JUDGMENT 1. - Somewhere in the year 1997-1998 a pukka (brick) canal was constructed and the water outlet available at the petitioners' chak was shifted to new canal. The Superintending Engineer (respondent No.3) sanctioned water outlet at Stone Line No.274.2RD No.74.975(R). A direction was also given as an interim measure to install a water outlet at Stone No.274.2 RD, however, instead of doing so a water outlet was installed at Stone Line No.273. A report was made by the Assistant Engineer for installation of such erroneous water outlet. A recommendation was also made to install water outlet at Stone No.274.2 as sanctioned by the Superintending Engineer on 31.3.1999. The Superintending Engineer also passed an order accordingly on 31.10.2001. 2. A petition for writ ( SBCWP No. 4613 of 2001, Sohan Singh v. State ) was filed before this Court to challenge the order dated 31.10.2001 and that came to be decided on 24.1.2003 with following observations:- "This writ petition has been filed for quashing the order dated 31.10.2001 passed by the Superintending Engineer in respect of the irrigation matters under the provisions of Rajasthan Irrigation and Drainage Act, 1954 and the rules framed thereunder of 1955. As the learned counsel appearing for the parties had been fair enough to admit that the order has been passed by the Superintending Engineer who is an appellate authority and it should have been passed by the Executive Engineer giving an opportunity of hearing to the parties concerned, the order cannot be sustained in the eyes of law. In view of the above, the order dated 31.10.2001 passed by the Superintending Engineering is hereby quashed. The matter is remitted to the respondent No.3 who may hear the parties and other concerned parties who may be adversely affected by his order and pass an appropriate order in accordance with law. With these observations, the writ petition stands disposed of. There shall be no order as to the costs." 3. In pursuant to the aforesaid directions, the Executive Engineer vide order dated 1.10.2005 made an order to maintain the outlet at Stone Line No.273. On appeal the order dated 30.1.2006 passed by the Executive Engineer was set-aside and while doing so, the appellate authority (Superintending Engineer) noticed that the Executive Engineer has not made available the original record for consideration regarding the application for change of water outlet. On appeal the order dated 30.1.2006 passed by the Executive Engineer was set-aside and while doing so, the appellate authority (Superintending Engineer) noticed that the Executive Engineer has not made available the original record for consideration regarding the application for change of water outlet. The appellate authority also noticed the contention of the appellants (present petitioners) that their land is not presently getting irrigation water from Stone Line No.273. 4. A challenge was given to the order dated 30.1.2006 by way of filing a petition for writ before this Court and that came to be accepted on 16.10.2006. An appeal before Division Bench was preferred by the present petitioners giving challenge to the judgment dated 16.10.2006 and that came to be disposed of by the judgment dated 20.11.2006 (Annex.-14). While disposing of appeal, the consideration made in directions given by the Hon'ble Division Bench reads as follows:- "Now it is common ground between the parties that before passing the order dated 30th Jan., 2006, no notice was issued in fact to the respondents in appeal before the Superintending Engineer. In the aforesaid circumstances, we are of the opinion that on admitted position, the order dated 30.1.2006 is not liable to be sustained for this reason alone notwithstanding our prima facie opinion that one of the relevant considerations which affect the interest of irrigation has not been taken into account by the Executive Engineer also. In the circumstances, learned counsel for the parities submit that no purpose would be served by keeping this petition pending here by way of disposing of interim application. The impugned order dated 30th January, 2006 deserves to be quashed and is hereby quashed and the parties are directed to appear before the Superintending Engineer on 1st of February, 2007. No notice will be issued to them now. It will be the responsibility of the respective counsel to inform their respective parties for making representation. It is also impressed upon the Executive Engineer that he should promptly made the original record available to the Superintending Engineer and failure to make original record available immediately to the Superintending Engineer despite these directions will be considered a serious case of in subordination and will also be considered defiance of the orders of the Court. It is also impressed upon the Executive Engineer that he should promptly made the original record available to the Superintending Engineer and failure to make original record available immediately to the Superintending Engineer despite these directions will be considered a serious case of in subordination and will also be considered defiance of the orders of the Court. It will be the duty of the learned Government Advocate appearing in this case to inform the Executive Engineer to make the records available to the Superintending Engineer before the date of hearing fixed by the Court. This disposes of the writ petition also. Until appeal is decided by the Superintending Engineer, status quo as exists today shall not be altered. Accordingly, the special appeal as well as the writ petition are disposed of." 5. In pursuant to the directions given by the Division Bench as aforesaid, the Superintending Engineer vide order dated 5.5.2007 constituted a committee of four technically qualified persons to examine the entire issue. The committee after visiting the site on 4.6.2007 and 5.6.2007 submitted its report to the Superintending Engineer on 30.6.2007. As per the recommendation made by the technical committee, the FSL level at Stone Line No.274.2 is higher than the Stone Line No.273, therefore, better irrigation facility can be provided by installing water outlet in the Chak concerned at Stone Line No.274.2. As per the