A.D. Koshal, J. - (1.) THE facts leading to this petition under Articles 226 and 227 of the Constitution of India would be better appreciated with reference to a plan which is appended to the petition as Annexure "A". In that plan the L -Shaped khal in dispute is delineated by the letters EXY and runs along the western and southern boundaries of killa No. 12 of rectangle No. 122. Admittedly this khal lies in land belonging to the Petitioner and was demolished by him in the year 1968. Respondent No. 5 who had been using the khal earlier for irrigating his fields, made an application to the Sub -Divisional Officer (Canals), Respondent No. 4, who, after making an investigation, passed an order on the 20th of July, 1968 (Annexure "C" to the petition) holding that Respondent No. 5 had been using the disputed khal for the preceding 15 years and directing that it be restored through police help. The khal was so restored and the Petitioner, therefore, went up in appeal to the Divisional Canal Officer (Respondent No. 3) who, on the 24th of February, 1970, set aside the order of Respondent No. 4 on the following grounds (Annexure ("G" to the petition): (1) The Dhuri Khal (which is shown in the plan in blue and is delineated by letters ABCDEFG) was running through the fields of Respondent No. 5. (2) A number of khals was already running the fields of the Petitioner and thus causing him loss. (3) If there is some raised area with Respondent No. 5, he can irrigate it by "bharai.
(2.) THE order passed by Respondent No. 3, however, was set aside in second appeal on the 8th of April, 1970, by the Superintending Canal Officer, Respondent No. 2, (Annexure "H" to the petition) "in the interest of irrigation and on technical grounds". His reasoning is reproduced here: Both the parties have been heard in detail. The Dhuri Khal ABCDEFG not only irrigates the tak of the Appellants and Respondents but even goes further D/S to irrigate a good lot of area in the Chak of outlet R.D. 29,375/L Wadhni Disty. The country slope being from North to South, this Dhuri Khal cannot irrigate the field Nos. 122/16, 17, 18 and 123/20. So he has to resort to irrigation from the link W/C EXY. It is the order of the Superintending Canal Officer passed in second appeal which is impugned by the Petitioner.
(3.) THIS petition must succeed for the simple reason that the proceedings taken by the canal authorities contravene the express provisions of Section 30 -FF of the Northern India Canal and Drainage Act (hereinafter referred to as the Act) which runs thus: 30FF. (1) If a person demolishes, alters enlarges or obstructs a watercourse or causes any damage thereto, any person affected thereby may apply to the Divisional Canal Officer for directing the restoration of the watercourse to its original condition. (2) On receiving an application under Sub -section (1), the Divisional 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. (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. (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 the Superintending Canal Officer, whose decision on such appeal shall be final. (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.;