Sukhdev Singh and Another v. Superintending Canal Officers and Ors

HARSH BUNGER, J. [ORAL] CM-7695-CWP-2025

This is an application filed under Section 5 of the Limitation Act, for condonation of delay of 37 days in filing the review application (RA-CW-236-2025).

For the reasons recorded in the application, delay of 37 days in filing the review application (RA-CW-236-2025) is condoned.

Civil Misc. Application is, accordingly, disposed of. RA-CW-236-2025

The present application has been filed by applicant/respondents No.3 to 6 in the main petition, under Section 114 read with Order 47 Rule 1

of the Code of Civil Procedure, seeking review of order dated 07.03.2025 (Annexure A-1) passed by this Court in CWP-24804-2023.

2.

Briefly, the main petition i.e. CWP-24804-2023 was disposed of by this Court vide order dated 07.03.2025 (Annexure A-1), by observing as under :- "2. Learned counsel for the petitioners submits that respondents No.3 to 6 applied to the canal authorities for restoration of the watercourse. While deciding the aforesaid matter, learned DCO, vide impugned order dated 24.04.2023 (Annexure P-4), ordered restoration of the watercourse without recording any positive finding as to whether the watercourse in question was either a sanctioned one or by way of prescription or by way of an agreement.

2.1 Learned counsel for the petitioners places reliance upon the judgment rendered by the Division Bench of this court in "Jagar Singh v. Superintending Canal Officer and others, 1972 PLJ 147". The relevant observations there, read as under :-

"The view we have taken on the matter finds support from the decision of the Lahore High Court in Hukman v. Emperor, AIR 1921 Lahore 327. This decision has held the field and reference need only be made to Moola Singh v. Surendra Singh, AIR 1960 Allahabad 656, wherein a large number of decisions taking the same view have been collated. It is true that the Labore decision dealt with the provisions of section 70, but broadly speaking the ambit of that section and section 30FF is pare materia. For instance, section 70(1) talks of alteration, enlargement or obstruction whereas section 30FF(1) also talks of alteration, enlargement, and obstruction. Section 70 fell for interpretation as early as 1921 in the Lahore High Court and it was ruled that it only contemplates 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. It was also held that if any person takes water through another man's land, the other man has the right to stop the flow of water through his land thereby committing no offence within the meaning of section 70. It is only when water is stopped in the case of watercourse of the three types already mentioned, that section 70 will come into play. Therefore, a watercourse which does not answer the description of the watercourse set out above would surely fall outside the ambit of section 70 and so also section 30FF. Section 30FF has been brought on the statute book long after section 70 was judicially interpreted and we must proceed on the basis that the farmers of section 30FF knew how section 70 had been interpreted and wherever they have used the same language in section 30FF, that must bear the same interpretation and none other.

¶7The correctness of the above view can further be demonstrated by referring to an instance where an unauthorised watercourse is dug by a party and he draws water from the canal in that watercourse. Surely, it cannot be countenanced that such a watercourse would fall within the ambit of section 30FF. If that be so, we do not see where to draw the line, for in that event, all illegal watercourses would fall within the ambit of Section 30FF and there would be no way out to curb that illegality because the illegality would have the sanction of law inasmuch as it can be perpetuated by resort to section 30FF."

2.2 It is further submitted that the law laid down in Jagar Singh's case (supra) has been consistently followed by this Court including in the case of Joginder Singh Versus The Sub Divisional Canal Officer, Ghaggar Water Services, Sub Division Tohana, 2003(2) RCR(Civil) 768.

¶3Learned counsel appearing for respondents No.3 to 6 does not dispute the aforesaid legal position and very fairly submits that indeed in the order passed by learned DCO as well as

learned SCO, no finding has been returned as to whether the watercourse in question is a sanctioned one or by way of prescription or by way of agreement. He further submits that the petitioners would have no objection if the impugned orders are set aside and the matter is remanded to learned DCO for fresh decision; however, he submits that appropriate directions be issued to the concerned Officer/Authority for deciding the remand matter, in a time bound manner.

¶4Learned counsel for the petitioners does not raise any serious objection to the aforesaid course of action being adopted.

