Back
2011 Supreme(P&H) 2197
2012(1) LAW HERALD (P&H) 80
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Tejinder Singh Dhindsa
RSA No.1763 of 1989
Maghar Singh & Anr.
v.
Parsin Kaur & Ors.
{Decided on 22/12/2011}
For the Appellants:Mr. Vishal Aggarwal, Advocate for Mr. GS Dhillon, Advocate.
For the Respondents:Mr. Kabir Sarin, Advocate.
Headnote:Injunction--Against forcibly digging the khal/watercourse--Civil Court will certainly have jurisdiction to prevent a threatened wrong
(A) Northern India Canal and Drainage Act, 1873, S.30--Permanent Injunction--Against forcibly digging the khal/watercourse--Civil Court Jurisdiction--Held; that the Civil Court will certainly have jurisdiction to prevent a threatened wrong--In such a situation, the civil suit is not barred by Section 30-G of the 1873 Act--Specific Relief Act, 1963, S.38.
There is nothing in the scheme of the Act and, in specific, in Section 30-A to Section 30-FF of the 1873 Act which may suggest that a party has any remedy where he is trying to prevent a threatened wrong--The Canal Authorities can remedy a wrong that is already done--As no effective remedy appears to have been provided in the 1873 Act for the prevention of a threatened wrong, there was no bar to the plaintiff-respondents in instituting the suit for permanent injunction so as to enforce a preventive remedy. (Para 11)
(B) Northern India Canal and Drainage Act, 1873, S.30--Water Courses--Types of--1873 Act deals with both, authorized and unauthorized watercourse--The expression ‘authorized watercourse’ means a watercourse made available under the provisions of the Act and all other being unauthorized--It was further held that Section 30-F contemplates only three types of watercourses i.e. (i) sanctioned by law (ii) sanctioned by agreement between the parties, and (iii) which have been prescribed by way of easement. (Para 8)
(C) Northern India Canal and Drainage Act, 1873, S.30--Water Course--Restoration of--That even if at a point of time there was a watercourse in existence in the suit land wherefrom the defendant-appellants had taken water, it would not mean that they thereby acquired a vested right to irrigate their land through such alleged watercourse. (Para 10)
Mr. Tejinder Singh Dhindsa, J.: - This second appeal by the defendants is directed against the judgment and decree passed by the Additional District Judge, Barnala, dated 26.5.1989, whereby he has accepted the appeal and reversed the judgment of the trial Court dismissing the plaintiffs’ suit.
2. The plaintiffs filed a suit for grant of permanent injunction for restraining the defendants from forcibly digging the khal/watercourse in the suit land comprised in khasra Nos.75//9/2(1-2), 75//12(8-0). It was pleaded on behalf of the plaintiffs that they were owners of the suit land measuring 9 kanals 2 marlas. There was no khal in existence through the land of the plaintiffs and no khal passed through the suit land. The defendants wanted to dig a khal forcibly in the suit land belonging to the plaintiffs and consequently, the suit was filed. The defendants filed a written statement taking an objection that the Civil Court had got no jurisdiction and as such, the suit was not maintainable. On merits, the defendants averred that the khal had been in existence in the suit land for a large number of years and that the plaintiffs had demolished the said khal and on an application having been filed before the Sub Divisional Officer (Canals), an order dated 5.1.1984 had been passed under Section 30 of the Northern India Canal and Drainage Act, 1873 (hereinafter to be referred as ‘1873 Act’) for restoration of the khal. It was also pleaded that the plaintiffs had filed an appeal before the Superintending Canal Officer, Sirhind against the order passed by the Sub Divisional Officer (Canals) and such appeal had also been dismissed.
3. Upon the pleadings of the parties, the following issues were framed:
1. Whether there is no khal in existence in khasra No.9/2 and 12 of rectangle No.75? OPP
2. If issue No.1 is proved, whether the plaintiffs are entitled to the injunction prayed for? OPP
3. Whether civil court has got no jurisdiction to try the present case? OPD
4. Whether the suit is not maintainable in the present form? OPD
5. Relief.
4. The trial Court dismissed the suit holding the same to be barred by virtue of Section 30-G of the 1873 Act and further returned a finding that there was a khal in existence on the suit land on the date of institution of the suit. The plaintiffs filed an appeal and the same has been accepted vide impugned judgment and decree dated 26.5.1989 passed by the Additional District Judge, Barnala. In terms thereof, the plaintiffs have been granted a decree of permanent injunction against the defendants restraining them from using or digging the watercourse in the suit land.
5. Respective counsel for the parties have been heard at length and the record has been perused.
6. Learned counsel appearing for the defendant-appellants has vehemently argued that the jurisdiction of the Civil Court was barred in view of Section 30-G of the 1873 Act and as such, the suit itself was not maintainable. Learned counsel has further contended that the khal in question in the suit land had been in existence for the last 40 years and as such, the plaintiff-respondents had no right to demolish the same. Reliance has been placed on a Division Bench judgment passed by this Court in Daya Singh v. Superintending Canal Officer, Amritsar, 2001(3) RCR (Civil) 534.
7. It would be necessary to refer to certain provisions of 1873 Act for the adjudication of the controversy raised in the instant second appeal. Section 3, sub-clause (2) defines a watercourse. Section 30-FF regulates a procedure upon a person demolishing, altering or obstructing a watercourse or causing any damage thereto and the remedy open for a person affected thereby. Section 30-G of 1873 Act would also be relevant. The aforesaid provisions read as under:
“3(2). “watercourse” means any channel which is supplied with water from a canal, but which is not maintained at the cost of the [State Government] and all subsidiary works belonging to any such channel.
30-FF. (1) If a
