Dismissed

Brij Lal v. Superintending Canal Officer and Ors.

Punjab & Haryana HC5 Aug 2009CWP/15384/2007

Case brief

AI extract

What is this about?

This writ petition challenged orders allowing a co-sharer to change his water turn in a joint holding. The Court dismissed the petition, finding the Canal Authorities were justified in relying on an affidavit since no counter-evidence was produced to show prejudice to existing rights.

What did the court decide?

The writ petition was dismissed as it was held to have no merit.

Brij Lal Vs Superintending Canal Officer and Ors. — Landlord and Tenant | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Civil Writ Petition 15384 of 2007

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Date of decision: 5.8.2009

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Brij Lal …Petitioner

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Versus

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Superintending Canal Officer and ors …Respondents

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Present: Mr BS Mittal, Advocate for the petitioner. Mr Sudhir Makkar, Sr DAG Haryana. Mr Rajiv Godara, Advocate for respondent-4.

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S.S. SARON, J.

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Heard counsel for the parties.

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The dispute in the present petition relates to the turn of water from the outlet No.187264/Left Sheranwali minor.

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Krishan Kumar (respondent-4) submitted an affidavit dated 25.5.2007 stating that they were getting their turn from outlet No.178264/Left Sheranwali minor from Khata Nos.40 and 49. Now, the water course has been made pucca and their turn comes at the end in Rectangle 174 Khasras Nos.14, 17 and 20 to 24. Therefore, it was requested that their turn be given in the end and in the name of Lakhi Ram after making necessary cut of the Bharai and Jharai. The Deputy Collector, Mehrana W/S Division, Sirsa proceed with the case under Section 55 of the Canal and Drainage Act 1974 (Act – for short) for amendment of the Warabandi of outlet 187264/Left Sheranwali minor. The case was taken up

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CWP 15384 of 2007

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on the application of Krishan Kumar (respondent-4) and Lakhi Ram of village Kharisurera, District Sirsa and was got investigated from the Ziledar of Sheranwali who recommended the case of the said applicant. On receipt of the case, notice was issued to all concerned for hearing on 25.4.2007 at Sirsa. Krishan Kumar (respondent-4) stated that Khata Nos. 40 to 49 was Mushtarka (joint). His share comes to 158-12 Rakba and the turn of this Rakba be separated and fixed in the last and accordingly Bharai Jharai be given. The Deputy Collector, Mehrana W/S Division, Sirsa considered the case. The ‘Wari’ (turn) of the share of respondent-4 as per civil record and as per affidavit submitted by him was allowed vide order dated 25.5.2007 (P1). His ‘Wari’ (turn) was fixed in the water course KLM with Killa Nos.174//14-17 and 20-24 as these Killa Nos. were in possession of the applicant Krishan Kumar (respondent No.4) as per his affidavit. No one had objected to the demand of respondent-4. The petitioner – Brij Lal, aggrieved against the order dated 25.5.2007 (P1) passed by the Deputy Collector filed an appeal under Section 55(5) of the Act. The Divisional Canal Officer, Mehrana, Water Service Division, Sirsa examined and considered the case. It was observed that the Deputy Collector, Mehrana W/S Division Sirsa had separated the ‘Wari’ (turn) of respondent No.4 on the basis of an affidavit produced by him (Krishan Kumar, respondent-4). It was observed that Brij Lal (petitioner) etc. had not produced any proof that the affidavit produced by respondent-4 was false nor they had opposed the fact that he was not cultivating the land which he had mentioned in the affidavit. From the same, it was evident that Krishan Kumar (respondent-4) was actually cultivating the land which was mentioned in the affidavit. Moreover, respondent-4 was using the ‘Wari’ (turn) of the area mentioned

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CWP 15384 of 2007

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in his affidavit at Khata Nos.40 to 49 of the Warabandi and now he wanted to get his ‘Wari’ (turn) as per location of the land. In view of the above, the plea raised by respondent No.4 was held to be justified and the appeal of the petitioner was rejected vide order dated 6.7.2007 (P2). The petitioner, aggrieved, against the order dated 6.7.2007 (P2) passed by the Divisional Canal Officer, Mehrana W/S Division, Sirsa, filed a revision petition under Section 55(6) of the Act before the Superintending Canal Officer, Bhakhra Water Services Circle, Sirsa. The Superintending Canal Officer considered the matter. It was observed that the petitioner had not produced any proof that the affidavit submitted by respondent-4 was false. It had also been mentioned in the decision of the Divisional Canal Officer that the respondent was using the ‘Wari’ (turn) of the area mentioned in the affidavit at Khata Nos.40-49 of the Warabandi and now he wanted to get the ‘Wari’ (turn) as per location of the land. Accordingly, the revision petition was dismissed vide order dated 8.9.2007 (P3). Aggrieved against the order dated 8.9.2007 (P3) passed by the Superintending Canal Officer, the petitioner has filed the present petition.

