Allowed

Karam Chand and Anr. v. Superintending Canal Officer and Ors.

Punjab & Haryana HC15 Jul 2016CWP/13800/2015

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing canal authority orders that restored a private, unsanctioned watercourse. The Court held the orders were patently illegal under Section 30-FF as the watercourse lacked legal existence, statutory sanction, or easement, rendering the respondents' decision without jurisdiction.

What did the court decide?

Impugned orders dated 22.3.2014 and 7.5.2015 restoring watercourse ABCD were set aside as patently illegal.

Karam Chand and Anr. Vs Superintending… — Writ and Judicial Review | Punjab & Haryana HC (2016)

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Civil Writ Petition No. 13800 of 2015

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Writ Petition No. 13800 of 2015 Date of Decision: 15.7.2016

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Karam Chand and another

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.....Petitioners

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Vs.

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Superintending Canal Officer, Ferozepur Canal Circle, Canal Colony, Ferozepur and others

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.....Respondents

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CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present : Mr. Sandeep Jasuja, Advocate for the petitioners.

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Mr. Yatinder Sharma, Additional A.G. Punjab.

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Mr. Raman Goklaney, Advocate for respondent No.3.

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Whether reporters of local papers may be allowed to see the judgment? YES/NO

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To be referred to the reporters or not? YES/NO

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Whether the judgment should be reported in the digest? YES/NO

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RAMESHWAR SINGH MALIK J. (ORAL)

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Present writ petition is directed against the order dated 7.5.2015 (Annexure P-7) passed by the Superintending Canal Officer, Ferozepur, whereby he dismissed the appeal of the petitioners upholding the order dated 22.3.2014 (Annexure P-5) passed by the Divisional Canal Officer.

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Brief facts of the case are that respondent No.3-Hukam Chand

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AMIT KUMAR 2016.07.19 16:47 purchased land from Sham Singh etc. Land purchased by respondent No.3 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 13800 of 2015

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has been shown in yellow colour in the site plan Annexure P-1. Land owned by the petitioners has been shown in green colour. Remaining land of the vendor of respondent No.3 has been shown in purple colour. Watercourse AB was a watercourse for the land of the petitioners whereas another watercourse WXYZ was a watercourse for the land Sham Singh etc. As noticed above, Sham Singh etc. were earlier owners of the land now purchased by respondent No.3- Hukam Chand, who is the only contesting respondent, as agreed by learned counsel for the petitioners before this Court.

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After purchase of land from Sham Singh etc., respondent No.3 instead of insisting getting water from watercourse XYZ, allegedly started getting water from watercourse ABCD. Specifically pleaded case of the petitioners right from day one has been that watercourse BCD was their own private kuccha watercourse which they have dug just to irrigate their fields. It is the further case of the petitioners that although they have demolished their private watercourse CD, yet they have committed no error of law because respondent No.3 had no indefeasible right to claim irrigation through the private watercourse of the petitioners. However, ignoring the abovesaid material fact, respondents No.1 and 2 passed the impugned orders directing the restoration of watercourse ABCD.

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Feeling aggrieved against the impugned orders Annexures P-5 and P-7 passed by respondent No.1 and 2, petitioners have approached this Court by way of present writ petition under Articles 226/227 of the Constitution of India.

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Notice of motion was issued and pursuant thereto, reply has

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been filed.

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AMIT KUMAR 2016.07.19 16:47 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 13800 of 2015

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Heard learned counsel for the parties.

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During the course of hearing, when confronted with fact situation clarified in the site plan, as to how respondent No.3 could claim, as a matter of right, irrigation through watercourse ABCD, learned counsel for respondent No.3 had no answer and rightly so, it being a matter of record. Instead of insisting for irrigation from watercourse ABCD, which in the very nature of things, was a private watercourse of the petitioners, respondent No.3 ought to have insisted for irrigation from watercourse WXYZ, because through this very watercourse, his land was being irrigated before the same was purchased by him. Distance between the land of respondent No.3 and point Z is less than one acre because of which there would have been no difficulty for respondent No.3 in getting water for the irrigation from the said watercourse WXYZ. If the petitioners have demolished their private kuchha watercourse which had admittedly never been sanctioned by any canal authorities, they committed no error of law because they have every right to do so.

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A bare combined reading of the impugned orders would show that none of the canal authorities have even referred to this basic issue, while passing the impugned orders. It is nobody's case that watercourse ABCD was a sanctioned watercourse. Further, a bare glance at Annexure P- 1 would show that since the petitioners have dug this watercourse BCD through and through their fields, it was made only for the purpose of irrigating their own fields. If it is assumed, however, only for the sake of argument, that respondent No.3 had irrigated his fields for some time through this watercourse ABCD with the consent of the petitioners, the said consent would not confer any right on respondent No.3 because it was a AMIT KUMAR 2016.07.19 16:47 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 13800 of 2015

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private kuccha watercourse of the petitioners.

