- (1.) The petitioners have moved this Court under Articles 226 and 227 of the Constitution praying for the issuance of a writ in the nature of certiorari quashing the impugned orders of the Divisional Canal Officer, and the Superintending Canal Officer, copies Annexures P.1 and P.3 respectively, by which the alignment of the water-course marked F.P.S.C., was approved.
(2.) The facts emerging from this petition are that the petitioners as well as respondent Nos. 4 to 7 are that right-holders in village Maheshpura, Tehsil Samrala, District Ludhiana, and their lands were being irrigated from outlet RD. 18448/R Bhamian Minor from the water-course B F.P.S.C. for the last more than 15 years. The land lying between points 'P' and 'S' is comprised in Killa No. 6/2 and is in exclusive possession of petitioner No. 1, Raghbir Singh, because of a private partition, and there is watt separating it from Killa No. 6/1, which is in possession of Gajjan Singh and Mit Singh respondents. About 4 or 5 years back Gajjan Singh respondent No. 6 constructed a Kotha near the said water-course and about two years back made an enclosure wall around the said Kotha including the area under the water-course. However, the water-course was not disrupted and it continued to serve the share-holders without any obstruction, as the same was passing through the enclosed boundary of the Kotha of Gajjan Singh respondent. Something in March or April 1975, respondent No. 7, Mit Singh, also constructed a Kotha by the side of Gajjan Singh's land and thereby he closed the water-course in connivance with the latter. Feeling aggrieved against the closure of the water-course, Sewa Singh respondent No. 4 made an application to the canal authorities for the restoration of the water-course. It has been alleged that on the application of Sewa Singh respondent, instead of taking action under Section 30-FF of the Northern India Canal and Drainage Act, 1873 (hereinafter called the Act), the Divisional Canal Officer, respondent No. 3, got prepared a scheme for providing an alternative water-course "B.E.G.", which was finally approved vide his order, dated 16th June, 1975, despite strong objections raised by the petitioners. Against the order of the Divisional Canal Officer, the petitioners filed an appeal before the Superintending Canal Officer, respondent No. 2, who accepted the contention of petitioner No. 1 to the extent that he was in exclusive possession of Killa No. 6/2 and that in case the new water-course is allowed to be reconstructed he is bound to suffer in the area of his land, but he suggested compensation to petitioner No. 1 by the other co-sharers who wanted that the old water-course should not pass through their area, and so all of them agreed to it. However, this did not satisfy the claim of petitioner No. 1 and so the appeal was rejected vide order, dated 11th September, 1975. The impugned orders, copies Annexures P.1 and P.3 of the Divisional Canal Officer and the Superintending Canal Officer respectively have been challenged on the following grounds :- 1. That the Divisional Canal Officer issued notices to many right-holders including respondents Nos. 4 to 7, but no notice was issued to petitioner No. 2 who was an aggrieved party; 2. That it was incumbent on the Divisional Canal Officer to take action under Section 30-FF of the Act for restoration of the obstructed water-course and the action of the Divisional Canal Officer was without jurisdiction in having ordered the preparation of the scheme for the construction of a new water-course; and 3. That Mit Singh respondent No. 7 is a retired Superintendent of the Irrigation Department, Punjab, and as such he has old links with the Department and it is on account of his undue influence on the canal authorities that the construction of a new water-course was proposed as detailed above.
(3.) Shri S.P. Bector, Divisional Canal Officer, Bhakra Main Line Division, Patiala, has filed a written statement by way of affidavit on his own behalf and on behalf of respondents 1 and 2. Sewa Singh Sarpanch, respondent No. 4, has filed a separate affidavit defending his own rights. It has been pleaded that the land of the petitioners and the respondents has not been partitioned and the same continues to be joint as per Jamabandi of 1972-73. It has, however, been admitted in the return that the shareholders constructed the house along with the pucca road. Watercourse F.P.S. was constructed by the share-holders after they had mutually agreed and the same was closed with their consent as it was causing damage to their houses. An alternative water-course E.G. in lieu of water-course F.P.S. was agreed to by all the share-holders on their unpartitioned land except petitioner No. 1. Sewa Singh respondent No. 4 accepted the alternative water-course and applied for its sanction. It has been categorically denied that the application of Sewa Singh was for the restoration of the water-course to provide irrigation to the area of Sewa Singh respondent No. 4. It has been explained that after hearing the parties under Section 30-B(2) of the Act, the Divisional Canal Officer approved the alignment of the water-course as it was found to be the most suitable alignment. When the appeal was pending, the Superintending Canal Officer accepted the proposed water-course and heard all the share-holders present at site. After getting the concurrence of the share-holders including petitioner No. 1, he upheld the decision of the Divisional Canal Officer, and the Department under these circumstances and in the best interests of the irrigation provided a suitable alignment based purely on technical grounds.;