Phuman Singh vs Superintending Canal Officer

D.S. Tewatia, J.(Oral)

A portion of watercourse, through which the petitioner had been irrigating his fields for more than 20 years, was demolished by respondent No. 2, Smt. Piaro Devi. The petitioner moved an application under section 30FF of the Northern India Canal and Drainage Act, 1873, (hereinafter referred to as the Act). The Divisional Canal Officer, vide his order Annexure P.2, held : (i) that the petitioner herein had been irrigating his fields for more than 20 years through the demolished watercourse ''AB'' and (ii) that a portion of the said watercourse had been demolished by respondent No. 2 herein. On an appeal against that order at the instance of respondent No. 2, respondent No. 1 set aside the order of the Divisional Canal Officer and provided an alternative watercourse ''ACFE'' through which the petitioner herein, perhaps in the meantime, for irrigating his fields, had made alternative arrangements till the decision, of his application under Section 30FF of the Act.

This order (Annexure P3) has been impugned by the petitioner, Inter alia, on the ground that once it was found that the petitioner had been using the demolished watercourse for irrigating his fields for more than 20 years and that the said watercourse had been demolished by respondent No. 2, the Canal Authorities, on an application made by the aggrieved party, i.e. the petitioner, under section 30FF of the Act, had no option but to order restoration of the demolished watercourse and that, in any case, the alternative watercourse could not be provided without following due procedure envisaged in Section 30A of the Act, if for some reasons the restoration of demolished watercourse becomes impossible.

In the written statement on behalf of respondent No. 1, the assertions that the watercourse had been used by the petitioner for more than 20 years for irrigating his fields and that the said watercourse had been demolished by respondent No. 2, had been admitted but he has taken the stand that the watercourse, which has now been provided, is in the interest of irrigation.

Respondent No. 2, in her written statement had failed to deny the assertion in regard to the use of the watercourse for more than 20 years, while the other assertion that the said watercourse had been demolished by respondent No. 2 has been expressly denied.

The learned counsel for the petitioner referred me to a Division Bench judgment of this Court in Bhai Siri Ram Singh (deceased) v. Kundan Lal, 1975 P.L.R. 273, in support of his assertion that once a case under section 30FF of the Act is made out by the applicant, the Canal Authorities have to proceed under section 30FF of the Act and order restoration of demolished watercourse. The learned counsel drew pointed attention to the following observations of R.S. Narula, C.J., in Bhai Siri Ram Singh''s case (supra) :

"The Divisional Canal Officer is bound to decide according to law the application of the writpetitioner for restoration of the dismantled waterchannel. It is not open to him to avoid the grant or refusal of the application merely by having suo motu resort to proceedings for framing a new scheme for providing an alternative waterchannel."

In my opinion, the Superintending Canal Officer, respondent No. 1, clearly erred in setting aside the order (Annexure P.2) of the Divisional Canal Officer. The Canal Authorities cannot make an excuse of the alternative arrangement made by the aggrieved person for irrigating his land till the decision of his application under section 30FF of the Act, for denying him the right to the use of the demolished watercourse and decline restoration thereof. Respondent No. 1 has not mentioned in his order that the alternative channel that he had recognised as suitable for denying to the petitioner the restoration of the demolished channel, existed prior to the demolition of the watercourse which was sought to be restored.

For the reasons aforementioned, I allow the petition, set aside the impugned order and restore that of the Divisional Canal Officer (Annexure P.2). No order as to costs. Petition accepted.