1. This order will dispose of Letters Patent Appeals Nos. 258 and 332 of 1971. The facts giving rise to these appeals may first be surveyed. Kundan Lal respondent in both these appeals filed Civil Writ Petition No. 3186 of 1970 against the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana, the Divisional Canal Officer, Bhatinda Division. Bhatinda, Bhai Siri Bam Singh (since deceased), end the Gram Sabha of village Jhumbha through its Sarpanch praying for setting aside the order of the Divisional Canal Officer, dated April 17, 1970 (Annexure 'C' to the writ petition), sanctioning a new watercourse instead of passing an order on the writ petitioner's application for restoration of a previous watercourse which was said to have been unauthorisedly dismantled by respondent No. 3 to the writ petition, and for the quashing of the appellate order of the Superintending Canal Officer, dated September 18. 1970, (Annexure 'D' to the writ petition), upholding the abovementioned order of the Divisional Canal Officer.
The claim of the writ petitioner was that in the course of the consolidation proceedings In his village, provision had been made in 1962-63 for irrigating the fields of the writ petitioner and other land-holders through, a water-channel (starting from a new minor known as peori Minor) which water-channel passed through the land of Bhai Siri Ram Singh. and that the writ petitioner was getting water for his fields from the said water-channel (khal which had been shown as 'AB' in the plan filed by the petitioner with the writ petition) since 1963. and that a portion of the said khal which was running through the land of Bhai Siri Ram Singh and his sons had been illegally demolished by him in the first week of July, 1966. The writ petitioner's application under Section 30FF of the Northern India Canal and Drainage Act (8 of 1873) (hereinafter called the 'Act') given on July 6, 1966. for restoration of the dismantled portion of the watercourse was allowed by the order of the Divisional Canal Officer in September. 1966.
It was complained that when respondent No. 3 came to know of the said order, he approached the Divisional Canal Officer, and got stay of operation of that order, and that ultimately instead of passing a proper order on the application for restoration by vacating the stay order, the Divisional Canal Officer proceeded to act under Sections 30A and 30-B of the Act with a view to provide the petitioner with a new alternative watercourse which was allowed by him suo motu by his order, dated April 17, 1970. which (as already stated) was upheld by the Superintending Canal Officer.
2. The petition was resisted by all the respondents mainly on two grounds, namely:--
(i) that it was open to the Divisional Canal Officer either to make an order for restoration of the dismantled water-channel or to initiate suo motu action under Section 30-A of the Act with a view to provide the petitioner with an alternative watercourse; and
(ii) that the water-channel 'AB' had not been sanctioned by the canal authorities, and so the Divisional Canal Officer was not required by law to make an order for its restoration.
The learned Single Judge repelled the first argument on the basis of the Judgment of A.D. Koshal, J., in Prithi v. Superintending Canal Officer, 1970 Puni LJ 566, and the second argument on the strength of the judgment of the same Judge in Umed Singh v. State of Haryana, 1970 Punj LJ 503. In the view taken by the learned Single Judge in the abovesaid two decisions, he did not consider it necessary to decide whether the procedure provided in Section 30-A of the Act had or bad not been strictly complied with. Nor did he go into the additional question raised by the petitioner about the newly provided water-course being or not being a proper one. Though in the course of the judgment, the learned Single Judge while agreeing with the previous judgment of this Court in Umed Singh's case (supra) observed that the Divisional Canal Officer was bound to restore the dismantled water course AB, it was ultimately ordered in the operative portion of the judgment while quashing the impugned orders of the Divisional Canal Officer and the Superintending Canal Officer that the said authorities may decide the application of the petitioner In the light of the observations made in the judgment.
3. L. P. A 258 of 1971 was filed by Bhai Siri Ram Singh, L. P. A. 332 of 1971, has been filed by the Superintending Canal Officer and the Divisional Canal Officer. In L. P. A. 332 of 1971, anapplication filed toy the Government (C. M. 9581 of 1974) praying for deleting the name of Bhai Siri Ram Singh from the array of respondents was allowed ex parte by a Division Bench of this Court on December 16, 1974. subject to all just exceptions. No exception has been taken to that order by Mr. S.S. Mahajan Advocate who appears for the legal representatives of Bhai Siri Ram Singh in the connected appeal.
4. L. P. A. 258 of 1971, C. M. 2600 of 1974 was filed by Bhai Satinder Paul Singh and Bhai Karamjit Singh sons of late Bhai Siri Ram Singh for being substituted as the legal representatives of the original appellant. That application was granted subject to just exceptions by a Division Bench of this Court on April 16. 1974. No exception has been taken to that order by the other parties to that appeal.
