Avtar Singh vs Superintending Canal Officer

M.M. Punchhi, J.(Oral)

Shorn of all details as stated in this petition under Articles 226 and 227 of the Constitution of India, the petitioners are aggrieved against the proposal of dismantling of a Fall in a canal, which is said to be detrimental to the interests of the petitioners for their lands thereby would be receiving less irrigation. Such action of the Superintending Canal Officer, respondent No. 1, and his subordinate, Divisional Canal Officer, respondent No. 2 has been challenged on the ground that they have not followed the procedure as envisaged under Section 30A of the Northern India Canal and Drainage Act.

The Superintending Canal Officer in his affidavit has countered that the water level in the channel has been raised further by 0.59 feet at the point in question where the Fall was originally situated and further that the channel has been raised by 1.55 feet at the tail of the channel. It has further been averred that the banks of the channel have been raised in order to bring more area under command. It has been highlighted that the provision of Fall under such circumstances has become unnecessary at R.D. 124000. And, since the command will improve by such steps, the question of lands of the petitioners receiving less irrigation did not arise.

Learned counsel for the petitioners has vehemently contended that, in order to dismantle a Fall in a canal the respondents were required to prepare a scheme as envisaged under Section 30A of the aforesaid Act. On the other hand, learned counsel for the respondents says that for dismantling a Fall in a channel which is maintained at the cost of the State Government, the provisions of Section 30A of the said Act do not apply as the same were only concerned with water courses. The contention as raised by the learned counsel for the petitioners has amply been met in a decision rendered in Civil Writ Petition No. 2041 of 1974 (Madan Lal and others v. Chief Engineer, Canals and others, 1985 R.R.R. 274) by me on 7.9.1982. I had observed as follows :

"Thus, the distinguishing feature between a canal and a watercourse is that a canal is maintained at State expense and so may be a watercourse, but a watercourse which is not maintained at the cost of the State Government would be a watercourse to which the provisions of Sections 20, 30A, 30B and 30C of the said Act would apply... .... .... Now here the Fall is to be constructed by the State Government at its cost and in its channel which is a canal for the purposes of the Act. It is nobody''s case that the channel is maintained by private persons, much less the petitioners. The channel belonging to the State Government and structure sought to be raised therein being at its expense, the channel and the contrivance do not fall within the meaning of the term ''watercourse'' as known to the Act. And if that is so, none of the provisions of sections 20, 30A, 30B and 30C of the Act would be applicable, as invoked by the petitioners."

For the view I have taken in Madan Lal''s case (supra) the only contention raised by the learned counsel for the petitioners cannot prevail. It does not make the slightest difference that, in the present case, the Fall is to be dismantled and in Madan Lal''s case (supra) the Fall was to be constructed.

No other points is urged.

Resultantly, this petition fails and is hereby dismissed but without any order as to costs.