Rajendra Manda v. State of Rajasthan — 1992 DIGILAW 659 (RAJ)

Honble JASRAJ CHOPRA, J. — This writ petition is directed against the order (Annexure-5) dated 13.2.1992 passed by the learned Chief Engineer, irrigation Department, Rajasthan, Hanumangarh whereby the learned Chief Engineer has maintained the orders Annexure-3 dated 22.1.1990 passed by the learned Executive Engineer (Divisional Irrigation Officer) South Division, Sri Ganganagar and Anuexure-4 dated 9.3.1990 passed by the learned Superintending Engineer (Superintending Irrigation Officer), Irrigation Circle, Sri Ganga-nagar as regards the change of water-course meant for filling the diggi, from which, the villagers of village Chak 4? LNP, Tehsil Padampur take water. 2. It is alleged that this diggi is situated in Square No. 80/238 and for filling up that diggi, a Nakka (inlat) was sanctioned from square No. 84/239. It is further alleged that in the year 1970, one Devsiram father of respondent No. 1 moved an application before the Executive Engineer for change of this Nakka from square No. 84/239. According to Shri Devsiram, the existing water - course was passing through killas No.21 to 25 Square No. 13 (83/238) whereas he has prayed for the change of water-course through killa No. 21/1 of Square No. 14 (80/238). That application was rejected. 3. Tnereafcer, respondent No. 5 along with certain villagers filed an application for change of this Nakka. On that application, the Executive Engineer vide his order dated 29.7.1989 ordered for the change of this Nakka from Square No. 84/239 to 81/240. Against that order, an appeal was filed on behalf of the petitioner alongtfith some villagers before the Superintending Engineer. The learned Superintending Engineer, after hearing the parties vide his order Annexure-2 dated 1.11.1989 set aside the order passed by the learned Executive Engineer and reminded the case back to him for decision keeping in view the observations made by him. After remand, the learned Executive Engineer vide his order Annexure-3 dated 22.1.1990 maintained his earlier order Annexure-l dated 29.7.1989. 4. Aggrieved against this order Annexure-3, the petitioner filed an appeal before the learned Superintending Engineer, who vide his order Annex-ure-4 dated 9.3.1990 rejected the appeal. A second appeal was also filed against that order (Annexure-4) and that too came to be dismissed vide order Annexurc-5 dated 13.2.1992. 5. It has been contended by the petitioner that the Executive Engineer did not take into consideration the points for consideration on which the case was reminded back to him for fresh decision. A second appeal was also filed against that order (Annexure-4) and that too came to be dismissed vide order Annexurc-5 dated 13.2.1992. 5. It has been contended by the petitioner that the Executive Engineer did not take into consideration the points for consideration on which the case was reminded back to him for fresh decision. According to the petitioner the new water-course passes through sand-dunes for about 5 1/4 k.ms. He has submitted that although the existing water course is longer in distance and that distance will be reduced by 100, if the change is maintained but the proposed Nakka passed through sand - dunes, and Abadi and, therefore, the existing Nakka which is in use for the past aboul 20 years should not be disturbed. He has further contended that while ordering for the change of this Nakka, compliance of the provisions of ss. 24 to 28 of the Rajasthan Irrigation and Drainage Act, 1954 (hereinafter referred to as the Act) has not been made and, therefore, the orders Annexures-3, 4, and 5 deserve to be set aside and the earlier Nakka which was passing through square No. 84/239 deserve to be maintained. 6. A return has been filed on behalf of respondents No. 5 and 6. It was submitted that the old water-course also passe; through the village. The petitioners do not live in the village but they live in another village and, therefore, they are not aggrieved persons. It was submitted that out of 57 houses of the village, 45 are in favour of this Nakka. It was submitted that as the people of village Hunatpura, where the diggi was situated were not getting the water from the diggi due to illegal action of the petitioner as the petitioner was utilizing water from it in his field for irrigating his agriculture crops a complaint was made for the change of this Nakka and, therefore, the authorities have sanctioned this new Nakka. According to the respondents as this new Nakka will result in stoppage of misutilisation of water by the petitioner in irrigating their fields, they are aggrieved by it. According to the respondents as this new Nakka will result in stoppage of misutilisation of water by the petitioner in irrigating their fields, they are aggrieved by it. It was further submitted that the Executive Engineer, Superintending Engineer as also the Chief Engineer have also come to the conclusion on the basis of the facts as also after inspection of the site that this new Nakka is in favour of the villagers and, therefore, it should be sanctioned. It was, therefore, contended by the respondents that this writ petition deserves to be dismissed because the concurrent finding of all three Authorities acting quasi-judicially is that this new Nakka is in favour of the villagers. 