act, I have no hesitation to hold that if any water course or a temporary water course is demolished then Divisional Canal Officer can direct the restoration thereof to its original condition. However, to restore the temporary water course, applicant has to plead and prove that water course was in existence for a continuous period of not less than six months prior to the date of its demolition, alteration, enlargement or obstruction. Existence of the water course six months prior to the demolition is sine quo non to invoke Section 3(1-A) read with Section 30-FF of the Act. From the perusal of the orders passed by both the authorities below, I am unable to find out any finding or observation as to when the CWP No.16380 of 2009 -4- alleged khal (temporary water course) was demolished and as to when application for restoration thereof was moved. Both the authorities below also failed to observe that such water course or khal was in existence six months prior to its demolition. Finding of Appellate Authority that existence of khal for last about 25-30 years is proved by the writing given by the Panchayat is totally vague, ambiguous and without any inquiry, therefore, cannot be accepted in the eyes of law. Learned counsel appearing for respondent No.2 states that if matter is remanded, he shall produce before the Divisional Canal Officer the date of the demolition and proof thereof. In view of the discussions made hereinabove, impugned order cannot be sustained in the eye of law. Order impugned as well as order passed by Divisional Canal Officer are set aside. Matter stands remanded to the Divisional Canal Officer. Parties shall appear before the Divisional Canal Officer on 15.11.2011. Divisional Canal Officer shall decide the matter afresh within 90 days thereafter after giving sufficient opportunities to both the parties to lead evidence and to place on record relevant documents. (Alok Singh) Judge September 16, 2011 R.S.