Rameshwar v. Superintendent Canal Officer, BWS-II, Hisar

CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Ashok Goel, Advocate for the petitioner. Mr. D. Khanna, Addl.A.G. Haryana, for respondents no.1 to 3. Mr. Jaswant Jain, Advocate for respondent no.4. .... RAJIVE BHALLA, J (Oral) Prayer in this petition is for quashing of orders dated 15.7.2008,

4.9.2008 and 21.10.2008, passed by Sub Divisional Canal Officer, Tohana at Suniana, the Divisional Canal Officer, Tohana, Tehsil Tohana and the Superintending Canal Officer, BWS-II, Hisar, directing the restoration of a water course, demolished by the petitioner. Counsel for the petitioner submits that the canal officers have ordered restoration of water course, despite the fact that respondent no.4 has failed to prove the existence of a water course at the common line of Rect.No.170//, Khasra Nos. 6 and 15, as alleged. It is submitted that in the absence of any “warabandi” (turn of water) or any record to establish the existence of this water course, canal authorities could not have directed its CWP No.18967 of 2008 2 restoration. It is submitted, by specific reference to the warabandi for the year 1999 (Annexure P-3) that as it does not refer to a turn of water. It is argued that in order to succeed in an application for restoration of a water course, an applicant is required to prove its existence and thereafter its demolition but as the private respondent has failed to prove either of these facts, the orders passed by canal authorities are illegal. Counsel for the private respondent, however, submits that the writ petition should be summarily dismissed as the petitioner is guilty of making false averments and concealing material facts namely the warabandi for the years 2003 and 2007 Annexures R-4/1 and R-4/2, orders passed by civil courts in a suit and an appeal filed, by the petitioner. It is further argued that the warabandis Annexures R-4/1 and R-4/2 clearly establish the allotment of a turn of water and thus, the existence of a water course, the writ petition should be dismissed. I have heard counsel for the parties and perused the impugned orders. The dispute in the present case is whether, canal authorities are justified in directing restoration of a water course between Khasra No.6 and

15. Before restoration of a water course is ordered, the aggrieved party is required to prove the existence and thereafter the demolition of a water course. The existence of a water course is generally proved by the allotment of a turn of water, the site plan and the revenue record. The warabandi for the year 1999, does not assign a “turn of water” between Khasra Nos.6 and 15, but warabandis for the years 2003 and 2007 Annexure R-4/1 and R-4/2, which were concealed by the petitioner while obtaining the stay order dated 6.11.2008, clearly establish the allotment of a CWP No.18967 of 2008 3 turn of water, at this water course. In order to verify the correctness of Annexures R-4/1 and R-4/2, the Sub Divisional Officer, Uklana Water Services, Sub Division, Saniana, Tehsil Tohana, was directed to file an affidavit, with respect to the existence and demolition of the water course. The affidavit filed by Sh.M.K. Khurana is reproduced in extenso :-

1. That a water course of outlet No.66730-R of Pirthala Distributory is running and passes through the middle line of Khasra No.170//6 and 15 for the purpose of irrigation of the holding of share holder namely Bhagirath s/o Pat Ram R/o Pirthala, Tehsil Tohana for the land khasra No.170//7(8-0), 8 (8-0), 9/1(2-16), 14(8-0) situated at village Bosti, Tehsil Tohana, Distt. Fatehabad. The detail Warabandi and site plan is attached herewith. The Warabandi was sanctioned on

21.10.2003 by the order of Deputy Collector Tohana, The above said water course was existing at the time of approval and sanction of the Warabandi dated 21.10.2003.

2. That an application was moved by Bhagirath s/o Pat Ram R/o Pirthala Tehsil Tohana on 6.6.2008 u/s 24 of Canal Act regarding the dismantling of above water course. On that application the above said matter was investigated by the Jiledar Chhabil Dass as per the provisions laid in Haryana Canal & Drainage Act and SDO Sh.Balwant Singh also inspected the site and found the clear 'Nishan” of dismantling of water course in rectangle Killa No.170//6 and 15 on the common line by the Rameshwar-Petitioner. This water course is old one and Warabandi has been sanctioned. There CWP No.18967 of 2008 4 is no other source of irrigation of the holding land Sh.Bhagirath. After inspecting the site the SDO passed the order on dated 15.7.2008 regarding the restoration of water course as per provision of Haryana Canal & Drainage Act in killa No.170/6 and 15, which was illegally dismantled by petitioner – Rameshwar S/o Kanha Ram R/o Parta Tehsil Tohana, Distt. Fatehabad. Thereafter petitioner – Rameshwar filed an appeal before the Divisional Canal Officer regarding the above said matter, which was dismissed on 4.9.2008. The Revision was also filed by the Rameshwar against the order Division Canal Officer before Superintendent Canal Officer Hisar, which was also dismissed on 21.10.2008.” The above affidavit clearly falsifies the assertions putforth by the petitioner and fortifies the findings recorded in the impugned orders about the existence of a water course, on the common line at killa no.170//, Khasra Nos. 6 and 15. The order directing restoration of the water course, therefore, does not call for interference. Despite this conclusion, it would be appropriate to mention that before approaching this court, the petitioner filed a civil suit praying for grant of an injunction. The trial court dismissed the application. Dis-satisfied, the petitioner filed an appeal. The Additional District Judge dismissed the appeal. The petitioner thereafter filed the present petition by concealing the warabandis for the years 2003 and 2007 Annexures R-4/1 and R-4/2 and the orders passed by civil courts. The petitioner's conduct disentitles him to any discretionary relief under Article 226 of the Constitution of India. CWP No.18967 of 2008 5 In view of what has been stated herein above, the writ petition is dismissed.

20.7.2010 GS (RAJIVE BHALLA) JUDGE