- (1.) Instant litigation arises from amendment of Warabandi (arrangement of turns of water) of outlet No.25443-R Balak Minor of village Balak, Tehsil and District Hisar. Vide order dated 17.07.2009, respondent no.1-Deputy Collector dismissed the application of private respondents for amendment of Warabandi specifically with regard to allotment of Nikal (residue of water) to their holding. However, in appeal, respondent no.2-Divisional Canal Officer set aside the order passed by respondent no.1-Deputy Collector, vide impugned order dated 19.01.2011 (Annexure P-6). Feeling aggrieved, the petitioner along with others preferred revision before respondent no.3-Superintending Canal Officer which has been dismissed vide impugned order dated 18.05.2011 (Annexure P-7). Hence, this writ petition. At the outset, it is mentioned that to make the position clear and for convenience of reference, points 'X' and 'E' have been marked by this Court on site plan (Annexure P-4).
(2.) Brief facts of the case are that land of petitioner and private respondents no.4 and 5 is being irrigated from outlet No.RD-25443-R, Balak Minor of village Balak, Tehsil and District Hisar. The land of petitioner has been shown in blue colour in the site plan (Annexure P-4), land of respondent no.4 in purple colour and land of respondent no.5 in green colour. The actual main watercourse which emerges from Balak Minor at point 'X' has been shown partly with green line up to point 'A' and it is brick lined (pucca) watercourse and thereafter it goes up to point 'E'. From point 'A' also, watercourse 'ACD' goes straight towards north. From point 'X' of outlet up to point 'A', two branch watercourses emerge, first branch watercourse is near to point 'X' of outlet which is also shown in green colour and is not relevant for the purpose of present controversy, however, another watercourse 'AEB' off-takes at point 'A', which is relevant for the present controversy.
(3.) The petitioner has averred that he had been getting 'Nikal' (residue) since long and length of watercourse 'AEB' is more than the branch watercourse 'ACD'. The land of petitioner shown in blue colour is being irrigated by watercourse 'AEB' whereas land of respondent no.4 shown in purple colour is being irrigated by watercourse 'XACD'. The land of respondent no.5 shown in green colour comes in between point 'A' and 'C' i.e. on watercourse 'XACD'. Since length of watercourse 'ACD' is long, it is to be treated as main watercourse. The Deputy Collector rejected the claim of private respondents saying that demand is not genuine, hence, rejected. Against that private respondents i.e. Dalip Singh, father of respondent no.4 and respondent no.5 preferred appeal before Divisional Canal Officer, who accepted their appeal vide impugned order dated 19.01.2011 (Annexure P6) on the ground that watercourse 'AB' will run first, then watercourse 'AC' and that Warabandi be amended and bharai/jharai be adjusted accordingly. Against that, the petitioner and others preferred appeal which has been dismissed by the Superintending Canal Officer vide impugned order dated 18.05.2011 (Annexure P-7) after considering the previous orders passed by the canal authorities including its predecessor between various parties and came to the conclusion that Warabandi is a temporary arrangement and principles of res judicata are not applicable. Upon notice, the respondents put in appearance. Respondent no.4 filed written statement with the averments that main water course 'XACD' is a straight-line out of which two branches arise. The land of petitioner is on the branch watercourse 'AB'. Respondent no.5 also filed separate written statement similar to the written statement filed by respondent no.4. I have heard learned counsel for the parties and perused the record.;