- (1.) This Letters Patent Appeal has been directed against the order dated 3.10.2011, passed by the learned Single Judge, whereby the writ petition (Civil Writ Petition No. 9598 of 2010) filed by respondent No. 3 Jasmail Singh, challenging the order dated 15.9.2009 (Annexure P-1) passed by the Divisional Canal Officer, Faridkot Canal Division, Faridkot, ordering for restoration of the water course; as well as the order 25.3.2010 (Annexure P-2) passed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana, affirming the said order, was allowed. After setting aside both the aforesaid orders of the canal authorities, the case was remitted to the Divisional Canal Officer for deciding the matter afresh. In this case, the appellants moved an application under Section 30-FF of the Northern India Canal & Drainage Act, 1873 (hereinafter referred to as 'the Act') before the Divisional Canal Officer, alleging therein that respondent No. 3 along with his sons had demolished the water course ABC, which was running at the spot, resulting into stopping of irrigation facility to the fields of the appellants. It was prayed that the said water course be restored. The Divisional Canal Officer sought report from the Sub Divisional Officer, who after enquiry submitted the report that a running pucca water course was existing, which was illegally demolished by respondent No. 3. It was recommended that the demolished water course be restored. After receiving the report, the Divisional Canal Officer issued notice to the parties, and after providing opportunity of hearing to them, allowed the application of the appellants and ordered for restoration of the demolished water course, after coming to the conclusion that a pucca water course was in existence prior to its demolition, which was in running condition, and the same was found to be demolished. The Superintending Canal Officer, affirmed the order of the Divisional Canal Officer, while observing as under:- After hearing both the parties, the perusal of record and after discussion, this court has found that the order dated 15.9.09 passed by the Divisional Canal Officer, Faridkot Canal Division, Faridkot is liable to be upheld. Due to demolition of water course, the canal irrigation of the respondents have been stopped and they are suffering loss of their crops. Concerned Ziledar and Sub Divisional Officer, Ghola have recommended for the restoration of water course after the spot inspection. The water course prior and after the disputed water course is in existence, therefore, it is genuine to restore the disputed water course ABC. Therefore, the appeal of the appellant is hereby dismissed under Section 30 FF of the Canal & Drainage Act, 8 of 1873 and the order dated 15.9.09 passed by the Divisional Canal Officer, Faridkot Canal Division, Faridkot is hereby upheld in the welfare of canal irrigation and production. The orders of the canal authorities were challenged by respondent No. 3 by filing writ petition. The learned Single Judge allowed the writ petition on the ground that the demolished water course was not a sanctioned water course, therefore, it should not have been restored. It was also found that the demolished water course was also bifurcating the land of respondent No. 3. The learned Single Judge, after setting aside the aforesaid orders of the canal authorities, remanded the case back to the Divisional Canal Officer, on the ground that the orders passed by the canal authorities were not speaking orders.
(2.) Learned counsel for the appellants argued that the learned Single Judge has erred in law, while coming to the conclusion that an unsanctioned water course, if demolished by a party, cannot be restored. According to the learned counsel, if a water course is temporary or has been in existence for the continuous period of not less than six months prior to the date of its demolition, the same is to be restored, as such water course falls under the scope of Section 30-FF of the Act. Learned counsel argued that even an unsanctioned water course, existing or running on the spot for a considerable period, cannot be demolished by a party, and if demolished, the same has to be ordered to be restored by the canal authorities. He further argued that in the present case, the canal authorities have recorded a positive finding that the demolished water course was in running condition before its demolition and the appellants were irrigating their land through the said water course. While referring to the statement of Ranjit Singh (who had exchanged the land, in which the water course was existing, with respondent No. 3, his brother), made before the canal authorities, and other documents, learned counsel argued that the demolished water course was running at the spot for the last more than 40-50 years, therefore, the canal authorities rightly ordered restoration of the same, while recording a finding that it was illegally demolished by respondent No. 3.
(3.) Learned counsel for respondent No. 3 argued that the learned Single Judge was right while setting aside the orders of the canal authorities, as the demolished water course was not sanctioned one. It has been argued that a sanctioned pucca water course is available at the spot and the appellants can irrigate their land from that water course. It has been further argued that the demolished water course was not running on the spot for a long time. However, the existence of pucca water course before its demolition has not been disputed.;