- (1.) Present writ petition has been filed by the petitioners under Articles 226/227 of the Constitution of India for quashing of order dated 21.06.2011 (Annexure P/7) passed by respondent No.1 Superintending Canal Officer, whereby order dated 21.11.2002 (Annexure P/4) passed by the Divisional Canal Officer, Abohar, has been set aside under the provisions of Northern India Canal and Drainage Act, 1873 (hereinafter referred to as the Act).
(2.) Brief facts of the case are that respondent No.2 Harbans Kaur moved an application before the Deputy Collector, Abohar for change of her turn of water on the ground that she is entitled to Nikal. The turn of water of respondent No.2 and her husband respondent No.3 are fixed at Serial No. 22/1 and 22/2 and the turns of the petitioners are at Serial No.22/3 and 22/4. She is entitled to Nikal as her land falls on the main water course. On the said application, Deputy Collector issued notice to the petitioners. After hearing the parties, Deputy Collector has recorded a finding that respondent No.2 and her husband are entitled to Nikal as their land is at the end of the main water course. The petitioner preferred appeal before the Divisional Canal Officer and vide order dated 21.11.2002 (Annexure P/4) the Divisional Canal Officer set aside the order of the Deputy Collector and maintained the Nikal in favour of the petitioners. Thereafter, respondent No.2 approached the Superintending Canal Officer by way of revision petition, which has been decided in favour of the private respondents vide order dated 03.03.2008 (Annexure P/5). Aggrieved against the same, the petitioners filed Civil Writ Petition No. 13066 of 2008 in this Court, which was disposed of vide order dated 05.10.2010 (Annexure P/6). This Court remanded the matter to the Superintending Canal Officer and directed him to pass a fresh order in revision after considering the effect of order dated 19.11.2001 passed by the Deputy Collector, Abohar. Thereafter, the Superintending Canal Officer again accepted the appeal of the private respondent No.2 and passed the impugned order dated 21.06.2011 (Annexure P/7). The relevant part of the impugned order is as under:- ".....as the area of the respondent falls on the branch water course and water course also reaches their land first and the area of the appellant is on the main water course. So as per the rule of Warabandi first come, first serve, the small branch will run first and thereafter the main water course will run. The nakka of taking water & area of the appellant falls at the end. Thus the right of Nikal is of the appellant. Copy of warabandi was also considered in which the turn of water of the appellant is for 13 acres and the turn of the respondent is for 5 acres, which is very less. Due to this the respondent does not fulfill the condition of Nikal. In this way the right of the respondent for Nikal is not made out. The decision of Deputy Collector, Abohar dated 12.9.2002 was also considered which has been made keeping in view the above facts into consideration. In this way the turn of water of the appellant is required to be sanctioned as per order dated 12.9.2002 passed by Deputy Collector, Abohar Division, Abohar. So as per the directions of the Punjab & Haryana High Court, and keeping in view the above facts into consideration the undersigned is agreeable with the demand of the appellant and the order of Divisional Canal Officer, Abohar Division, Abohar dated 21.11.2002 is set aside under Section 68(6) of Northern India Canal and Drainage Act 8 of 1873 Pb. Amendment Act 23 of 1965, meaning thereby that the appeal is accepted. This decision was kept reserved. So both the parties be informed as per the rules."
(3.) I have heard learned counsel for the petitioners at length.;