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2002 DIGILAW 812 (RAJ)

Satya Narain v. State of Rajasthan

2002-04-19

ARUN KUMAR, PRAKASH TATIA

body2002
JUDGMENT 1. - This appeal is against the judgment dated 23-10-2000 passed by the Against order of single Judge of this Court in Civil Writ Petri. No. 3803 of 2000, D/- 23-10-2000 learned single Judge by which the writ petition of the appellants-petitioners was dismissed by which the petitioners sought relief of quashing of the orders Annx. P. 2 dated 22-6-2000 and Annx. P. 3 dated 21-9-2000. 2. Brief facts of the case are that the petitioners, in the writ petition, alleged that on the application of the petitioners, the Executive Engineer vide order dated 12-12-1975 permitted additional 'Naka' at Square No. 123/213.4 and since then the petitioners are getting water supply from this Naka whereas respondent No. 4 was getting the irrigation facility for his agricultural field from Naka situated at Square No. 123/214 of Kila No. 5 from beginning. In the year 2000, respondent No. 4 Indraj made a request to the Executive Engineer that his water turn may be fixed at above additional Naka situated at Square No. 123/213.4 The Executive Engineer sanctioned the water turn of respondent No. 4 vide order dated 22-6-2000 (Annx. P.2) from Naka 123/213.4. The petitioners-appellants being aggrieved against the above order dated 22-6-2000 preferred appeal before the Superintending Engineer. 3. In above appeal of the petitioners, the Superintending Engineer passed the order dated 21-9-2000 (Annx. P. 4) sanctioning a new additional Naka at Square No. 123/213.6 and cancelled the Naka situated at 123/212 and 123/ 213.4. The petitioners being aggrieved, preferred the writ petition and sought the relief of quashing of the order dated 22-6-2000 (Annx. P.2) and 21- 9-2000 (Annx. P.4). 4. The respondents Nos. 1 to 3 submitted detailed reply to the writ petition and stated that the additional Naka at Stone No. 123/213.4 was not sanctioned on the application of the petitioner but it was sanctioned on the application of the one Sajjan Ram and Sajjan Ram is getting the irrigation facility from this Naka. It was also submitted that respondent No. 4 Indraj and his mother Smt. Jamna Devi were having their agricultural lands jointly situated in Murabbas Nos. 123/211, 123/212, 123/213, 123/214, and 123/215, 124/ 211, 124/212, 124/214 and 124/215. The above land was shown in the map annexed with the reply to the writ petition 'separately. It was also submitted that respondent No. 4 Indraj and his mother Smt. Jamna Devi were having their agricultural lands jointly situated in Murabbas Nos. 123/211, 123/212, 123/213, 123/214, and 123/215, 124/ 211, 124/212, 124/214 and 124/215. The above land was shown in the map annexed with the reply to the writ petition 'separately. The partition took place between respondent No. 4 and his mother which necessitated for seeking the irrigation facility by respondent No. 4, upon which the Executive Engineer (Irrigation) passed the order dated 22-6-2000, at Stone No. 123/213.4. It was also submitted by the respondents that thereafter the appellants-petitioners preferred the appeal before the Superintending Engineer. The site inspection was conducted on 25-8-2000 on the written application of the petitioners themselves. The site was inspected in the presence of both the parties by the concerned Assistant Engineer and Ziledar. Again on 18-9-2000, after getting technical report, the site was inspected in the presence of both the parties and, thereafter, a reasoned order was passed by the Superintending Engineer giving complete factual as well as technical details for sanction of the Naka at Stone No. 123/213.6 and for cancellation of Naka at Stone No. 123/212 and 123/213.4. 5. The learned counsel for the appellants submitted that the provisions of Sections 22, 24, 25 to 28 of the Rajasthan Irrigation and Drainage Act, 1954 (for short the Act of 1954') have not been complied with in this matter and, as per Rule 5 of the Rajasthan Irrigation and Drainage Rules, 1955 (for short, the Rules of 1955'), the Divisional Irrigation Officer was required to forward the proceedings to the Collector of the District for his orders under Sections 24 and 25 of the Act of 1954. 