7. I have heard Mr. S.N. Sharma for the petiiioner, Mr. B.C. Bhansali for respondents No. 1 to 4 and Mr. H.S. Kharliya for respondents No. 5 to 6 and have carefully gone through the record of the case. 8. The learned counsel appearing for the respondents raised a prelimi-nary objection that the provisions of Rajasthan Irrigation and Drainage Act, 1954 do not apply in such matters as the intention of the legislature in framing this piece of legislation was to regulate irrigation and drainage in the State of Rajasthan. According to them, filling of water diggis used by the villagers for drinking water purposes is not covered by either irrigation or drainage work. I am unable to accept this contention. 9. S. 31 of the Act provides that in absence of a written contract, or so far as any such contract does not extent, every supply of water from an irrigation work shall be deemed to be given at the rates and subject to the conditions prescribed by the rules to be made by the State Govt. in respect thereof. There is no doubt that water supply to the Diggi is made from an irrigation work and therefore, the supply of water is covered by s. 31 the Act. R. 15 of the Rajasthan Irrigation & Drainage Rules, 1955 reads as tinder : R. 15. in respect thereof. There is no doubt that water supply to the Diggi is made from an irrigation work and therefore, the supply of water is covered by s. 31 the Act. R. 15 of the Rajasthan Irrigation & Drainage Rules, 1955 reads as tinder : R. 15. Charges for water used for other than Irrigation purposes in the absence of a special contract.—With the previous permission of the Divisional or Sub-Divisional Irrigation Officer, tanks may be filled, or water may be supplied without a special contract, from a canal direct in small quantities, for purposes other than irrigation, at the rates, mentioned in Schedule-1, This rule has been framed under s. 31 of the Act and it categorically provides that the tanks may be filled, even for drinking purposes and that also is covered by r. 15 and therefore, there is no doubt that the supply of water is regulated by the provisions of the Act and the Rules framed there under. Having dealt with this preliminary objection now, I proceed to dwell upon to the contentions of Mr. S-N. Sharma, the learned counsel appearing for the petitioners that while ordering for the change of Nakka, compliance of the provisions of ss. 24 to 28 of the Act have not been made. I am unable to accept this contention also. 10. S.21 of the Act deals with application for Construction of new wate course and it provides that any person desiring the construction of new water course may apply in writing to the Divisional lrrigation Officer stating that he has endeavoured unsuccessfully to acquire from the owners of the land through which he desires such water course to passu right to occupy so much of the land as sill be needed for such water course; that he desires the said lrrigation Officer in his behalf and at his cost, to do all things necessary for acquiring such rights; and that, he is able to defray all costs involved in acquiring such right and constructing such water course. Thus, it is clear that s.21 of the Act applies to the cases where a person desires for the change of water course for his own advantage and in doing so, he claims certain rights over the land of others. Thus, it is clear that s.21 of the Act applies to the cases where a person desires for the change of water course for his own advantage and in doing so, he claims certain rights over the land of others. This is not a case of such a type and, therefore, the provisions of s. 21 of the Act have no application to the facts of the present case. 11. S.22 of the Act provides that when an application is made under s.21 of the Act, what procedure will be adopted by the Divisional Irrigation Officer. The Divisional irrigation Officer has to issue notice and invite objections in that respect and the persons so applying u/s. 21 of the Act are required to deposit costs of the acquisition. S. 23 of the Act pertains to the decision of the application for transfer of existing water course and it provides that any person desiring that an existing water course should be transferred from its present owner to himself, may apply in writing to the Divisional Irrigation Officer, stating (i) that he has endsavoured unsuccessfully to procure such transfer from the owner of such water course; (ii) that he desires the said irrigation Officer in his behalf and at his cost to do all things necessary for procuring such transfer; and that he is able to defray the cost of such transfer. Thus s.23 of the Act relates to the cases where