5. On the merits of the controversy Mr. Brar, the learned Senior Deputy Advocate-General for the State of Punjab has submitted that Umed Singh's case (supra) on which reliance was placed by the learned Single Judge has since been overruled by a Division Bench of this Court in Jagar Singh v. Superintending Canal Officer. 1972 Punj LJ 147. While overruling the judgment in Umed Singh's case, the Division Bench made it clear that Section 30-FF contemplates only three types of watercourses, that is:--
(a) sanctioned by law;
(b) sanctioned by agreement between the parties; and
(c) which have been prescribed by way of easement.
The claim of the writ petitioner was that the water-channel in dispute had been sanctioned in the course of consolidation proceedings. If so, it would ordinarily fall in the category of the watercourses sanctioned by law, on account of the provisions of Section 17 (1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, which reads as follows:--
'Whenever in preparing a scheme for the consolidation of holdings, it appears to the Consolidation Officer that it is necessary to amalgamate any road, street, lane, path, channel, drain, tank, pasture or other land reserved for common purposes with any holding in the scheme he shall make a declaration to that effect stating in such declaration that it is proposed that the right of the public as well as of all individuals in or over the said road, street, lane, path, channel, drain, tank, pasture or other land reserved for common purposes, shall be extinguished or, as the case may be, transferred to a new road, street, lane, path, channel, drain, tank, pasture or other land reserved for common purposes laid out in the scheme of consolidation.'
6. The expression 'common purposes' used in Section 17 (1) has been defined in Section 2 (bb) (iii) to include inter alia village watercourses or water-channels. A learned Single Judge of the Allahabad High Court has also held in Darbari Singh v. Chandra Kali, 1974 Cri LJ 384 (All), that a watercourse carved out during consolidation proceedings though not sanctioned under the Act is deemed to be authorised for distribution of water, and it is the duty of the landowners through whose fields it passes to allow it to run, and its demolition or obstruction would amount to an offence under Section 70 of the Act.
7. No finding has been recorded by the Divisional Canal Officer or the Superintending Canal Officer on the question whether the disputed watercourse did or did not pass through the land of Bhai Siri Ram Singh as the parties do not appear to have been ad idem on that point. Nor has any decision been recorded by the canal authorities on the fundamental question whether the water-channel 'AB' had been provided under Section 17 of the Consolidation Act or not-The trend of the pleadings of the writ petitioner also shows that the water-channel was possibly running through the fields of late Bhai Siri Ram Singh with his implied agreement from 1962-63 to 1966. In order to effectively decide the, application under Section 30-FF it would be necessary for the authorities under the Act to record clear findings on those matters. The Divisional Canal Officer is bound to decide according to law the application of the writ petitioner for restoration of the dismantled water-channel. It is not open to him to avoid the grant or refusal of the application merely by having suo motu resort to proceedings for framing a new scheme for providing an alternative water-channel. At the same time it is clear that the observations of the learned Single Judge that the Divisional Canal Officer is bound to direct restoration of the water-channel without going into any other matter were based solely on the judgment of this Court in Umed Singh's case which no longer holds the field as the same has been expressly overruled in Jagar Singh's case (supra).
8. Mr. Pitam Singh Jain, learned counsel for the writ petitioner-respondent, submits that the law laid down by the Divisional Bench of this Court (Mahajan and Sodhi, JJ. as they then were) needs reconsideration as it has been incorrectly held that an unauthorised watercourse cannot be ordered to be restored under Section 30-FF of the Act. We are bound by the judgment of the Division Bench. Even otherwise, it doesnot appear to be necessary in the circumstances of this case to go into that question as the petitioner's own case is that the water-channel in question was sanctioned by law inasmuch as it has been provided under Section 17 (1) of the Consolidation Act, and it is also his case that Bhai Siri Ram Singh had impliedly agreed to the laying of that water-channel and its running through his fields from 1963 to 1966 till he chose to dismantle it one fine morning in July, 1966. Even according to the iudgment of the Division Bench in Jagar Singh's case (supral the writ petitioner-respondent is bound to succeed if he is able to satisfy the Divisional Canal Officer on any of his said two claims, provided the disputed channel passed through the fields of late Bhai Siri Ram Singh.
9. Subject to the observations made above, no fault can be found with the judgment of the learned Single Judge. The orders impugned in the writ petition (Annexures 'C' and 'D' thereto) had, therefore, to be annulled and have been correctly quashed by the learned Judge in Chambers. These appeals must, therefore, fail, and are dismissed without any order as to costs. The Divisional Canal Officer will now proceed, hear and decide the application of the writ petitioner-respondent under Section 30-FF in accordance with law. The writ petitioner-respondent would be entitled to avail of the alternative water-channel (which has already been provided for him) till the restoration of the disputed water-channel, if it is ultimately ordered to be restored.