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2008 DIGILAW 1524 (RAJ)

Bhanwar Lal v. State of Rajasthan

2008-05-30

H.R.PANWAR

body2008
JUDGMENT 1. - By the instant writ petition under Arts. 226 and 227 of the Constitution of India, the petitioners seek quashing and setting aside the order Annx.P/6 dated 22.12.2007 passed by the respondent No.2 the Superintending Engineer, Sahava Lift Circle, IGNP, Bikaner. 2. The facts and circumstances giving rise to the instant writ petition are that the petitioners claim to be in cultivatory possession of the agricultural land situated in Chak 9-LD in Muraba Nos. 36,37,43 and 44, though the said land stand in the name of their father and their father, being an old and infirm person; is unable to cultivate and, therefore, the petitioners, being the sons, are in the cultivatory possession of the said land. It appears from the averments made in the writ petition that the respondent No.2, by its order Annex.P/2 dated 22.06.2005 directed the respondent No.3, the Executive Engineer, Sahava Lift Circle, IGNP, Rawatsar, district Hanumangarh, to shift the out-let of the petitioners from 19/700-RD to 20-400-RD, though there was no such prayer made by any one. The order Annx.P/2 alleged to have been passed by the respondent No.2 without affording an opportunity of hearing to the petitioners and other affected agriculturists and also the respondent No.2 has no jurisdiction to pass such an order. 3. The order Annx.P/2 came to be challenged by some agriculturist who were adversely affected by that order before the Irrigation Minister of the Government of Rajasthan and by the order Annx.P/3, the Irrigation Minister directed to maintain the status quo as it existed on the date of passing the order. Being aggrieved by the order passed by the respondent No.2, particularly the order Annx.P/2, the petitioners filed a writ petition before this Court being SBCWP No.2125/2007, Bhanwar Lal & Ors. v. State of Rajasthan & Ors. , and that writ petition came to be allowed by the order dated 06.11.2007. In the said writ petition, this Court noticed that there is short controversy and while setting aside the order Annx.P/2, directed the respondent No.2, the Superintending Engineer, to hear the petitioners afresh and pass a fresh order on merit. v. State of Rajasthan & Ors. , and that writ petition came to be allowed by the order dated 06.11.2007. In the said writ petition, this Court noticed that there is short controversy and while setting aside the order Annx.P/2, directed the respondent No.2, the Superintending Engineer, to hear the petitioners afresh and pass a fresh order on merit. The contention was raised before this Court by the petitioners that the respondent No.2, the Superintending Engineer, has no jurisdiction to pass the order in the nature of the order Annx.P/2 and this Court made it clear that it would be open for the petitioners to raise this contention also before the Superintending Engineer, which will be examined by the Superintending Engineer on merit and if the Superintending Engineer finds force in the contention then he would send the matter to the concerned competent authority who is competent to decide the controversy. 4. By the order Annx.P/6 dated 22.12.2007, the respondent No.2, the Superintending Engineer, held that shifting of the outlet from 19.700-RD to 20.400-RD in Chack 9-LD is justified. Hence this writ petition. 5. It is contended by the learned counsel for the petitioners that the respondent No.2, the Superintending Engineer has no jurisdiction to pass the order of such a nature shifting the out-let. This point was specifically raised by the petitioners before this Court in the earlier Writ Petition No. 2125/2007, as noticed above, and the respondent No.2, vide order dated 06.11.2007 passed by this Court, was directed to hear and decide this point and before the respondent No.2, the petitioners raised this point specifically that the Superintending Engineer has no jurisdiction to shift the out-let as the power of distribution of canal irrigation vests with the Divisional Irrigation Officer, i.e., the Executive Engineer, the respondent No.3 and the respondent No.2 the Superintending Engineer, being an Appellate Authority against the order passed by the authority competent for passing the order for canal irrigation i.e. the Divisional Irrigation Officer, who is the Executive Engineer; and, therefore, the respondent No.2 fell in error in assuming the jurisdiction which was not vested in it to decide the matter for shifting/distribution of canal irrigation i.e. water out-let. 6. 6. Rule 11 of the Rajasthan Irrigation and Drainage Rules, 1955 (for short, "the Rules, 1955" hereinafter) reads as under:- "Distribution of canal irrigation:- (1) The Divisional Officer shall not authorise outlets on any canal exceeding the authorised or actual canal capacity, whichever is less, so that on release, water may run in the canal from head to tail. No irrigation from canal will be drawn from outlets other than those authorised by the Divisional Irrigation Officer. Outlets not so authorised may be removed and no claim in this respect shall lie against the Government. Persons violating this rule will be liable to punishment under Sec. 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 dale of issue of such orders and his decision in the matter shall be final. (3) Notice for the reduction and removal of outlets with brief reasons therefor, shall be issued by the Divisional Irrigation Officer and given adequate publicity through Panchayals requiring all persons affected by such reduction or removal, who may wish to make objections to submit their 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. 