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The judgments relied upon by learned counsel for respondent No.3 in Kundan Lal Vs. The Superintending Canal Officer and others, 1971 PLJ 340, Gurnam Singh Vs. Divisional Canal Officer, Faridkot, 2001 (3) RCR (Civil) 781 and Gurmail Singh and another Vs. Superintending Canal Officer and others, 2013 (3) RCR (Civil) 773 have not been found of any help to him for the reason that the same are clearly distinguishable on facts. Similarly, civil court judgment and statements Annexure R-2 to R-4 are of no help to respondent No.3 as there cannot be any estopple against the law. Suit of the petitioners was partly decreed restraining respondent No.3 and his sons from interfering in the possession of petitioners. Injunction qua watercourse ABCD was declined as it had already been ordered to be restored by the orders of canal authorities which have been rightly impugned in the instant writ petition.

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Further, it is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of even one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundara Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.

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Moreover, neither respondent No.2, nor respondent No.1 have considered the material aspect of the matter about the nature of watercourse ABCD in the correct perspective, before passing their respective impugned orders. In the absence of any relevant discussion or finding recorded on the abovesaid basic issue, both the impugned orders have been found patently illegal and the same cannot be sustained. In view of what has beenAMIT KUMAR 2016.07.19 16:47 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 13800 of 2015 5

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discussed hereinabove, watercourse ABCD was neither sanctioned by law nor it was sanctioned by virtue of any agreement between the parties. It was also not a watercourse which might have been prescribed by way of easement.

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The watercourse ABCD does not satisfy the requirement of law contained in Sections 30 FF of the Northern India Canal and Drainage Act, 1973 (' The Canal Act' for short), because of which it could not have been restored. Since learned counsel for respondent No.3 could not substantiate any of his arguments about existence of watercourse ABCD which might be said to be a watercourse by way of prescription and also about the right of respondent No.3 to claim water through said watercourse, the impugned orders restoring said watercourse ABCD have been found suffering from patent illegality and the same cannot upheld for this reason as well.

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The abovesaid view taken by this Court also finds support from the judgment rendered by a Division Bench of this Court in CWP No. 289 of 2003 (Yadvinder Singh Vs. Superintending Canal Officer and others) decided on 26.2.2004 . Reiterating the law laid down by an earlier Division Bench in Jagar Singh Vs. Superintending Canal Officer and others, 1972 PLJ 147 , the Division Bench in Yadvinder Singh's case (supra), held as under:-

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“The dispute between the parties, primarily, relates to invocation of the provisions of Section 30-FF of the Northern India Canal and Drainage Act, 1973 (hereinafter referred to as “the Act”). The Section reads as under:-

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30-FF. – (1) If a person demolishes, alters enlarges or obstructs a watercourse or causes any damage thereto, any AMIT KUMAR 2016.07.19 16:47 person affected thereby may apply to the Divisional Canal I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 13800 of 2015

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Officer for directing the restoration of the watercourse to its original condition.

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(2) On receiving an application under sub-section (1) the Divisional Canal Officer may, after making such enquiry as he may deem fit, require by a notice in writing served on the person found to be responsible for so demolishing altering, enlarging, obstructing or causing damage, to restore at his own cost, the watercourse to its original condition within such period as may be specified in the notice.

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(3) If such person fails, to the satisfaction of the Divisional Canal Officer, to restore the watercourse to its original condition within the period specified in the notice served on him under sub-section (2) the Divisional Canal Officer may cause the watercourse to be restored to its original condition and recover the cost incurred in respect of such restoration from the defaulting person.

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(4) Any person aggrieved by the order of the Divisional Canal Officer, may prefer an appeal within thirty days of the passing of such order to Superintending Canal Officer whose decision on such appeal shall be final.

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(5) Any sum which remains unpaid within a period to be specified for this purpose by the Divisional Canal Officer may be recovered by the Collector from the defaulting person as if it were an arrear of land revenue.

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While interpreting the provisions of this Section, the Division of this Court in Jagar Singh Vs. Superintending Canal Officer and others, 1972, PLJ 147, held as under:-

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“So far as the Northern Indian Canal

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and Drainage Act is concerned, it deals with both authorized and unauthorised watercourse. The expression AMIT KUMAR 2016.07.19 16:47

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authorised watercourse means a watercourse made I attest to the accuracy andauthenticity of this document

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Civil Writ Petition No. 13800 of 2015 7

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available under the provisions of the Act, all others being unauthoised. There is a world of different between watercourse which is being used as a matter of right either under some statute or by agreement or by prescription and a watercourse which has no lawful existence. It may even include a watercourse which passes on another persons lands but the other person does not object to its being used as a watercourse, but a watercourse which has been used on another man's land without his permission will not fall within the ambit of the Act. Section 30-FF contemplates only three types of watercourse, that is:-

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(a) sanctioned by law;

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(b) sanctioned by agreement between the parties; and

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(c ) which have been prescribed by way of easement.