¶5Keeping in view the judgment rendered in case of Jagar Singh and Joginder Singh (supra) and also the aforesaid statements made by the respective parties, the present petition is partly allowed and order dated 24.04.2023 (Annexure P-4) and order dated 26.06.2023 (Annexure P-5) are set aside. The matter is remitted to learned DCO with a direction to consider and decide the matter afresh after returning a clear finding as to whether or not the watercourse regarding which restoration is sought, is a sanctioned one or by way of prescription or by way of agreement. Let the aforesaid exercise be carried out within a period of three months from the date of receipt of certified copy of this order.

¶6The present petition is disposed of accordingly."

2.1

Now, the present review application has been filed on behalf of respondents No.3 to 6, primarily on the ground that the canal authorities below, while directing restoration of the watercourse, had observed that the warabandi and nakkas are sanctioned on the watercourse in question, therefore, the said observation establishes that the watercourse is sanctioned by law and falls within the scope of the Northern India Canal and Drainage Act, 1873.

3.

4.

During the course of hearing, learned counsel for the review-applicant/respondents No.3 to 6 was called upon to refer to any specific finding by any of the canal authority, holding that the watercourse in question, regarding which the restoration has been sought, was either a sanctioned one or by way of prescription or by way of an agreement, as has been held by the Division Bench of this Court in Jagar Singh's case (supra); however, he has failed to do so.

5.

In Sanjay Kumar Agarwal v. State Tax Officer (1), 2023 AIR (Supreme Court) 5636; Hon'ble Supreme Court has considered the scope of a review petition and has observed as under:-"16. The gist of the afore-stated decisions is that: -

(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.

(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.

(iii) An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review.

(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected."

(v) A Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise."

(vi) Under the guise of review, the petitioner cannot be permitted to re-agitate and reargue the questions which have already been addressed and decided.

(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

(viii) Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review…"

6.

It is further observed that the order under review has been passed with the consent of all the parties and the present review application has been filed by a counsel, who was not a counsel for the respondents, when the main petition was finally decided. In fact, the review applicants were represented in the main petition by Mr. Sandeep Khunger, Advocate and the present review application has been filed by Mr. Vijay Sharma, Advocate. Apparently, Mr. Vijay Sharma, Advocate did not appear at the time of hearing of the main petition. It is not fair to the Court to change a counsel and file a review application. The conduct of such a party is reprehensible and deserves to be deprecated.

7.

In Tamil Nadu Electricity Board v. N. Raju Reddiar, (1997) 1 JT (SC) 486, the Apex Court has observed as under : "Once an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed, that too by the Advocate on record who neither appeared nor was a party in the main case. It is salutary to note that Court spent valuable time in deciding the case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become in recent time, a practice to file such review petition as a routine, that too with change of counsel. Once the petition for review is dismissed, no application for clarification should be filed ... This

practice of changing the Advocate and filing repeated petition should be deprecated with heavy hand for purity of administration of law and salutary healthy practice. .............. The application is dismissed with costs of Rs. 20,000/- as it is an abuse of process of Court in derogation of healthy practice."

7.1

In Dr. B.K. Subba Rao v. M.K. Parasaran (1996) 7 JT (SC) 265, the Supreme Court observed as under : "No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wished. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions."

8.

In view of the above, I find no merit in this review application and the same is, accordingly, dismissed, with a cost of Rs.50,000/-, to be deposited by review applicant/respondents No.3 to 6, with [Punjab and Haryana High Court Bar Clerks Association, Bank Account No.65004775776, State Bank of India, IFSC Code: SBIN0050306, High Court Branch Chandigarh].

May 29, 2025

(HARSH BUNGER) gurpreet

JUDGE

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM-7695-CWP-2025 in/and RA-CW-236-2025 in CWP-24804-2023 Date of decision :29.05.2025 SUKHDEV SINGH AND ANOTHER …Petitioners Versus SUPERINTENDING CANAL OFFICER, PATIALA CANAL CIRCLE AND OTHERS …Review applicant/Respondents CORAM: HON'BLE MR. JUSTICE HARSH BUNGER Present : Mr. Vijay Sharma, Advocate for the review applicant/respondents No.3 to 6.