Punjab-Haryana High Court
Maghar Singh And Another vs Parsin Kaur And Others on 22 December, 2011
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.1763 of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1763 of 1989
Date of Decision: December 22, 2011
Maghar Singh and another .......Appellants
Versus
Parsin Kaur and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.Vishal Aggarwal, Advocate for
Mr.GS Dhillon, Advocate
for the appellants.
Mr.Kabir Sarin, Advocate
for the respondents.
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TEJINDER SINGH DHINDSA, J.
This second appeal by the defendants is directed against the judgment and decree passed by the Additional District Judge, Barnala, dated 26.5.1989, whereby he has accepted the appeal and reversed the judgment of the trial Court dismissing the plaintiffs' suit.
2. The plaintiffs filed a suit for grant of permanent injunction for restraining the defendants from forcibly digging the khal/watercourse in the suit land comprised in khasra Nos.75//9/2(1-2), 75//12(8-0). It was pleaded on behalf of the plaintiffs that they were owners of the suit land measuring 9 kanals 2 marlas. There was no khal in existence through the land of the plaintiffs and no khal passed through the suit land. The RSA No.1763 of 1989 2 defendants wanted to dig a khal forcibly in the suit land belonging to the plaintiffs and consequently, the suit was filed. The defendants filed a written statement taking an objection that the Civil Court had got no jurisdiction and as such, the suit was not maintainable. On merits, the defendants averred that the khal had been in existence in the suit land for a large number of years and that the plaintiffs had demolished the said khal and on an application having been filed before the Sub Divisional Officer (Canals), an order dated 5.1.1984 had been passed under Section 30 of the Northern India Canal and Drainage Act, 1873 (hereinafter to be referred as '1873 Act') for restoration of the khal. It was also pleaded that the plaintiffs had filed an appeal before the Superintending Canal Officer, Sirhind against the order passed by the Sub Divisional Officer (Canals) and such appeal had also been dismissed.
3. Upon the pleadings of the parties, the following issues were framed:
1. Whether there is no khal in existence in khasra No.9/2 and 12 of rectangle No.75? OPP
2. If issue No.1 is proved, whether the plaintiffs are entitled to the injunction prayed for? OPP
3. Whether civil court has got no jurisdiction to try the present case? OPD
4. Whether the suit is not maintainable in the present form?
OPD
5. Relief.
4. The trial Court dismissed the suit holding the same to be barred by virtue of Section 30-G of the 1873 Act and further returned a finding RSA No.1763 of 1989 3 that there was a khal in existence on the suit land on the date of institution of the suit. The plaintiffs filed an appeal and the same has been accepted vide impugned judgment and decree dated 26.5.1989 passed by the Additional District Judge, Barnala. In terms thereof, the plaintiffs have been granted a decree of permanent injunction against the defendants restraining them from using or digging the watercourse in the suit land.
5. Respective counsel for the parties have been heard at length and the record has been perused.
6. Learned counsel appearing for the defendant-appellants has vehemently argued that the jurisdiction of the Civil Court was barred in view of Section 30-G of the 1873 Act and as such, the suit itself was not maintainable. Learned counsel has further contended that the khal in question in the suit land had been in existence for the last 40 years and as such, the plaintiff-respondents had no right to demolish the same. Reliance has been placed on a Division Bench judgment passed by this Court in Daya Singh v. Superintending Canal Officer, Amritsar, 2001(3) RCR (Civil) 534.
7. It would be necessary to refer to certain provisions of 1873 Act for the adjudication of the controversy raised in the instant second appeal. Section 3, sub-clause (2) defines a watercourse. Section 30-FF regulates a procedure upon a person demolishing, altering or obstructing a watercourse or causing any damage thereto and the remedy open for a person affected thereby. Section 30-G of 1873 Act would also be relevant. The aforesaid provisions read as under:
"3(2). "watercourse" means any channel which is supplied with water from a canal, but which is not maintained at the cost RSA No.1763 of 1989 4 of the [State Government] and all subsidiary works belonging to any such channel.
30-FF. (1) If a person demolishes, alters, enlarges or obstructs a 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 to its original condition. (2) On receiving an application under sub-section (1), the Divisional Canal Officer may, after making such inquiry as he may deem fit, require by a 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 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 watercourse 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 watercourse to be restored to its original condition and recover the cost incurred in respect of such restoration 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 the 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 RSA No.1763 of 1989 5 be recovered by the Collector from the defaulting person as if it were an arrears of land revenue.
In Section 30-FF -
for the words "a watercourse" and "the watercourse" wherever occurring, the words "a water course or a temporary watercourse" and "the watercourse or the temporary watercourse" respectively shall be substituted; in sub-section (3), for the words "restoration", the words "restoration along with a penalty not exceeding one thousand rupees as may be imposed by the Divisional Canal Officer"
shall be substituted--Punj. Act, 9 of 1987, S.4 (16-4-1987)."
30-G. Notwithstanding anything contained in this Act or any other law for the time being in force, no Civil Court shall have jurisdiction to entertain or decide any question relating to matters falling under Sections 30-A to 30 FF-Pun. Acts 21 of 1958, section 23 (10.7.1958); 21 of 1963, section 3,23 of 1965 sections 9 to 14; 35 of 1973; Haryana Act 4 of 1971, section 2 (2.3.1971)."
