The central legal point established in the judgment is the requirement to prove the existence of a water course by means of prescription and sanctioned warabandi under the Haryana Canal and Drainage Act, 1974.

RAJESH BHARDWAJ, J.

1. Present writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing of orders dated 21.10.2014 (Annexure P-5), 05.06.2014 (Annexure P-4), 03.04.2014 (Annexure P-2) and 30.01.2014 (Annexure P-1), passed by respondents No.1 to 4, respectively.

2. It has been contended by learned counsel for the petitioner that during consolidation, respondent No.5 and other co-sharers had the sanctioned water course from outlet No.34750-R and this water course was being used for irrigation purposes since consolidation. To harass the petitioner, petition was filed by respondent No.5 for restoration of water course. Respondent No.4 vide his order dated 31.07.2013 had ordered for restoration of water course under Section 24(2) of Haryana Canal and Drainage Act, 1974 (for short ‘the 1974 Act’) for a period of one year. Aggrieved by order dated 31.07.2013, the petitioner as well as respondent No.5 both filed their separate appeals before respondent No.3. On hearing both the appeals, respondent No.3 passed the order after taking into consideration the water course allotted to respondent No.5 and other co-sharers from Killa No.98//1-2-3-4. Thus, the case was taken up by respondent No.4 and vide order dated 30.01.2014, the petitioner was directed to restore the water course situated along with eastern line of killa No.98//24 on the basis of prescription as defined under Section 2(15) of the 1974 Act. Aggrieved by this, the petitioner filed an appeal before respondent No.3, however, the same was dismissed by Divisional Canal Officer vide his order dated 03.04.2014. The petitioner further challenged the same by way of filing revision before the Superintendent Canal Officer. However, the same was declined by learned Superintendent Canal Officer vide his order dated 05.06.2014. The petitioner further approached respondent No.1 for assailing the order dated 05.06.2014, however, the same was again challenged but declined by Chief Canal Officer vide impugned order dated 21.10.2014.

3. It has been submitted by learned counsel for the petitioner that the authorities have miserably failed in appreciating the contentions of petitioner simply on the ground that the water course existed as per record of Khasra Girdawaris. However, it is apparent that this water course never existed as there is no revenue record in support of the contention of respondent and thus, restoration of water channel simply on the basis of the prescription is totally in violation of Section 24 of the 1974 Act. He has submitted that perusal of the statutory provisions of Section 24 of the 1974 Act and Section 15 of the Easement Act, 1882 would show that the right of prescription would arise only if the water course was being used by respondent No.5 and other co-sharers from the eastern side of Killa No.98//24 for a period of more than 20 years before filing of the application on 25.06.2013. He has submitted that revenue record produced by respondent No.5 refers to a period between 77 to 1993 and the khasra girdawaris were also changed without issuing any notice to the petitioner. He has submitted that respondents-authorities have failed to appreciate that water course which was allotted in consolidation from killa No.98//1-2-3-4 was sufficient enough for being used by respondent No.5 and other co-sharers for irrigation. He submits that the impugned orders suffer from patent illegalities and thus, the same be set aside.

4. Learned counsel for respondent No.5 has vehemently opposed the submissions made by learned counsel for the petitioner. He submits that the existence of water course is duly proved from the revenue record. He submits that the revenue record was appreciated and the site was inspected. He submits that there are specific findings by the Sub Divisional Canal Officer that on the spot inspection, it was found at the spot on eastern line of Killa No.98//24 canal water course had been c