Sukhveer Singh v. State of Rajasthan — 1998 DIGILAW 818 (RAJ)

Honble YAMIN, J.–With the consent of learned counsel for both the parties both the writ petitions are being decided together at the admission stage. (2). Both the petitioners claimed that they have been in actual physical cultivatory possession of certain lands situated in chak No.13 G.D. since last more than 13 years with the consent of Gokul Chand and are still continuing in possession with the permission and there is not dispute about it between them. The petitioners are also residing with their families near dhani (house) situated in murabba No.205/38. Gokul Chand had moved an application under Section 15-AAA of the Rajasthan Tenancy Act before the Assistant Colonisation Commissioner, Anopgarh. The said application was disallowed and then he preferred an appeal before the Revenue Appellate Authority, Bikaner who vide its judgment 5.8.89 allowed the appeals and Gokul Chand was granted Khatedari rights. The State of Rajasthan filed a revision No. 156/89 before the Board of Revenue and the same was still pending. The Board of Revenue passed an order on 12.10.90 staying the dispossession of Gokul Chand on whose behalf and consent the petitioners are continuing in actual physical possession of the lands. (3). The water supply of this murabba was being made since very beginning and there was no reason to discontinue the same yet the irrigation authorities have abruptly stopped supply of water to this murabba since June, 1998 without affording any opportunity of hearing to the said Gokul Chand or his family members or the petitioners who are in actual physical possession of the lands with the consent. It has been prayed that the respondents may be directed to continue the supply of water to the above lands. (4). Replies were submitted by the respondents in which it has been averred that Gokul Chand expired as back as in May, 1994 but the petitions do not disclose this fact. The fact of revision petition is in the knowledge of the petitioners. It is not being decided by the Board of Revenue because the legal representatives of Gokul Chand are avoiding service. The ulterior motive of filing these writ petitions is to obtain a favourable order with oblique motive to avoid decision of revision petition pending before the Board of Revenue. It is not being decided by the Board of Revenue because the legal representatives of Gokul Chand are avoiding service. The ulterior motive of filing these writ petitions is to obtain a favourable order with oblique motive to avoid decision of revision petition pending before the Board of Revenue. So far as the impugned action is concerned, it has not been replied in so many words instead it has been averred that the petitioners have not implead any of the legal representatives of Gokul Chand and as such in absence of legal representatives no inquiry can be made regarding consent of Gokul Chand or permissible possession, therefore, the writ petitions deserve to be dismissed. (5). I have heard the learned counsel for both the parties at length and have gone through the record. (6). Learned counsel for the petitioners submitted that the petitioners are occupiers and the supply of water cannot be abruptly discontinued in such a manner without giving any notice to them. He submitted that the petitioners are in cultivator possession of the land and even if their possession was of trespassers, they remain occupiers of the land and when the charges for watering are being paid continuously, supply cannot be stopped in such a manner without giving them an opportunity of being heard. He also submitted that the provisions of Rajasthan Irrigation and Drainage Act, 1954 as well as the Rules made therein do not bar su- pply of water. (7). On the other hand, learned counsel for the respondents submitted that the petitioners were the trespassers, penalty was imposed on Gokul Chand and they have no right of cultivation. It has also been submitted that the material facts have been suppressed by the petitioners and the petitions should be dismissed. (8). I have considered the arguments of the learned counsel for both the parties. Section 32 of the Rajasthan Irrigation and Drainage Act, 1954 provides conditions of water supply. Clause (c) of Section 32 of the said Act is as follows:- ``If the supply of water in any land irrigated from an irrigation work be interrupted otherwise than in the manner described in the last pre- ceding clause, the occupier or owner of such land may present a petition for compensation to the Collector for any loss arising from such interruption, and the Divisional Irrigation Officer may award to the petitioner reasonable compensation for such loss. (9). In this sub section the word `occupier is used and it has been defined in Rule 36 of the Rajasthan Irrigation and Drainage Rules, 1955 which is as follows:- ``For the purpose of Section 36 the following persons shall be deemed to be `Occupiers, (3) namely:- (a) where the proprietor or the tenant, other than a tenant of sir land is in actual cultivatory occupations such proprietor or tenant; and (b) where the proprietor of sir land has let it, or where the tenant of the land other than sir land has sublet it, such proprietor or tenant and the person in actual cultivatory occupation, shall be jointly and severally liable for the payment of the occupiers rate. (10). So it cannot be denied that the petitioners are the occupiers. The subject matter of their being a trespassers is not the subject matter of this writ petition. Therefore, I am not called upon to decide whether the petitioners are the trespassers or not. They are definitely ``occupiers.. The relevant rule regarding distribution of canal irrigation is rule 11 of the Rules of 1955 which is as follows:- ``11. Distribution of canal Irrigation.