- (1.) This is a Letters Patent Appeal against the judgment and order of an Hon'ble Single Judge of this Court declining to allow CWP No. 3114 of 1985 preferred by the appellant. The facts giving rise thereto are these : The second respondent, who is the main contestant, filed an application under Section 17 of the Haryana Canal and Drainage Act, 1974 (hereinafter referred to as 'the Act') before the Divisional Canal Officer for sanctioning a watercourse 'AA' reflected in plan Annexure P-4. That strip 'AA' measured barely 25 feet and was part of the land of the appellant. The said officer prepared a draft scheme as envisaged under Section 17, published it and received objection thereto. The objection of the appellant was that the second respondent and other shareholders could well irrigate their lands from RD 375-R Jansui distributary and that a watercourse had been kept for irrigation those during consolidation proceedings. That site was 'MN' shown in plan Annexure P-4 and ran parallel to the Narwana Branch, which is a canal. As regards the proposed watercourse, it was pleaded that the off shoot at point 'A' was temporary in nature and was meant exclusively for the appellant. In other words, it was not meant for the second respondent. These objections found favour with the Divisional Canal Officer, who rejected the scheme on October 31, 1983, vide order Annexure P-1. The appeal of the second respondent was dismissed by the Superintending Canal Officer on May 25, 1984, vide order Annexure P-2. However, the Superintending Canal Officer was impressed by the argument of the second respondent that there were burrow-pits at site 'MN' running parallel on the Narwana Branch and he, obviously in the interest of irrigation, ordered the respondent to filed up burrow-pits at the proposed site of the watercourse along side the Narwana Branch by May 31, 1984, and in case the appellant failed to do so, he was ordered to provide a watercourse through his fields, adjacent to the watercourse left in consolidation. So it was evident from this order that the justice of the cause of respondent No. 2 was alive in the minds of these officers, who were keen to given immediate succour to the second respondent.
(2.) The second respondent preferred a revision petition, though styled as an appeal, before the Chief Canal Officer. He took a broader view of the mater. He saw things in the right perspective, because what was termed as a watercourse alongside the Narwana Branch was in fact not a watercourse but a site left for the purpose during consolidation. The watercourse shown in 'Dots' in plan Annexure P-4 was already running termporarily and the outlet thereof was at point 'N' from the Narwana Branch. So from this temporary watercourse, an offs hoot (sic) was ordered at point 'A' providing watercourse upto point 'A-1', wherefrom the land of the second respondent started. However, in order to meet the objection of the appellant, it was ordered that instead of the watercourse 'A' to '1-A' running on surface, it be run underground by burying a 25 feet long pipe. So the temporary watercourse got a temporary off shoot provided thereform in the interest of irrigation till the matter got finally settled by proper drawer of a scheme for the outlet at RD 375-R, Jansui distributary. Aggrieved against the said order, the appellant filed CWP No. 3114 of 1985 in this Court, which on dismissal has given rise to this Letter Patent Appeal.
(3.) Two points have been raised by Mr. A.S. Nehra, learned counsel for the appellant. The first point is that the laying of an underground pipe to permit outflow of water from point 'A' to point 'A-1, is not providing a watercourse, and if that is so neither can section 17 nor section 18 of the Act, be invoked. On that basis, it is urged that the entire proceedings are without jurisdiction. Somewhat similar was the contention rasped by the appellant before the learned Single Judge unsuccessfully. But keeping that apart, there is a basic fallacy in the argument. Sub-section (1) of Section 17, being the only part relevant for our purpose, is booted below :- "17. Preparation of draft scheme-Nothwithstanding anything contained to the contrary in this Act but subject to the rules prescribed, Divisional Canal Officer may, on his own motion or on the application of a shareholder, prepare a draft scheme to provide for all or any of the matters, namely :- (a) The construction, alteration, extension and alignment of any watercourse or re-alignment of any existing watercourse; (b) allotment of any new area to a watercourse or an outlet or re-allotment of area served by one watercourse to another or from one outlet to another or for exclusion of an area from an outlet or a water course; (c) construction of a new outlet, shifting or modification of an existing outlet; Explanation - Any change in the design or size or both of an outlet, whose design or size both have been changed in an unauthorised manner for restoring the same to its authorised discharge shall not be deemed to be a modification. (d) the lining of any watercourse; (e) the occupation of land for the deposit of soil from watercourse clearances; (f) any other matter which is necessary for the proper maintenance and distribution of supply of water from a watercourse or an outlet".;