- (1.) The challenge in the present writ petition is to the orders dated 16.09.2008 passed by the Divisional Canal Officer through which the sanctioning of a sub minor in place of a kacha water course of outlet Burji 383565-L Assa Butter and sanctioning of new outlet 268/236 acres was allowed under Section 30-B (2) of the Northern India Canal and Drainage Act 8 of 1873 (hereinafter referred to as 'the Act'). Also under challenge is the order dated 17.02.2009 passed by the Superintending Canal Officer in appeal preferred by the petitioners challenging the above referred order of the Divisional Canal Officer through which the Superintending Canal Officer sanctioned a sub minor on Government expenses at Burji 383565-R Assa Butter for an area 587/530 acre of rightholders of village Matta and a water course alongwith the right side of the proposed minor for 268/236 acre area of village Romana Albel Singh and Kotakpura. It was further held in the impugned order passed by the Superintending Canal Officer that two outlets were being sanctioned at Burji 383565-R Assa Butter feeder (Abohar Branch) in the interest of better irrigation and that the same would be prepared on Government expenses.
(2.) The petitioners lay a challenge to the above referred two orders on the ground that no scheme as required under Section 30-A of the Act, had been prepared and published and resultantly the petitioners had no notice of any such scheme. It was further submitted that the Superintending Canal Officer had sanctioned two outlets on his own which he could not do as the issue before him was only regarding one sub minor. The petitioners further assail the above referred two orders as according to the petitioners the orders are tainted with political mala fide.
(3.) On the other hand, the respondents raised a preliminary objection to the very maintainability of the present petition. The private respondents say that the petitioners had moved the Civil Court for the same relief and having withdrawn the civil suit without any liberty to file the present petition, the present petition was not maintainable. The private respondents further pointed out that filing of the civil suit has not been disclosed by the petitioners in the writ petition and thus, having suppressed this crucial fact, they had dis-entitled themselves to be even heard on merits. Irrespective of the above objections, on the merits of the case, the private respondents submit that the scheme was duly published as per the provisions of Section 30-A of the Act and objections, as required by law were invited from all interested persons. It was further submitted that the orders under challenge were passed after notice to all concerned and after perusal of the reports by all revenue authorities who had submitted such reports after site inspection. The private respondents further submit that the only objection by the petitioners was that they were not willing to give their land free of cost for the construction of the sub minor in question. It was pointed out that as per the orders of the Superintending Canal Officer the sub minor was to be constructed at Government expenses and therefore, the only grouse of the petitioners were duly met. It was further submitted that the existing water course was a kacha water course resulting in leakage and therefore, the construction of the sub minor as requested by the private respondents was in the interest of better irrigation of the entire area. Thus, the private respondents prayed for dismissal of the writ petition.;