Punjab-Haryana High Court
Balmat @ Balwant Singh & Others vs State Of Haryana & Others on 23 February, 2011
Author: Ajai Lamba
Bench: Ajai Lamba
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Writ Petition No.18273 of 2008
Date of Decision: February 23, 2011
Balmat @ Balwant Singh & others
.....PETITIONER(S)
VERSUS
State of Haryana & others
.....RESPONDENT(S)
. . .
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Dr. Surya Parkash, Advocate, for
the petitioners.
Mr. Sukhvinder Singh Nara, Senior
Deputy Advocate General, Haryana,
for respondent Nos.1 to 5.
Mr. A.S. Sullar, Advocate, for
respondent No.6.
. . .
AJAI LAMBA, J (Oral)
1. This civil writ petition has been filed under Article 226/227 of the Constitution of India, praying for issuance of a writ in the nature of certiorari, quashing Order dated 18.8.2008 (Annexure P-9) vide which the Chief Canal Officer, in appellate jurisdiction, has set aside Order dated 29.4.2008 (Annexure P-5) passed CWP No.18273 of 2008 [2] by the Superintendent Canal Officer; and Order dated 20/24.12.2007 (Annexure P-4) passed by the Divisional Canal Officer.
2. Facts in brief are that respondent No.6, Kamaljeet Singh, filed an application under Section 18 of the Haryana Canal & Drainage Act, 1974, for change of water course with the main contention that the land is being divided by virtue of the water course which needs to be re-aligned from the dole of the fields of respondent No.6.
3. The Divisional Canal Officer, Hansi Water Services Division, Hansi, vide Order Annexure P-4 (dated 20/24.12.2007), after taking into account all the facts and circumstances, has returned a finding that water course has existed for 30 years. The water course is being aligned. When lining of the water course is in progress, it cannot be re-aligned. Majority of the share-holders is against the shifting of alignment.
4. In addition, learned counsel for the petitioner has impressed on the Court that a tube-well is installed on the dole of the land of petitioner No.20. Because the water course existed for 30 years, the tube-well was installed and there was no chance of any intrusion on that CWP No.18273 of 2008 [3] land. There is an allegation that when the order was pronounced, respondent No.6 took law into his own hands and demolished the existing water course, and as per his petition for alignment, dug a new water course whereupon FIR No.335 dated 22.12.2007 (Annexure P-3) had to be lodged.
5. Application for restoration of the water course was filed which has been allowed vide Order Annexure P-6 (dated 6.6.2008). In view of the conduct of respondent No.6, police help was taken as would be evident from perusal of Annexure P-7 and P-8.
6. In the meantime, respondent No.6 filed an appeal before the Superintending Canal Officer. The Superintending Canal Officer, vide Order dated 29.4.2008 (Annexure P-5) has also dismissed the appeal on the grounds taken into account by the Divisional Canal Officer. It has been noticed that water course was constructed by Haryana State Minor Irrigation & Tube-well Corporation (HSMITC). The water course had been made pucca by HSMITC.
7. Be that as it may, respondent No.6 filed an appeal before the Chief Canal Officer which has been allowed vide Order dated 18.8.2008 (Annexure P-9).
8. Operative part of Order Annexure CWP No.18273 of 2008 [4] P-9 reads as under:-
"Decision: Both the parties were heard in detail, relevant record has been examined carefully. The perusal of the record reveals that the existing W/C is passing through the field of the appellant dividing his holding, which creates so many problems to irrigation the field property. The demand of the appellant seems to be quite genuine. As such the alignment of the W/C on the common line of Killa 270/8-13, 7-14, 6-15, 271/10-11 and connecting junction point of 271/9-10-11-12 to existing watercourse on common line of Killa No.19-22 in the holding of appellant is hereby sanctioned. Hence, the appeal is accepted and the decision of the superintending Canal Officer, BWS Circle No.1, Hisar is hereby set aside. All concerned be informed accordingly."
9. Learned counsel for respondent No.6 has drawn attention of the Court towards site plan, Annexure R-1 and R-2 to say that fields of the petitioners were being divided by existing arrangement. On re-alignment, the water course is going from the dole and therefore, it is a better arrangement. It has also been stated that after the new water course had been dug by the respondent, there has been no complaint of lack of irrigation to the fields of the petitioners/ other share-holders. Learned counsel has also pointed out that the FIR lodged against the respondent has been sent for cancellation.
10. I have considered the contentions of learned counsel.
11. A perusal of site plan, Annexure P-11 indicates that at many points, the water course divides the fields of the share-holders. The water course is required to be provided CWP No.18273 of 2008 [5] considering irrigation aspect of the matter. The water course admittedly had been existing for more than 30 years and was aligned somewhere around 1979-80. By afflux of time, the alignment had eroded which was being re-done at the stage when respondent No.6 filed the application which has been dismissed by respondent Nos.4 and 3 for reasons noticed hereinabove.
12. The Chief Canal Officer, while allowing the appeal filed by respondent No.6, has not dealt with any of the issues that are relevant to the controversy or which had been taken into account by the Divisional Canal Officer or the Superintending Canal Officer. There is no denial of fact that respondent No.6, indeed, dug the water course in accordance with the application filed before the Divisional Canal Officer although, Divisional Canal Officer rejected the scheme proposed by the respondent.
13. In view of the above, the petition is allowed. Order dated 18.8.2009 (Annexure P-9) passed by the Chief Canal Officer is hereby quashed. Official respondents are directed to ensure that the orders (Annexure P-4 and P-5) passed by the authorities are implemented.
(AJAI LAMBA)
February 23, 2011 JUDGE
avin
CWP No.18273 of 2008 [6]
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?