8. The aforementioned provisions came up for consideration before a Division Bench of this Court in the case of Jagar Singh v. Superintending Canal Officer and others, 1972 PLJ 147. It was clearly held therein that 1873 Act deals with both, authorized and unauthorized watercourse. The expression 'authorized watercourse' means a watercourse made available under the provisions of the Act and all other being unauthorized. It was further held that Section 30-F contemplates only three types of watercourses i.e. (i) sanctioned by law (ii) sanctioned by RSA No.1763 of 1989 6 agreement between the parties, and (iii) which have been prescribed by way of easement.
9. The Division Bench while considering the provisions of the 1873 Act pertaining to authorized/unauthorized watercourse held as under:
"It is in the wake of these statutory provisions that the question has to be examined namely, whether the provisions of Section 30-FF embrace an unauthorised watercourse? So far as the Act is concerned it deals with both authorised and unauthorised watercourse. We are using the expression 'authorised watercourse' to mean a watercourse made available under the provisions of the Act all others being unauthorised. But there is a world of difference between a watercourse which is being used as a matter of right either under some statute or by agreement or by prescription. But it cannot include a watercourse which has no lawful existence. It may even include a watercourse which passes on another person's lands but the other person does not object to its being used as a watercourse, but, in our opinion, a watercourse which has been used on another man's land without his permission will not fall within the ambit of the Act. If the decision of Koshal J. conveys that the Act only deals with watercourse which are authorised by it or which are unauthorised by the Act but otherwise authorised, as set out above, no exception can be taken to it. But if the decision goes further and embraces watercourses on another man's land without his permission, surely the decision cannot be supported. We say so with RSA No.1763 of 1989 7 utmost respect to the learned Judge. No law contemplates the continuance of an illegal act or gives validity to an illegal act because it has been repeatedly performed. The view we have taken of the matter finds support from the decision of the Lahore High Court in Hukman v. Emperor, AIR 1921 Lah.327. This decision has held the field and reference need only be made to Moola Singh v. Surendra Singh, AIR 1960 All. 656, wherein a large number of decisions taking the same view have been collected. It is true that the Lahore decision dealt with the provisions of section 70, but broadly speaking, the ambit of that section and section 30-FF is pari materia. For instance, Section 70(1) talks of alteration, enlargement or obstruction whereas Section 30-FF(1) also talks of alteration, enlargement and obstruction. Section 70 fell for interpretation as early as 1921 in the Lahore High Court and it was ruled that it only contemplates three types of watercourses, that is -
(a) sanctioned by law;
(b) sanctioned by agreement between the parties, and
(c) which have been prescribed by way of easement.
It was also held that if any person takes water through another man's land, the other man has the right to stop the flow of water through his land thereby committing no offence within the meaning of section 70. It is only when water is stopped in the case of watercourses of the three types already mentioned, that section 70 will come into play. Therefore, a watercourse which does not answer the description of the watercourse set out RSA No.1763 of 1989 8 above would surely fall outside the ambit of Section 70 and so also section 30-FF. Section 30-FF has been brought on the statute book long after section 70 was judicially interpreted and we must proceed on the basis that the farmers of section 30-FF knew how section 70 had been interpreted and wherever they have used the same language in section 30-FF, that must bear the same interpretation and none other."
10. There is no authorized watercourse in the suit land and as such, the ratio of judgment in Jagar Singh's case (supra) is fully applicable to the case in hand. It may further be stated that even if at a point of time there was a watercourse in existence in the suit land wherefrom the defendant- appellants had taken water, it would not mean that they thereby acquired a vested right to irrigate their land through such alleged watercourse. The reliance placed by the learned counsel for the defendant-appellants upon the Division Bench judgment in Daya Singh's case (supra) is also mis- placed. The facts of Daya Singh's case were entirely different inasmuch as receipts regarding payment of revenue for supply of water over a period of three decades had been produced. Furthermore, the plea of a watercourse which was presumably authorized had not been controverted by the opposite party. No such situation arises in the facts of the present case.
11. As regards the plea of jurisdiction of the Civil Court being barred, it is held that the Civil Court will certainly have jurisdiction to prevent or threatened wrong. In such a situation, the civil suit is not barred by Section 30-G of the 1873 Act. There is nothing in the scheme of the Act and, in specific, in Section 30-A to Section 30-FF of the 1873 Act which may suggest that a party has any remedy where he is trying to prevent a RSA No.1763 of 1989 9 threatened wrong. The Canal Authorities can remedy a wrong that is already done. As no effective remedy appears to have been provided in the 1873 Act for the prevention of a threatened wrong, there was no bar to the plaintiff-respondents in instituting the suit for permanent injunction so as to enforce a preventive remedy.
12. No question of law much less a substantial question of law arises in the present second appeal.
13. In view of the discussion held above, the present second appeal must fail and is, accordingly, dismissed.
14. No order as to costs.
( TEJINDER SINGH DHINDSA ) JUDGE December 22, 2011 SRM Note: Whether referred to the Reporter? Yes/No