- (1) No irrigation from canals will be drawn from outlets other than those authorised by the Divisionals Irrigation Officer. Outlets not so authorised may be removed and no claims in this respect shall lie against the Government. Persons violating this rule will be liable to punishment under Section 55(9) of the Act. (2) No material change shall be made in an established system of canal distribution except under the orders of the Divisional Irrigation Officer Appeal against the orders of the Divisional Irrigation Officer, shall lie to the Superintending Irrigation Officer within 15 days from the date of issue of such orders and this decision in the matter shall be final. (3) Notice for the reduction and removal of outlets, with brief reasons there for, shall be issued by the Divisional Irrigation Officer and given adequate publicity through Panchayats requiring all persons affected by such reduction or removal, who may wish to make objections in writing to the Divisional Irrigation Officer within 15 days from the date of issue of such notice. The Divisional Irrigation Officer shall, after considering all such objections, make necessary orders. The Divisional Irrigation Officer shall, after considering all such objections, make necessary orders. Appeal if any, against the orders of the Divisional Irrigation Officer shall lie to the Superintending Irrigation Officer within 15 days from the date of issue of the orders and his decision in the matter shall be final. (4). In case the Divisional Irrigation Officer is of the opinion that the distribution of Irrigation in a `chak is not being ensured equitably and economically and Barabandi is essential, he may enforce Barbandi in the `chak concerned after giving adequate publicity through Panchayats of his intention of doing so. Appeal if any against the orders of the Divisional Officer shall lie to the Superintending Irrigation Officer within 15 days from the date of the issue of the orders and his decision in the matter shall be final. Breach of such Barabandi will be an offence punishable under Section 55(9) of the Act. (11). Sub-rule(2) of Rule 11 of these Rules provides that no material change shall be made in an established system of canal distribution except under th orders of the Divisional Irrigation Officer. Sub-rule(3) provides that notice for the reduction and removal of outlets with brief reasons there for shall be issued by the Divisional Irrigation Officer and given adequate publicity through Panchayats requiring all persons affected by such reduction or removal who may wish to make objections in writing to the Divisional Irrigation Officer within 15 days from the date of issue of such notice and then Divisional Irrigation Officer shall after considering all such objections make necessary orders. Learned counsel for the respondents submitted that alternate remedy to submit appeal to the concerned authorities was available to the petitioners which has not been used by them and, therefore, this writ petition should be dismissed. (12). Learned counsel for the petitioners then cited Amar Singh & Ors. vs. State of Rajasthan and Ors. (1), in which Rule 11(3) was under consideration and it has been held that not availing the alternate remedy in such a case is not a bar for filing a writ. (13). (12). Learned counsel for the petitioners then cited Amar Singh & Ors. vs. State of Rajasthan and Ors. (1), in which Rule 11(3) was under consideration and it has been held that not availing the alternate remedy in such a case is not a bar for filing a writ. (13). The petitioners are occupiers of the land and the supply of water has been abruptly stopped in the 3rd week of June, 1998 without affording any opportunity of hearing to the legal heirs of Gokul Chand or to the petitioners who are the occupiers and are in actual physical possession of the land without any notice. This action of the respondents cannot be upheld as the same is not according to law. (14). Consequently, both these writ petitions are allowed and the respondents are directed to continue the supply of water to the lands in question. The respondents are free to proceed according to the provisions of Rule 11 of the Rules of 1957 if they so desire i.e. if the respondents want to take any action according to Rule 11 in future, notice shall be given to the concerned persons and then action will be taken. No orders as to costs.