6. The learned Counsel for the appellants-petitioners relied upon the judgment of this Court delivered in the case of Inder Raj v. Executive Engineer, 1986 Raj LW 392 , wherein it was held that in case of construction of new water course, the procedure provided under Sections 22, 24, 25 and 26 of the Act of 1954 is required to be followed and the judgment relied upon by the learned single Judge in the case of Rameshwari v. State, (1993) 3 Raj LW 1499 has no application to the facts of this case. The learned counsel for the respondents submitted that the present matter is not governed by Sections 22, 24, 25 and 26 but is governed by Section 20 of the Act of 1954. It was also submitted that this is not a case of construction of new water course for which the procedure provided under the above sections is required to be followed. In fact this is a matter for seeking supply of water from an irrigation work through the existing intervening water course for which Section 20 of the Act of 1954 empowers the Divisional Irrigation Officers to pass appropriate order. It was also submitted that in view of the reasons given in the order passed by the Superintending Engineer, it is clear that it was an absolutely technical matter which was decided by the technical expert with active participation of both the parties and the decision was taken after giving full opportunities of hearing. By the impugned order, the justice has been done to the parties. Therefore, this Court should not exercise its jurisdiction under Articles 226 and 227 of the Constitution of India. 7. After considering the rival submissions, it is clear from the facts that the petitioners have not raised any objection of non-compliance of any of the statutory provisions in the appeal preferred by them before the Superintending Engineer. The contention submitted by the petitioners in their appeal is only that the Executive Engineer has not given any opportunity of hearing to the petitioners and the respondent No. 4 should have been given irrigation facility from the Naka at Stone No. 123/213 instead of Stone No. 123/213.4 and in case the respondent No. 4 will be permitted to have the 'Aad',as per the order of the Executive Engineer, it will cause loss to the crop of the petitioners. It appears from the order dated 21-9-2000 (Annx. P. 4) that the petitioners and the respondents both actively participated in the proceedings. Even the petitioners themselves submitted application requesting the Superintending Engineer himself to inspect the site so that he may decide the matter properly, upon which the site was inspected by the Superintending Engineer on 25-8- 2000 in the presence of both the parties, the concerned Assistant Engineer and Ziledar and, thereafter, again gave the opportunity of hearing to both the parties. Therefore, it is clear that the petitioners accepted the jurisdiction of the Superintending Engineer and after getting order against himself now wants to challenge the jurisdiction of the authorities which is not permissible. 8. Section 20 of the Act of 1954 is a provision under which application can be made to the Divisional Irrigation Officer for supply of water from the irrigation work through intervening water course. It is relevant to mention here that the irrigation work is having wide connotation which includes water course. As per the definition of "Irrigation works" given in clause (ii) of sub section (1) of Section 3, the water course is included in the Irrigation works. The definition of water course is given in clause (iv) of sub-section (1) of Section 3 of the Act of 1954. Section 20 applies to the entire irrigation work whereas Section 21 applies to the new water course. Therefore, if the order is passed under Section 20, the procedure is not required to be followed as provided under Section 21 and onwards which is procedure to be followed in the matter of construction of new water course. Rule 5 of the Rules of 1955 also applies to the Sections 22 and 23 of the Act of 1954. 9. The Division Bench of this Court in the case of Jarnel Singh v. State of Rajasthan, AIR 1992 Raj 173 considered the provisions of Section 20 of the Act of 1954 and held that in case of shifting of outlet, notice is required to be given to the co-sharers of the chak whose irrigation system is sought to be changed and notice to co-sharers of adjoining chaks is not necessary. In Jamel Singh's case (AIR 1992 Rajasthan 173) (supra), there was a dispute of shifting of Naka from one place to another which is also here in this case, whereas in the case of Inder Raj (1986 Raj LW 392) (supra), that was a case of construction of new water course. Therefore, this judgment of Inder Raj's case has no application to the facts of this case. 10. Therefore, this judgment of Inder Raj's case has no application to the facts of this case. 10. In view of the above reasons there is no illegality committed by the Superintending Engineer by passing the impugned order In addition to above, we are also of the view that when the concerned authority has decided the matter after taking full care of the technicalities of the matter, this Court should be slow in interfering with such type of orders. 11. Therefore, there is no force in this appeal. Hence, the appeal is dismissed.Appeal dismissed. *******