Dismissed

Jagir Singh and Ors. v. Superintending Canal Officer and Ors.

Punjab & Haryana HC13 Oct 2009LPA/312/2009

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed an appeal against a Single Judge's decision upholding the restoration of an old water course. The Court held that the finding was based on evidence and could not be called perverse, thus the court could not re-appreciate evidence under Article 226.

What did the court decide?

The appeal fails and is dismissed as the Single Judge's order did not suffer from legal infirmity.

Jagir Singh and Ors. Vs Superintendin… — Civil Procedure and Limitation | Punjab & Haryana HC (2009)

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LPA No.312 of 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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LPA No. 312 of 2009 Date of decision 13.10.2009

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Jagir Singh and others

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..Appellants

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Versus

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Superintending Canal Officer and others

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... Respondents.

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CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH

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Present: Mr. H.S.Bakshi,Advocate for the appellants Mr. P.K.Jain, Addl. AG Punjab for respondents 1 and 2 Mr. G.P.S.Bal, Advocate for respondent no.3.

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1.To be referred to the Reporter or not ?

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2.Whether the judgement should be reported in the Digest ?

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M.M.KUMAR, J.

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The instant appeal filed under clause X of the Letters Patent is directed against the judgement dated 30.1.2009 passed by the learned Single dismissing the petition filed by the petitioners-appellants bearing CWP No. 8206 of 2007. The Learned Single Judge has held that the water course was initially restored by the Divisional Canal Officer upto point no. 'HDE' which was lateron ordered to be restored upto point 'G'. The learned Single Judge examined the site plan (P.3 and P.4). The only argument raised by the learned counsel for the appellants is that there was no water course earlier in existence covering the area from 'DEFG' and therefore for providing a new water course to the private respondents the scheme under the Northern India Canal and Drainage Act, 1873 (for brevity 'the Act') was required to be framed, objections invited and thereafter the whole procedure contemplated by the Act was required to be gone into. In order to satisfy ourselves, we summoned the original record and have examined the site plan from the

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LPA No.312 of 2009

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original record. There is nothing on the record to suggest that a new water course is sought to be given to the respondents. It was infact the restoration of the old water course. To start with Ziledar had recommended its restoration after inspection of the site which was proved by Khasra Girdawari (revenue record concerning crops) and existence of a culvert. The Divisional Canal Officer had taken a contrary view holding that demolition of any existing water course has not been proved. However, the Superintending Canal Officer has recorded a categorical finding that there was a water course in existence which was demolished. The observations of the Superintending Canal Officer in that regard reads as under:

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“...... It has been seen that Divisional Canal Officer has written in his order dated 7.1.2005 that applicants (appellants) demand for restoration of khal DEF, its part DE is demolished at the site and part of EF and FG do not exist at the spot. From backside of point D to point H khal is demolished. Therefore, SDO has recommended the restoration of khal HDE. From this onwards area of applicant starts and they can irrigate their area and as per report of SDO he passed an order of restoration of demolished khal HD 41 rectangle of kill No.4/1 southern side and DE rectangle 41 of killa no.3 eastern side and part EFG is also proved to be demolished at the site. Therefore, it is written that demand of restoration of this khal is rejected. This order is not based on facts. On the one hand Divisional Canal Officer himself mentioned in his order that point HDEF khal is demolished at site and on the other hand he has rejected the demand of khal EFG. This does not appears to be correct

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LPA No.312 of 2009

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because at the spot from the existence of culvert khal is proved. Thereafter, after amending the order of Divisional Officer, Canal, Majitha, restoration of khal at point HDE and keeping in view good production of food grain, part HDFG of khal ABCHDEFG is restored. Order is passed u/s 30 FF(4) of Northern India Canal and Drainage Act 8 of 1873. Appeal is allowed.”

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Having heard the learned counsel we are of the view that it is pure finding of fact which is based on evidence. By no stretch of imagination it could be regarded as perverse finding. The jurisdiction of this Court under Article 226 of the Constitution do not extend to re-appreciate evidence and record a finding different than the one recorded by the administrative/ quasi judicial authorities. The jurisdiction is limited only to the decision making process. Therefore, we find that the order passed by the learned Single Judge does not suffer from any legal infirmity warranting interference of this Court. Accordingly, the appeal fails and the same is dismissed.

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(M.M.Kumar) Judge

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.10.2009

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(Jaswant Singh) Judge

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okg

Jagir Singh and Ors. v. Superintending Canal Officer and Ors.

Case brief

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Jagir Singh and Ors. v. Superintending Canal Officer and Ors.

Case brief

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