recommendation made by the technical committee, the FSL level at Stone Line No.274.2 is higher than the Stone Line No.273, therefore, better irrigation facility can be provided by installing water outlet in the Chak concerned at Stone Line No.274.2. The relevant portion of the conclusion given by the committee reads as under:- " fu"d"kZ % desVh ds }kjk ekSds ds fujh{k.k ,oa Hkk[kM+k ds fjdkMZ dk voyksdu djus ij ik;k x;k fd pd 23 ds,u,u ds eks?ks dh fLFkfr fookfnr jgh gS] fjdkMZ ds vuqlkj ;g cqthZ la[;k 74-975 iRFkj ykbZu 274-2 ij Lohd`r FkkA blh txg eks?ks gsrq LV~Dpj fufeZr gSA tcfd ekSds ij cqthZ la[;k 76-00 vFkkZr~ iRFkj ykbZu 273 ij ikbZi vkmVysV yxk gqvk gS] tks orZeku esa pkyw gSA iRFkj ykbZu 274-2 ij ugj dk ,Q,l,y 193-53 ehVj izkIr gksrk gS] tcfd iRFkj 273 ij 193-46 ehVj fey jgk gSA ;fn eks?ks dks iRFkj ykbZu 273 ij j[kk tkrk gS rks rqyukRed :i ls eq[; [kkys dks vf/kd HkjkbZ esa ys tkuk gksxk] iwoZ dh rjQ ds jdcs dks rqyukRed :i ls fuEu ty Lrj izkIr gksxkA Li"V gS fd iRFkj la0 274-2 ij mPp ty Lrj izkIr gksrk gSA ;fn bls /;ku esa j[kdj pd Ldhe esa vkaf'kd la'kks/ku fd;s tkrs gS rks u;s dek.M dks mPp ty Lrj izkIr gksxkA ftlls dqN jdck vfrfjDr dek.M gks ldrk gSA blls lgh vkadyu lh,Mh Ldhe cuus ij gh lEHko gks ldsxkA " 6. The Superintending Engineer vide order dated 7.9.2007 permitted to continue water outlet at Stone Line No.273, ignoring the recommendations made by the technical committee. Being aggrieved by the same this petition for writ is preferred. 7. As per petitioners, their land is situated in between Stone Line No.275/365 to 275/375 and that is higher than the remaining land in the Chak concerned, as such, the land cannot be irrigated from the water outlet given at Stone Line No.273 being at lower level and also against the slope of land. 8. Learned counsel for the petitioners submitted that an Expert Committee consisting of two Executive Engineers, one Assistant Engineer and one Junior Engineer after examining all relevant facts and also the site, made recommendations for installing water outlet at Stone Line No.274.2, but the Superintending Engineer just for the reason that the water outlet at Stone No.273 is working from last number of years rejected the expert's recommendations. It is also submitted that if the water outlet is installed at Stone Line No.274.2, the entire land that is presently irrigated by the outlet situated at Stone Line No.273 can receive water as the location of the outlet sanctioned and recommended by the Expert Committee is at higher altitude. 9. The respondents No.1 to 3 in their reply without denying the recommendations made by the experts committee accepted that Chak plan of Chak 23 KNN was prepared by the Canal Area Development Department, according to which water outlet is sanctioned at RD 74.975 i.e. Stone No.274.3. In spite of it an effort is made to defend the order passed by the Superintending Engineer merely by saying that the order impugned was passed after considering "all the pro and cons of the matter". 10. In reply to the writ petition submitted on behalf of the respondents No.6 to 33, it is stated that from last number of years irrigation facility is provided from the water outlet situated at Stone Line No.273/372 and the petitioners want change the same to get their un-command land irrigated. 11. From the factual position narrated above, it is quite clear that the water outlet was sanctioned at Stone Line No.274.2 and a committee of experts also recommended for installation of water outlet on the point aforesaid. As per the expert committee's report, the land at stone No.274.2 is at higher level than the locations of the water outlet situated at Stone Line 273. The only reason for continuing water outlet at Stone Line No.273 under the order impugned is that temporary outlet was earlier given and that is continuing from last number of years. 12. During the course of arguments, the fact of getting irrigation facilities by number of peasants and a huge part of land from the water outlet at Stone Line No.273 was also advanced and that was not disputed by any of the party. Having considered this fact, on 8.7.2010 the Court directed the respondent Department to find out viability of establishing an additional water outlet at Stone Line No.274.2 while continuing the present water outlet at Stone Line No.273. 13. Having considered this fact, on 8.7.2010 the Court directed the respondent Department to find out viability of establishing an additional water outlet at Stone Line No.274.2 while continuing the present water outlet at Stone Line No.273. 13. The respondents examined the viability and stated that as per designed manual prescribed by the Canal Area Department, the outlet size should be capable for water discharge generally between 1.50 to 2.50 cusec's. Outlet with discharge below 1.50 cusec's and above 2.50 cusec's should be considered in special case only. It is submitted that in the event of providing additional outlet at Stone Line No.274.2, the water discharge shall be less than 1.50 cusec's. 14. Learned counsel for the petitioner stated that there are number of water outlet sanctioned by the official respondents having discharge less than 1.50 cusec's and that is upto 1.05 cusec's. The fact above is admitted by the learned counsel for the respondents No.1 to 3, after getting necessary instructions from the officer-incharge of the case. 15. Looking to all existing facts specially that a big number of peasants are getting irrigation facility from the water outlet situated at Stone Line No.273 and as per experts water outlet is required to be installed at Stone Line No.274.2, I am of the view that the instant one is the case where deviation from prescribed manual is necessary to meet the ends of justice. To settle the dispute and equities between the parties, I deem it appropriate to dispose of this petition for writ by directing the respondents No.2 and 3 to install an additional water outlet at Stone Line No.274.2 as sanctioned without disturbing the water outlet already continuing at Stone Line No.273. The order passed by the Superintending Engineer dated 7.9.2007 also stands modified accordingly. 16. The petition for writ stands disposed of.Petition disposed of. *******