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Learned counsel for the petitioner has contended that the land of the petitioner is joint and, therefore, the petitioner cannot get separate ‘Wari for the joint land which is not in his possession. A reference has been made to the site plan (P4) to contend that the water course ‘KLM’ is going downwards to the land which is not in possession of respondent-4. It is also submitted that respondent-4 has no right to change the water course in respect of the joint Khata and he should first get the land partitioned. It is further submitted that in the jamabandi for the year 2000-01 (P5) of village Kharisurera, the land mentioned in Rectangle 174 Kharsa Nos.14, 17 and 20

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CWP 15384 of 2007

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to 24 does not show the existence of any water course. Therefore, the Authorities under the Act have committed an error in granting the turn of water at the point beyond ‘LM’ of the site plan (P4). It is also submitted that the change of Warabandi is not to be ordered merely on the basis of affidavit that is filed by respondent-4 before the Canal Authorities. In this regard a reference is made to the case of Karam Chand v. Superintending Canal Officer 1985 PLJ 64.

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In response, learned counsel for respondent-4 has submitted a copy of the affidavit dated 25.5.2007 and contended that the petitioner has not submitted any document to rebut the said affidavit. It is submitted that though the land is joint, however, the petitioner as a co-sharer of the joint holding, is in cultivating possession of the land comprised in Rectangle 174 Khasra Nos.14, 17 and 20 to 24. The petitioner being at the tail end was getting inadequate water for irrigation at his turn of water. Therefore, he has been given his turn at the point beyond ‘LM’ and by getting his turn there, no prejudice whatsoever is caused to the irrigation rights of the petitioner inasmuch as his turn is before that of respondent-4.

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After giving my thoughtful consideration to the matter, it may be noticed that the grant of turn of water is to be considered and determined by the Canal Authorities in accordance with the provisions of the Act. The Warabandi is to be fixed in accordance with the requirements of all the share-holders. Nothing has been shown by the petitioner as to what prejudice is caused to him in case the respondent-4 is given his turn of water at Rectangle 174 Khasra Nos.14, 17 and 20 to 24 which is at the end of the water course. Affidavit dated 25.5.2007 has been submitted by Krishan Kumar (respondent-4). No doubt, the turn of water is not to be fixed

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CWP 15384 of 2007

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merely on the basis of affidavit. However, it cannot be ruled out of consideration especially when there is nothing to rebut the said affidavit by way of a counter-affidavit and there is nothing to show that the turn of water as fixed for respondent-4, has in any manner prejudiced the rights of the petitioner. It is not even shown by the petitioner nor any averment has been referred to, to show that the rights of irrigation of the petitioner are in any manner affected or that he would be getting less water. Even the question regarding the Bharai Jharai of the petitioner being affected is also not there because the turn of the petitioner is admittedly before that of respondent-4. In the circumstances, the reliance placed on the case of Karam Chand (supra) is not of much consequence. In the said case, it was held that merely on the basis of an affidavit filed by the petitioner, the change of Warabandi is not justified. As regards the contention of the petitioner that respondent No.4 has no right to change the water course in respect of the joint khata, it may be noticed that the contention of respondent No.4 is that though the land is joint but he as co-sharer is in cultivating possession of the land in Rectangle 174, Khasra Nos.14, 17 and 20 to 24. There can be a possibility of a co-owner of a joint holding being in exclusive possession of land out of the joint holding. However, an enquiry into this aspect is not to be gone into in exercise of the supervisory writ jurisdiction of this Court. This is moreso for the reason that the stand of respondent No.4 being in cultivating possession of the land for which ‘Wari’ is sought has not been rebutted or controverted by the petitioner. In any case in respect of joint holdings even the petitioner has a right to seek partition in accordance with law under the Punjab Land Revenue Act. Therefore, the orders (P1 to P3) passed by the Authorities under the Act do not warrant any interference by this Court.

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CWP 15384 of 2007

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In the present case, as already noticed, there is nothing to rebut the affidavit filed by respondent No.4; besides, it is not shown as to how the orders passed by the Canal Authorities are in any manner illegal or perverse which would warrant interference of this Court in exercise of its supervisory jurisdiction.

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Consequently, there is no merit in this writ petition and the

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same is accordingly dismissed.

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5.7.2009. ( S.S.SARON ) ASR JUDGE

Brij Lal v. Superintending Canal Officer and Ors.

Case brief

What is this about?

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Brij Lal v. Superintending Canal Officer and Ors.

Case brief

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