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 by the orders and his decision in the matter shall be final. (4) In case the Divisional Irrigation Officer is of the opinion that distribution of irrigation in a 'Chak' is not being ensured equitably and economically and Barabandi is essential; he may enforce Barahandi in the 'Chak' concerned after giving adequate publicity through Panchayats of his intentions 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 dale of the issue of orders and his decision in the matter shall be final. Breath of such Barabandi will be an offence punishable under Sec. 55(9) of the Act." 7. Appeal if any against the orders of the Divisional Officer shall lie to the Superintending Irrigation Officer within 15 days from the dale of the issue of orders and his decision in the matter shall be final. Breath of such Barabandi will be an offence punishable under Sec. 55(9) of the Act." 7. Sub-rule(4) of rule 11 of the Rule, 1955 provides that in case the Divisional Irrigation Officer is of the opinion that distribution of irrigation in a Chak is not being ensured equitably and economically and Barabandi is essential, he may enforce Barahandi in the Chak concerned after giving adequate publicity through Panchayats of his intentions of doing so. 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 the issue of orders and his decision in the matter shall be final. Thus, sub-rule (4) of rule 11 of the Rules, 1955 makes it clear that the Superintending Irrigation Officer, who is respondent No.2 the Superintending Engineer herein, is the Appellate Authority for deciding the matter if the dispute arises in respect of distribution of canal irrigation and shifting of outlet etc. 8. Learned counsel for the respondent supported the order impugned. The respondent-State filed a reply to the writ petition and contended that majority of the cultivators of the Chak 9-LD were deprived of the water due to heavy sand-dune (Tibba) obstructing supply of water from outlet 19.700 and, therefore, the outlet was shifted to 20.4(X)-RD taking the stand that the respondent No.2 Superintending Engineer is the competent authority to such sifting of the outlet. So far as the jurisdiction of the respondent No.2 Superintending Engineer is concerned, nothing has been controverted except staling that the compliance of rule 11 of the Rules, 1955 has been made as the opportunity of hearing has been afforded to the persons concerned as per the directions of this Court. 9. Learned counsel for the private respondents submits that the private respondents and other cultivators were not getting the adequate water and, therefore, shifting of the outlet was essential. 10. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. 11. 9. Learned counsel for the private respondents submits that the private respondents and other cultivators were not getting the adequate water and, therefore, shifting of the outlet was essential. 10. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. 11. This Court, by the order dated 06.11.2007 passed in earlier writ petition No.2125/2007, specifically directed the respondent No.2 Superintending Engineer to hear and decide the point of jurisdiction as to whether the jurisdiction vests with the Divisional Irrigation Officer i.e. the Executive Engineer, respondent No.3, and if so then he would send the matter to the concerned competent authority who is competent to decide the controversy. Rule 11 of the Rules 1955, in clear terms, provides that such controversy, including distribution of canal irrigation and shifting of outlet etc. are to be decided by the Divisional Irrigation Officer i.e. the Executive Engineer, respondent No.3, and this question has not at all been adverted to by the respondent No.2 the Superintending Engineer and he decided the matter on merit. 12. Though it is true that the Courts do not possess the expertise in the field of irrigation, as held by this Court in Shiv Lal v. State of Rajasthan & Ors., 1976 WLN 485 ; and a Division Bench of this Court in Jarnel Singh & Anr. v. State of Rajasthan & Ors., 1992 (1) RLR 264 ; however, on close scrutiny of the order impugned, it appears that the authority empowered has not undertaken such an exercise for shifting the outlets hut the Appellate Authority i.e. respondent No.2 the Superintending Engineer, who exercises the appellate cowers, itself has assumed the jurisdiction and decided the controversy recording shifting of the outlet and, therefore, if the order of the respondent No.2 Superintending Engineer is allowed to stand, the petitioners would certainly be deprived of their right to avail the remedy of statutory appeal and, therefore, in my view, the impugned order cannot be sustained in the eye of law and is liable to be quashed and set aside. 13. Consequently, the writ petition is allowed. 13. Consequently, the writ petition is allowed. The impugned order Annx.P/6 dated 22.12.2007 passed by the respondent No.2 the Superintending Engineer is quashed and set aside and the matter is remitted to the respondent No.3, i.e. the Executive Engineer, Sahava Lift Circle, IGNP, Rawatsar, district Hanumangarh, who is the competent authority under rule 11 of the Rules 1955, to decide the controversy raised, hear all the affected parties including the parties herein, and examine the matter technically and decide it afresh utmost expeditiously. There shall be no order as to costs.Writ Petition Allowed. *******