Punjab-Haryana High Court
Kulwinder Kaur vs Superintending Canal Officer on 28 March, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CWP Nos.10686, 22767, 23884 of 2011,
1911 & 3761 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: March 28, 2012
1. C.W.P. No. 10686 of 2011 (O&M)
Kulwinder Kaur
... Petitioner
Versus
Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur and
others.
... Respondents
2. C.W.P. No. 22767 of 2011
Sukhjinder Kaur and another
... Petitioners
Versus
Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur and
others.
... Respondents
3. C.W.P. No. 23884 of 2011
Amarjit Singh and others
... Petitioners
Versus
Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur and
others.
... Respondents
4. C.W.P.No. 1911 of 2012
Balwant Singh and another
... Petitioners
CWP Nos.10686, 22767, 23884 of 2011,
1911 & 3761 of 2012 2
Versus
Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur and
others.
... Respondents
5. C.W.P. No.3761 of 2012
Balwant Singh and another
... Petitioners
Versus
Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur and
others.
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: Mr. C.M. Munjal, Advocate,
for the petitioner(s)
(in CWP Nos. 10686 & 22767 of 2011)
Mr. B.S.Sidhu, Advocate,
for the petitioner(s)
(In CWP No. 22884 of 2011)
Mr. Amit Arora, Advocate,
for the petitioner(s)
(in CWP Nos. 1911 & 3761 of 2012)
Mr. B.K.Gupta, Sr. DAG, Punjab.
Mr. Harkesh Manuja and
Mr.Jashandeep Singh Sandhu, Advocate,
for respondent Nos. 3 to 6
(In CWP Nos. 10686 & 22767 of 2011)
for respondent Nos. 3 to 5
(in CWP No. 23884 of 2011)
Paramjeet Singh, J.
The above mentioned five Civil Writ Petitions bearing CWP Nos. 10686, 22767, 23884 of 2011, 1911 and 3761 of 2012 have been heard together. All the above mentioned five Civil Writ Petitions CWP Nos.10686, 22767, 23884 of 2011, 1911 & 3761 of 2012 3 are being disposed of by a common judgment. Learned counsel for the petitioner has referred to the facts in CWP No. 10686 of 2011.
The instant writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for quashing of order dated 04.05.2011 (Annexure P/5) passed by respondent No.1 - Superintending Canal Officer, Ferozepur Canal Circle, Ferozepur (hereinafter referred to as the "SCO") and order dated 30.09.2009 (Annexure P/4) passed by respondent No.2 - Divisional Canal Officer, Eastern Division, Ferozepur Canal Circle, Ferozepur (hereinafter referred to as the "DCO") under the provisions of Northern India Canal & Drainage Act, 1873 (hereinafter referred to as the "Act").
Brief facts of the case are that respondent Nos. 3 to 5 and other shareholders of Village Chak Gulam Rasulwala, Chak Balochian (Dhani Prem Singhwala),Kabarwala and Suhelewala / Pakka Kalewala, moved an application to the DCO for extension of Suhelewala Minor from Burji No.10930 to Burji No.45500 on the ground that they are not getting irrigation and the water of tubewell is not fit for irrigating their fields. As a result of which their crop is being affected. The petitioner being shareholder of Suhelewala Minor along with others raised objections before the DCO that they do not want that the land of the private respondents be not irrigated, but it should not be done at the loss of the petitioner, rather, the Government should make arrangement for irrigation of land of the private respondents, so that the petitioner may not suffer. The case of the petitioner is that the Kalewala Minor is already existing and almost touches the land of the private respondents and that can be easily extended. Secondly, at the time of preparation of the scheme, the alignment for the extension of CWP Nos.10686, 22767, 23884 of 2011, 1911 & 3761 of 2012 4 the existing Suhelewala Minor was just straight to reach at the lands of the private respondents, if extension is allowed, but later on due to political influence, the entire alignment of the proposed extension of Suhelewala Minor has been changed. Firstly,it goes towards upstream then there are 3-4 curves and thereafter it is shown to be reached to the land of the private respondents. As a result of this extension plan, the pucca houses of the petitioner will have to be demolished and the land will also be bifurcated in two parts. Such an extension of the Suhelewala Minor is against the rules, whereas, if the Kalewala Minor is extended, then there will be no need for acquisition of the land and already a sufficient length of Kalewala Minor is in existence. The order of the DCO extending the Suhelewala Minor is without any justification. Earlier, the SCO had accepted the appeal of the private respondents and the case was remanded to the DCO on the ground that due to the extension of Suhelewala Minor, scheme is to be reconsidered and alignments are also to be reconsidered keeping in view the interest of irrigation vide order dated 14.07.2009 (Annexure P/3). After the remand, the DCO passed a fresh order dated 30.09.2009 (Annexure P/4) without considering the observations made in the remand order. Against the order of the DCO (Annexure P/4), the petitioner preferred an appeal before the SCO, which was dismissed vide order dated 04.05.2011 (Annexure P/5). Hence, this writ petition.
