Asa Nand vs Chief Canal Officer

M. M. Punchhi, J. (Oral)

This is a Letters Patent Appeal against the judgment and order of an Hon''ble Single Judge of this Court declining to allow CWP No. 3114 of 1985 preferred by the appellant. The facts giving rise thereto are these :

The second respondent, who is the main contestant, filed an application under Section 17 of the Haryana Canal and Drainage Act, 1974 (hereinafter referred to as `the Act'') before the Divisional Canal Officer for sanctioning a watercourse `AA'' reflected in plan Annexure P4. That strip `AA'' measured barely 25 feet and was part of the land of the appellant. The said officer prepared a draft scheme as envisaged under Section 17, published it and received objection thereto. The objection of the appellant was that the second respondent and other shareholders could well irrigate their lands from RD 375R Jansui distributary and that a watercourse had been kept for irrigation those during consolidation proceedings. That site was `MN'' shown in plan Annexure P4 and ran parallel to the Narwana Branch, which is a canal. As regards the proposed watercourse, it was pleaded that the off shoot at point `A'' was temporary in nature and was meant exclusively for the appellant. In other words, it was not meant for the second respondent. These objections found favour with the Divisional Canal Officer, who rejected the scheme on October 31, 1983, vide order Annexure P1. The appeal of the second respondent was dismissed by the Superintending Canal Officer on May 25, 1984, vide order Annexure P2. However, the Superintending Canal Officer was impressed by the argument of the second respondent that there were burrowpits at site `MN'' running parallel on the Narwana Branch and he, obviously in the interest of irrigation, ordered the respondent to filed up burrowpits at the proposed site of the watercourse along side the Narwana Branch by May 31, 1984, and in case the appellant failed to do so, he was ordered to provide a watercourse through his fields, adjacent to the watercourse left in consolidation. So it was evident from this order that the justice of the cause of respondent No. 2 was alive in the minds of these officers, who were keen to given immediate succour to the second respondent.

The second respondent preferred a revision petition, though styled as an appeal, before the Chief Canal Officer. He took a broader view of the mater. He saw things in the right perspective, because what was termed as a watercourse alongside the Narwana Branch was in fact not a watercourse but a site left for the purpose during consolidation. The watercourse shown in `Dots'' in plan Annexure P4 was already running termporarily and the outlet thereof was at point `N'' from the Narwana Branch. So from this temporary watercourse, an offs hoot (sic) was ordered at point `A'' providing watercourse upto point `A1'', wherefrom the land of the second respondent started. However, in order to meet the objection of the appellant, it was ordered that instead of the watercourse `A'' to `1A'' running on surface, it be run underground by burying a 25 feet long pipe. So the temporary watercourse got a temporary off shoot provided thereform in the interest of irrigation till the matter got finally settled by proper drawer of a scheme for the outlet at RD 375R, Jansui distributary. Aggrieved against the said order, the appellant filed CWP No. 3114 of 1985 in this Court, which on dismissal has given rise to this Letter Patent Appeal.

Two points have been raised by Mr. A.S. Nehra, learned counsel for the appellant. The first point is that the laying of an underground pipe to permit outflow of water from point `A'' to point `A1, is not providing a watercourse, and if that is so neither can section 17 nor section 18 of the Act, be invoked. On that basis, it is urged that the entire proceedings are without jurisdiction. Somewhat similar was the contention rasped by the appellant before the learned Single Judge unsuccessfully. But keeping that apart, there is a basic fallacy in the argument. Subsection (1) of Section 17, being the only part relevant for our purpose, is booted below :

"17. Preparation of draft schemeNothwithstanding anything contained to the contrary in this Act but subject to the rules prescribed, Divisional Canal Officer may, on his own motion or on the application of a shareholder, prepare a draft scheme to provide for all or any of the matters, namely :

(a) The construction, alteration, extension and alignment of any watercourse or realignment of any existing watercourse;

(b) allotment of any new area to a watercourse or an outlet or reallotment of area served by one watercourse to another or from one outlet to another or for exclusion of an area from an outlet or a water course;

(c) construction of a new outlet, shifting or modification of an existing outlet;

Explanation Any change in the design or size or both of an outlet, whose design or size both have been changed in an unauthorised manner for restoring the same to its authorised discharge shall not be deemed to be a modification.

(d) the lining of any watercourse;

(e) the occupation of land for the deposit of soil from watercourse clearances;

(f) any other matter which is necessary for the proper maintenance and distribution of supply of water from a watercourse or an outlet".

Significantly a draft scheme can provide for all or any of the matters enumerated therein. The extension and alignment of any watercourse and the construction of a new outlet can be part of a draft scheme. Besides that, any other matter which is necessary for the proper maintenance and distribution of supply of water from a watercourse or an outlet, can also be part of the draft scheme. Point `A'' can be termed either as an extension point or an outlet point. In either situation, provision can be made with regard thereto, to have the water flow down to point `A1''. The word `watercourse'' has been defined in section 2 (15) of the Act to mean any channel including all its subsidiary works which is supplied with water from a canal but not maintained at the cost of the State Government and is sanctioned under the Act or is in existence under an agreement or by prescription. Sanctioning point apart, watercourse is a channel and a channel can be surface channel as also underground channel. All what is required is that it must be supplied with water from a canal. We are thus clear that there could be a watercourse by using a pipe for flow of canal water. And undoubtedly it is canal water which has been ordered to flow from point `A'' to point `A1'' by means of a pipe. The technical argument that the dotted line is not a canal and outlets are meant to come out from a canal is of no consequence, for section 2(1) which defines the word `canal'' is inclusive in nature and it includes a watercourse. So extendedly, it is the canal which flows in the form of a watercourse on the dotted line and therefrom at point `A'' to `point `A1'' can be siad to be an extended watercourse and in that sence, a canal. But as hinted earlier, since the said watercourse is not maintained at the cost of the State Government, it would technically not be a canal. Nothing meaningful emerges from this argument. At the same time, it is not disputed that what needs be provided finally, could be provided temporarily and the provision of a temporary watercourse on dotted line in plan Annexure P4 is a clear instance in that regard. The use of the temporary watercourse could not be denied to the second respondent just because a 25 feet strip intervened between the said temporary watercourse and the lands of the appellant. So we have no hesitation in rejecting the contention.

The second argument raised is that the appellant was entitled to compensation for the land employed for the purpose under Section 21 of Act. Therein compensation is payable to a shareholder if his land is required for implementation of the scheme. For the present, no final scheme has been prepared. It may well be that this temporary arrangement might have to be abandoned when the length of the pipe is just 25 feet. If there is any special damage to the land of the appellant, he can always resort to his ordinary civil remedies. This by itself would not be a case for relief under Article 226 of the Constitution.

No other point has been raised.

For the foregoing reasons, we find no merit in this appeal and dismiss the same. No costs.