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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 30-FF. It is only when the water is stopped in the case of watercourses of the three types already mentioned that Section 30-FF will come into play. Therefore, a watercourse which does not answer the description of the watercourse set out above will surely fall outside the ambit of Section 30-FF.

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With respect to the reasoning given by the Division Bench, it apparently means that the applicant can invoke the jurisdiction of the appropriate authority. Under AMIT KUMAR 2016.07.19 16:47 I attest to the accuracy and authenticity of this document

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the provisions of this Act, they ought to satisfy two conditions:-

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(a) That the watercourse is in existence, and (b) It is watercourse, which is lawful.

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In other words, it is permissible and is of the nature as specified in Jagar Singh's case (supra).

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There is a serious dispute between the parties whether the watercourse was in existence over the entire portion in question or even partially. The rival contentions of the parties have been noticed by us above. While in the order Annexure P-1 reference has been made to a spot inspection and the findings recorded are referable thereto. On the other hand, in the appellate order the contention of the appellant was noticed as under:-

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“ This case was fixed for hearing at Ludhiana on 12.9.2002. Both the parties were present in the Court. The appellate attending personally in the Court requested to reconsider and rectify the order of Canal Officer, Bathinda which was got passed upon wrong facts produced by the opposite party. As the watercourse had never existed at the site where as pucca watercourse has been made and according to the records of consolidation, the course of water channel was different and was not through his fields. The appellant requested for giving him justice and the course of water channel should be maintained as it was earlier.”

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AMIT KUMAR 2016.07.19 16:47 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 13800 of 2015 9

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The remedy of appeal provided under the Statute is obviously relatable to findings of fact and appreciation of evidence. The orders, which are passed by the Administrative Authorities while exercising quasi judicial or judicial powers vested in them by operation of Statute must be exercised in consonance with the principles of natural justice and in adherence to the basic rule of law. The basic rule of law demands that the authorities must appreciate the contentions, which are raised before them, particularly, when they relate to the revenue records or the official record of the same department, they must pass a speaking order. The substance of a speaking order is reasons for arriving at the conclusion. The reasons so recorded by the authority must provide an index to the mind of the authority to enable the higher courts to deal with the matter and the controversies arising thereupon in rationale manner. Absence of reasons or non-consideration of the contentions raised, more so factual contentions, would normally have the tendency to vitiate the order, we are compelled to make these observations primarily for the reasons that this Court while exercising its powers under Article 226/227 of the Constitution of India cannot exercise the powers of an appellate Court and would hardly sit as Court of appeal to appreciate or re-appreciate the evidence on the record and the consequence flowing therefrom.

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Having said this, we revert back to the AMIT KUMAR 2016.07.19 16:47 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 13800 of 2015

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controversy in the present case. There is no document before us, which could show that the watercourse was ever sanctioned right from the head end of kill No. 1547 of the end of killa No. 1541 passing through killa Nos. 1534, 1535, 1533, 1536 and 1541. While the petitioner before us has vehemently denied the very existence of the watercourse and for this purpose, he relies upon the record of Consolidation wherein a different watercourse has been shown and it was not through the fields aforereferred. On the other hand, partial reliance is placed by the learned counsel for the respondents on the letter Annexure R3/1 to their reply to show that even the partial watercourse was sanctioned and was in existence at the time of filing of the application. In paragraph 12 of the writ petition, the petitioner has made such an averment, which has not been specifically denied by the private respondents in their counter reply as well as by the State, obviously and true to its character is the silent spectator. We must notice with some regrets that by a careful examination of the records, reference to pleadings and correct presentation of the representatives of the State before the competent authority, unnecessary litigation can always be avoided.

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The law laid down by two Division Benches of this Court in Jagar Singh's case (supra) and Yadvinder Singh's case (supra) can be gainfully followed as the same squarely applies to the facts of the present case.

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AMIT KUMAR 2016.07.19 16:47 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 13800 of 2015

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned orders are the orders without jurisdiction, besides being patently illegal and the same cannot be upheld. Consequently, impugned orders dated 22.3.2014 (Annexure P-5) passed by the Divisional Canal Officer, Ferozepur and 7.5.2015 (Annexure P-7) passed by the Superintending Canal Officer, Ferozepur, are hereby set aside.

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With the abovesaid observations made, present writ petition stands allowed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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15.7.2016 Ak Sharma

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AMIT KUMAR 2016.07.19 16:47 I attest to the accuracy and authenticity of this document

Karam Chand and Anr. v. Superintending Canal Officer and Ors.

Case brief

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Karam Chand and Anr. v. Superintending Canal Officer and Ors.

Case brief

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