I have heard learned counsel for the parties and perused the record. Mr. Baljeet Singh Sandhu, the then Superintending Canal Officer (now Chief Engineer) is present in person in Court. CWP Nos.10686, 22767, 23884 of 2011, 1911 & 3761 of 2012 5 Learned counsel for the petitioner has argued that the order of the SCO (Annexure P/5) is not a speaking order and is not based on the facts. The order is not based on the evidence at all and no data has been discussed.
A perusal of the site plan (Annexure P/1), as well as, the comparison between extension of Kalewala and Suhelewala Distributory (Annexure R/1) clearly indicates that the extension length of Kalewala Distributory is 12.86 km; whereas the length of Suhelewala Distributory is 3.33 Km. The proposed extension of Kalewala will be only 7.47 km, whereas Suhelewala will be 10.54 km. Besides this, more land is required to be acquired for the purpose of extension of Suhelewala; whereas the less land is required to be acquired for the extension of Kalewala minor. In Addition to it, the problem of water-logging will also be avoided if the Kalewala minor is extended and the proposal for Suhelewala is dropped.
This contention of the learned counsel for the petitioner has been strongly opposed by the learned counsel for the respondents.
Admittedly, there is no data discussed by the SCO, while passing the impugned order (Annexure P/5). The DCO in the affidavit stated that for Kalewala minor which is already constructed, its length is more than 12.86 km; whereas the length of the other minor is much less i.e. 3.33 km. In these circumstances, water channel already constructed for about 12.86 km. is extended then less land is required be acquired. The extension with respect to Suhelewala minor is much more and about 40 acres of land is required to be acquired for the purpose of construction of water channel. Admittedly, order of CWP Nos.10686, 22767, 23884 of 2011, 1911 & 3761 of 2012 6 the SCO is without discussing any data available on the record. For the first time, they are producing documents in the writ jurisdiction. The order is non-speaking and sketchy as on what basis the extension of Suhelewala minor is being made and why the extension of Kalewala minor should not be carried out is not discussed.
In view of the above facts, the matter is required to be re-examined by the SCO and speaking order by referring to the specific data is required to be passed.
Learned counsel for the petitioner further argued that under Section 30-A of the Act, the extension could not be allowed, rather the provisions of the Punjab Minor Canals Act, 1905 will apply in view of Section 4 of the said Act. Furthermore, the provisions of Section 20, as well as, Section 30-A of the Act will not apply in the present case. In support of this contention, learned counsel for the petitioner has relied upon judgment in the case of Kundan Lal vs. The Divisional Canal Officer, Sirsa and others, reported in 1968 P.L.R. 162, to contend that the provisions of Section 20, as well as, Section 30-A will not apply.
In view of the above, the impugned order passed by the SCO is here set aside and the case is remanded to the SCO. The SCO is directed to justify his order by referring to the available data and as to whether provisions of section 20 and 30-A of the Act will apply. The SCO is further directed to pass a fresh speaking and reasoned order by referring to the contentions raised by the learned counsel for the petitioner, expeditiously, preferably within a period of two months from the date of receipt of certified copy of this order.
The parties through their counsel are directed to appear CWP Nos.10686, 22767, 23884 of 2011, 1911 & 3761 of 2012 7 before the SCO on 30.04.2012 All the aforementioned five writ petitions are disposed of accordingly.
No costs.
March 28, 2012 (Paramjeet Singh) vkd Judge