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Ram Sarup Jug Lal Vs. Harphul Jaggu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 891 and Civil Misc. No. 5552 of 1971
Judge
Reported inAIR1972P& H338
ActsNorthern India Canal and Drainage Act, 1873 - Sections 30-FF; Code of Civil Procedure (CPC), 1908 - Sections 151 - Order 39, Rules 1 and 2
AppellantRam Sarup Jug Lal
RespondentHarphul Jaggu and ors.
Excerpt:
.....passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - section 30-ff, therefore, provides only a poor substitute for the remedy that was called for on the facts of the present case when the suit was instituted......remedy under this act where he is trying to prevent a threatened wrong. the canal authorities can remedy a wrong that has already been done and it may appear that the respondent has had to avail of those remedies on a previous occasion also. the petitioner's conduct had created an apprehension in his mind that the same wrong was going to be committed again and he had, therefore, filed this suit to prevent that threatened wrong. the subsequent events have also shown that his apprehensions were not without any sound basis. it is not necessary that the party should always wait until the damage had been done. during the season of drought, the time taken to set the canal authorities in motion could cause irreparable damage to the crop and as no effective remedy appears to have been provided.....
Judgment:
ORDER

1. This revision petition has been filed against the order of the Additional District Judge, Jind, whereby he has affirmed on appeal an order passed by the trial Court under Order 39, Rules 1 and 2 and Section 151 of the Code of Civil Procedure directing the petitioner and his sons to restore a water-course (Khal) which had been demolished after passing of a stay order against them. Separate proceedings for contempt of Court are said to have been initiated against the petitioner and his sons on the application of the plaintiff-respondent.

2. The suit has been instituted on 10-3-71 and the trial Court had granted ex parte stay order against the petitioner and his sons (defendants in the suit) on 11-3-1971 on the application of the plaintiff-respondent. It had been alleged in the plaint that the defendants had demolished the khal on a earlier occasion also and that the canal authorities had got the khal restored. The defendants were said to be threatening again to demolish that water course. Hence this suit for a permanent injunction to prevent a threatened wrong.

3. A Local Commissioner appointed by the Court had inspected the spot on 15-3-1971 and had reported that the water course in dispute was in existence at the spot. This water-course was, however, found to have been demolished some days later after the passing of the ex parte stay order. The two Courts below were, therefore, fully justified in directing the restoration of the water-course and the undoing of a high-handed act which had taken place during the pendency of the proceedings and after passing of this stay order. There is, therefore, nothing wrong if the two Courts below had made a mandatory order against the defendants directing them to reconstruct the khal.

4. Shri Surinder Sarup, the learned counsel for the petitioner, has drawn my attention to Section 30FF of the Northern India Canal and Drainage Act, 1873. The Divisional Canal Officer can on the application of an aggrieved party direct the restoration of a water-course but he shall have to make an inquiry after service of a notice in writing on the person concerned as required by sub-section (2) of Section 30-FF. If that person fails to carry out the orders, the Divisional Canal Officer can have the water-course restored to its original condition at the cost of the party at fault and these costs can be recovered as arrears of land revenue. An appeal lies to the Superintending Canal Officer from the orders of the Divisional Canal Officer. Shri Surinder Sarup argues that the respondent should have taken recourse to his remedies under this Section and that the jurisdiction of the Civil Courts is barred in view of the provisions of Section 30-G of Northern India Canal and Drainage Act, 1873. This Section runs as follows:--

'30-G. Notwithstanding anything contained in this Act or other law for the time being in force, no Civil Court shall have jurisdiction to entertain or decide any question relating to matters falling under Sections 30-A to 30-FF.'

5. There is, however, nothing in Sections 30-A to 30-FF which may suggest that a party has any remedy under this Act where he is trying to prevent a threatened wrong. The canal authorities can remedy a wrong that has already been done and it may appear that the respondent has had to avail of those remedies on a previous occasion also. The petitioner's conduct had created an apprehension in his mind that the same wrong was going to be committed again and he had, therefore, filed this suit to prevent that threatened wrong. The subsequent events have also shown that his apprehensions were not without any sound basis. It is not necessary that the party should always wait until the damage had been done. During the season of drought, the time taken to set the canal authorities in motion could cause irreparable damage to the crop and as no effective remedy appears to have been provided in the Northern India Canal and Drainage Act, 1873 for the prevention of such a threatened wrong, there was no bar to the plaintiff coming to Court to enforce a preventive remedy. Section 30-FF does not provide for the prevention of a threatened injury. It only provides for a remedy where the injury had already been caused. Section 30-FF, therefore, provides only a poor substitute for the remedy that was called for on the facts of the present case when the suit was instituted.

6. I see no grounds for interference and dismiss the revision petition with costs.

7. Revision dismissed.


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