11.03.2025 BALJIT SING T SINGH AND ANOTHER v. SUPERINTE AND OTHER INTENDING CANAL OFFICER, I.B THERS R, I.B. CIRCLE, PATIALA
Case Details
NJAB AND HARYANA AT N THE HIGH COURT OF PUNJAB IN THE GARH CHANDIGARH M) CWP-7640-2013(O&M) 25 Date of decision : 11.03.2025 BALJIT SING T SINGH AND ANOTHER …Petitioners Versus SUPERINTE AND OTHER INTENDING CANAL OFFICER, I.B THERS R, I.B. CIRCLE, PATIALA …Respondents CORAM: HON’BLE MR. JUSTICE HA E HARSH BUNGER Present :
Legal Reasoning
Mr. G.S. Bains, Advocate vocate for Mr. Vijay Sharma, Advocate for the petitioners. Mr. Nirmaljit Singh Diwana, Sr. na, Sr. D.A.G., Punjab. Mr. Parveen Kumar Garg, Advoc for respondents No.3 to 6. Advocate HARSH BUN BUNGER, J. [ORAL] Prayer in the present writ petition /227 petition, filed under Articles 226/227 of the Const Constitution of India, is for issuanc re of ssuance of a writ in the nature of certiorari for for quashing the order dated 28.02 ssed 28.02.2011 (Annexure P-2) passed by the learn learned Divisional Canal Officer ated fficer, Sangrur and order dated 29.11.2012 (A 012 (Annexure P-4) passed by the S ficer, the Superintending Canal Officer, Patiala. 2. Briefly, respondents No.3 and ation and 4, herein filed an application dated 05.11.2 05.11.2007 (Annexure P-1) before t ficer, fore the Divisional Canal Officer, alleging that g that they were the shareholders o or 8, ers of Outlet No.5884/L minor 8, Rajwaha Sher Sheron, Tehsil Sunam, District Sang on of ct Sangrur and one Jeet Singh son of GURPREET KAUR 2025.03.27 14:24 I attest to the accuracy and authenticity of this order/judgment High Court, Sector-1, Chandigarh 5 Page 1 of 5 Sher Singh alongwith petitioner No.2-Bant Singh, had demolished their watercourse. 2.1 It appears that respondent No.2, vide order dated 28.02.2011 (Annexure P-2) ordered restoration of the watercourse on the eastern boundary of Killa no.69//5-6/1. 2.2 Feeling aggrieved against the afore-said order dated 28.02.2011(Annexure P-2), the petitioners preferred an appeal before the Superintending Canal Officer, which was dismissed vide order dated 29.11.2012 (Annexure P-4). 2.3 In the afore-mentioned circumstances, the present writ petition has been filed by the petitioners before this Court, seeking relief/s, as noticed here-in-above. 3. The primary contention raised on behalf of the petitioners is that while ordering restoration of the watercourse, neither the Divisional Canal Officer nor the Superintending Canal Officer returned any finding as to whether the watercourse in question, was either a sanctioned one or by way of prescription or by way of an agreement. 4. On the other hand, learned counsel appearing for respondents No.3 to 6 has opposed the submissions made on behalf of the learned counsel for the petitioners by submitting that since the watercourse in question, was demolished by the petitioners and others, therefore, the Canal authorities have rightly ordered restoration of the same and no interference was required to be made in the impugned orders. Accordingly, prayer for
Decision
dismissal of the writ petition has been made 5. 6. Heard. Here, it would be apposite to refer to the judgment rendered by the Division Bench of this Court in Jagar Singh vs Superintending Canal GURPREET KAUR 2025.03.27 14:24 I attest to the accuracy and authenticity of this order/judgment High Court, Sector-1, Chandigarh Page 2 of 5 Officer and others, 1972 PLJ 147. The relevant observations there, read as under :- “The view we have taken on the matter finds support from the decision of the Lahore High Court in Hukman v. Emperor, AIR 1921 Lahore 327. This decision has held the field and reference need only bemade to Moola Singh v. Surendra Singh, AIR 1960 Allahabad 656, wherein a large number of decisions taking the same view have been collated. It is true that the Lahore decision dealt with the provisions of Section 70, but broadly speaking the ambit of that section and section 30FF is pare material. For instance, section 70(1) Talks of alteration, enlargement or obstruction whereas section 30FF(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 watercourse 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 above would surely fall outside the ambit of section 70 and so also section 30FF. Section 30FF 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 30FF knew how section 70 had been interpreted and wherever they have used the same language in section 30FF, that must bear the same interpretation and none other. 7. The correctness of the above view can further be demonstrated by referring to an instance where an Page 3 of 5 GURPREET KAUR 2025.03.27 14:24 I attest to the accuracy and authenticity of this order/judgment High Court, Sector-1, Chandigarh unauthorised watercourse is dug by a party and he draws water from the canal in that watercourse. Surely, it cannot be countenanced that such a watercourse would fall within the ambit of section 30FF. If that be so, we do not see where to draw the line, for in that event, all illegal watercourses would fall within the ambit of Section 30FF and there would be no way out to curb that illegality because the illegality would have the sanction of law inasmuch as it can be perpetuated by resort to section 30FF.” 6.1 It is further submitted that the law laid down in Jagar Singh’s case (supra) has been consistently followed by this Court including in the case of Joginder Singh v. The Sub Divisional Canal Officer, Ghaggar Water Services, Sub Division Tohana, 2003(2) RCR (Civil) 768. 7. I have gone through the orders passed by the Canal authorities below and it is observed from a perusal thereof that neither the Divisional Canal Officer nor the Superintending Canal Officer, has returned any positive finding as to whether the watercourse in question, was either a sanctioned one or by way of prescription or by way of an agreement. 8. Therefore, keeping in view the judgments rendered in Jagar Singh’s case (supra) and Joginder Singh’s case (supra), the present petition is partly allowed and order dated 28.02.2011 (Annexure P-2) passed by the learned Divisional Canal Officer, Sangrur and order dated 29.11.2012 (Annexure P-4) passed by the Superintending Canal Officer, Patiala, are set aside. The matter is remitted to the Divisional Canal Officer with a direction to consider and decide the same afresh after returning a clear finding as to whether or not the watercourse regarding which restoration is sought, is a sanctioned one or by way of prescription or by way of agreement. Let the aforesaid exercise be carried out within a period of three months from today. GURPREET KAUR 2025.03.27 14:24 I attest to the accuracy and authenticity of this order/judgment High Court, Sector-1, Chandigarh Page 4 of 5 9. 10. The present petition is disposed of accordingly. All pending application/s, if any, shall also stand closed. March 11, 2025 gurpreet (HARSH BUNGER) JUDGE Whether speaking/reasoned: Whether reportable: Yes/No Yes/No GURPREET KAUR 2025.03.27 14:24 I attest to the accuracy and authenticity of this order/judgment High Court, Sector-1, Chandigarh Page 5 of 5