Sant Singh and others vs Deputy Commissioner, Kapurthala and others

S. S. Sodhi, J.

The challenge in this Writ Petition is to the proposed construction of a drain for the discharge of floodwater through the fields of the petitioners.

The facts relevant to this matter are that in pursuance of the policy of the State Government for the resettlement of Exservicemen, the State Government acquired land in village Mohabilipur in Tehsilt Sultanpur Lodhi District Kapurthala for allotment to members of the Exservicemen Cooperative Land Colonisation and Service Society Limited (hereinafter referred to as. the Society). The Society thereafter allotted 10 acres each to its members which included the present petitioners. Certificates for the transfer of the land allotted to such persons were issued by the Society, a copy of such certificate relating to the transfer of land allotted to the petitioner Sant Singh is at Annexure P/1. A reading of this certificate would show that in pursuance of clause 10 of the by laws of the Society, ownership rights in the land allotted to the petitioners were conferred upon them. These rights were, however, granted subject to the conditions mentioned therein and it was provided in such certificates that in case of infringement of any of the conditions or those of the by laws of the Society the owner ship rights in the land allotted shall stand forfeited. Admittedly no such violation has been committed by any of the petitioners in this case. According to the petitioners there was drain in a 4 Karams wide pathway linking the colony with the main road. As the alignment of this drain was not proper, it eroded the pathway. The residents of the colony then collected and passed a resolution on January 12, 1973 that a drain should be dug for the discharge of floodwater, keeping in view the natural flow of water. Four water channels were then made so that water could thereby easily drain out through these channels. In order, however. to harm the petitioners, one Pritam Singh and his companions, who were influential people, prevailed upon the respondents to take a drain through the fields of the petitioners for the discharge of the flood water. The alignments of the proposed drain was demarcated on June 2, 1976. This proposed drain passed through the lands of the petitioners. Without any notice being issued to the petitioners, under orders of the respondents, digging operation on this land commenced on June 4, 1976.

It was the case of the petitioners that the action of the respondents in digging this drain was wholly unauthorised. The drains were being dug without the consent of the petitioners and what is more without any colour of any legal authority. It was, therefore, prayed that a writ be issued to restrain the respondents from digging the drain through the lands of the petitioners.

The contention of Mr. Ajaib Singh Machhaki appearing for the Advocate General, Punjab was that all the residents of the colony were Exservicemen and members of the Society. One of the objects of the Society was to provide facilities for drainage works. By majority vote, the Exservicemen had resolved to dig the drain in question which was meant for draining out floodwater and was thus for the benefit of all the members of the Society. In this situation, it was argued that there was no legal requirement for any consent of the petitioners being obtained or for the acquisition of the land required for the drain, to confer the necessary authority upon the respondents for taking this drain through the fields of the petitioners. This is indeed an untenable stand. When the petitioners have been shown to be owners of land they are legally entitled to remain in peaceful possession thereof. Neither their possession nor their ownership over any part of this land can be interfered with except under authority of law. No such authority could be pointed to by the respondents.

In the circumstances, the petitioners are clearly entitled to the relief claimed. A writ is accordingly issued to restrain the respondents from constructing the drain through the fields of the petitioners except in accordance with law. This writ petition is hereby accepted with costs. Counsel''s fee Rs. 300/.