Divisional Canal Officer, Upper Gogera Division, by his order dated 20-10-1990 allowed the petitioner's application for including 4.2 acres of his land comprised in Killa Nos. 18, 23, 24 and 25 of Square No.88 in CCA of Outlet RD-111302/R, Khurrianwala Distributory. The case was placed before the Superintending Canal Officer, respondent No. l for confirmation of the order of the DCO: Respondents Nos,2 to 4, the irrigators from the outlet in question filed objections before the Superintending Canal Officer contending that the area in dispute was not commandable; CCA of the outlet in question was 781 acres but according to the sanctioned ' Warabandi', 798 acres were already receiving water from the said outlet and any increase in the area on this outlet would adversely affect the rights of the majority of, the share-holders. Petitioner took the stand . before the Superintending Canal Officer that as per the command statement attached with the 'Missal', the area in dispute was commandable. The Superintending Canal Officer observed that the decision of the D.C.O. made no mention of the watercourse through which the canal water was to be given to the area of the petitioner and, therefore, it was not possible to work out the command available for irrigating the area proposed to be included in the C.C.A and as such the Command Statement attached with the 'Missal' could not be relied upon. It was further found by the Superintending Canal Officer that according to the Chak Plan attached with the 'Missal', the area fell between the contour of 25 and 26 and, therefore, it could not be commanded from the proposed source. The Officer also upheld the contention of the respondents that the inclusion of the area in dispute in the Chak of the outlet in question would adversely affect the rights of majority of the shareholders of the outlet. For all these reasons, the Superintending Canal Officer refused to confirm the decision of the Divisional Canal Officer. This was vide judgment dated 3-3-1991 which has been brought under challenge in the present Constitutional petition.
2. I have heard the learned counsel for the parties as also the learned Additional Advocate- General. Learned counsel for the petitioner contended that the fact that the land in dispute was commandable was evident from its being included in the regular 'Warabandi'. It was, in fact, receiving the supply of canal water for the last forty years. It was thus wrongly held by the Superintending Canal Officer that the area in dispute could not be commanded from the proposed source. This finding, according to the learned counsel, was wholly arbitrary as the Officer neither perused the record and the reports of the field staff of the Canal Department supporting the petitioner's contention nor did he inspect the site before passing the impugned order. It was particularly pointed out by the learned counsel that during the pendency of the case in this Court, the Superintending Canal Officer accompanied by the DCO and other staff visited the petitioner's land in the presence of a number of land-owners and he quite frankly admitted that he had wrongfully refused the confirmation of the order of the DCO. For this factual assertion, learned counsel relied upon the petitioner's affidavit appended with C.M. 1-92 filed in this Court on 14-7- 1992. This assertion, it was submitted, was not controverted by filing any counter---affidavit. The Deputy Collector, Irrigation present with record admitted that the area in dispute was included in the Command Statement. He also did not controvert the petitioner's contention that the area was included in the 'Warabandi'. In the circumstances, the observation/finding recorded in the impugned order that the area could not be commanded from the proposed source, prima facie, does not appear to be sustainable. Learned counsel for the petitioner also assailed the finding of the Superintending Canal Officer that since the watercourse through which supply of the canal water was to be given to the area of the petitioner was not mentioned -in the order of the DCO, it was not possible to work out the command available for irrigating the area in dispute. Submission made by the learned counsel was that the defect pointed out in the impugned order could well be rectified by either remanding the case to the DCO or by calling for the requisite information from him. Learned Additional Advocate-General quite fairly supported this argument and the learned counsel for the private respondents was unable to meet it. The argument, in fact, is well based. The Officer by examining the record could inform himself about the watercourse through which the water was to be given to the petitioner and could also possibly work out the command. He, therefore, proceeded on wholly untenable premises in holding that the Command Statement attached with the ' Missal' could not be relied upon.
3. In view of what has been said above, the impugned order of the Superintending Canal Officer cannot be sustained. The same is accordingly declared to be without lawful authority and of no legal effect. The writ petition is thus accepted and the case remanded to the Superintending Canal Officer for passing a fresh order after examining all the material on the record and preferably after spot inspection, of course, after hearing the parties concerned. No order as to costs.