personal rights in regard to the transfer of water course in connection with irrigation-facilities are involved and therefore, the provisions of s.23 of the Act have no application to the facts of the present case. 12. S.24 of the Act applies to the cases where notification is issued under ss. 22 and 23 of the Act and certain objections are invited and are filed by the interested persons as regards the land which is sought to be acquired for grant of facility of change of irrigation water course in favour of certain psrsons who are ready to deposit the costs of the land sought to be acquired. Thus, s.24 of the Act has no application to the facts of the present case. Moreover, the provisions of s.24 of the Act only applies when the objector objects before the Collector. Thus, s.24 of the Act has no application to the facts of the present case. Moreover, the provisions of s.24 of the Act only applies when the objector objects before the Collector. Here, the petitioners have not filed any objection before he Collector and, therefore, the Collector had no occasion to decide the matter under s.24 of the Act. Thus, neither it is a case of change of water course as provided in s.2l to 24 of the Act nor it is case of application for transfer of existing water course in favour of certain persons for irrigation purposes and, therefore, the provisions of s. 24 of the Act have no application to the facts of the present case. When the present petitioners have not filed any objections before the Collector, the provisions of s.24 to 28 of the Act will not apply to the facts of the present case. 13. No doubt, water can be supplied for other than irrigation purposes by charging same rates but this is a case where water is supplied to the villagers through diggi without payment of any charges. Earlier, wafer course was passing through the fields of the petitioners and it has been recorded as a finding of fact that the petitioners were misusing that water. They were irrigating their fields through this water course and it has been reported not only by ziledar but also by the concerned A. En. that irrigated crop is standing on their fields, although their land is barani in character which clearly shows that the petitioners have misutilised the water and it is because of this that they are interested that this water-course should run through their fields. Otherwise, there is no reason for them to corns to this court when the water-course is being changed on the request of the majority of the people of the village. When it has been recorded as a finding of fact that by change of this water course, the distance covered will be reduced by 100 ft and in both the cases i.e. proposed water course, and the old water-course,the water course will run through the Abadi land as also sand dunes and as such the decision of the Irrigation experts, who are the best Judges to judge from where the water course should ran cannot easily be disturbed. 14. 14. No doubt, it has been held by this Court in Inder Raj Vs. Executive Engineer (1) that for construction of a new water course, procedure as provided under sees. 22, 24 and 25 of the Act and subsequent provisions have to be followed. In this case, I have already held that objections as required by s. 24 of the Act have not been filed by the petitioners before the Collector and, therefore, the provisions of ss, 24 to 2S of the Act cannot be invoked in this case Not only that, I have also held that the provisions of ss. 21 to 23 of the Act also have no application to the facts of the present case. Thus, this authority has no application to the facts of the present case. 15. My attention was also drawn to a decision of this Court in Shivlal vs. State of Raj.(2) wherein it has been held that s. 53 is only applicable where two or more persons raise a dispute about the use or construction or maintenance of a water course. S. 53 of the Act only applies when a party wishes to continue on the existing water course and raises a dispute about his mutual right and liabilities. It cannot apply to a case of persons who are seeking to withdraw from the existing water course and are asking for the sanction of a new one. In this case, a notice under ss. 22 and 23 of the Act could not be issued because that has no application. Even as regards the change of water course, no objection has been raised by any villager that it should not pass through his field and actually the proposed water course does not pass through the fields of the petitioners and, therefore, they are not aggrieved persons. Moreover, it has been recorded as a rinding of fact that the petitioners do not reside in the village itself. Thus, this authority has no application to facts of the present case. 16. For the reasons stated hereinabove, I am firmly of the view that the order Annexure-5 dated 13.2.1992 does not call for any interference by this Court. 17. In the result, I find no force in this writ petition and it is hereby dismissed without any order as to costs.