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2011 DIGILAW 1491 (RAJ)

Iqubal Singh v. State of Rajasthan

2011-07-26

ALOK SHARMA

body2011
JUDGMENT 1. - The petitioners have challenged the order dated 30.06.2009 passed by the Executive Engineer, Water Resources, Division-I, Hanumangarh so also the order dated 07.08.2009 passed by the Superintending Engineer, Water Resources, Circle, Hanumangarh, whereby, the additional 'naka' sanctioned has been allowed to stand subject to the condition that the respondent Harpal Singh maintain the right of way over the outlet at his own cost without any obstruction. 2. The case of the petitioners is that the additional 'naka' ought not to have been sanctioned and the orders dated 30.06.2009 as modified by the order dated 07.08.2009 ought to be set aside. 3. The background facts to this petition are that the petitioners have agricultural land in Square No.66/108 and the inlet (naka) for the watering of the said agricultural land is at Stone No.66/108. The land of the private respondents is situate in Square No.67/107 and this land of the private respondents has been cultivated from the sanctioned 'naka' at Stone No.66/108 for the last over 40 years. Apart from the fields of the petitioners and the respondents, two other agricultural fields according to the petitioners have also been cultivated by the preexisting 'naka'. According to the petitioners, after the arrangement for watering the fields having existed for the land for about 40 years, the respondents No.4 and 5 moved an application before the Executive Engineer, Water Resources, Division-I, Hanumangarh stating that their land situate in Square No.67/107 was not getting optimal irrigation from the sanctioned inlet (naka). On this ground, the private respondents sought the sanction of an additional inlet (naka) at Stone No.66/108 between Killa Nos.21 and 22 of Square No.67/107 for watering their fields. 4. On the application of the private respondents, a report was obtained from the Assistant Engineer in the course of the enquiry on the application in issue. The Halka Patwari recorded the statement of consent from the majority of adjoining owners of the agricultural fields but without notice of the petitioners. According to the petitioners, however on notices being issued by the Executive Engineer, they appeared and submitted their objection. These objections however came to be dismissed by the Executive Engineer without any good cause and the Executive Engineer accepted the application of the private respondents and sanctioned an additional 'naka'. 5. According to the petitioners, however on notices being issued by the Executive Engineer, they appeared and submitted their objection. These objections however came to be dismissed by the Executive Engineer without any good cause and the Executive Engineer accepted the application of the private respondents and sanctioned an additional 'naka'. 5. Aggrieved by the order dated 30.06.2009 passed by the Executive Engineer sanctioning the additional 'naka' as aforesaid, an appeal was laid to the Superintending Engineer, Water Resources, Circle, Distt. Hanumangarh. The petitioners have submitted that the Superintending Engineer however dismissed the appeal filed without adequate consideration even while directing that the order of the Executive Engineer sanctioning the additional 'naka' would be subject to the condition of the private respondents maintaining the right of way at their own cost over the newly sanctioned 'naka'. 6. On notices being issued by this Court, the respondents No.1 to 3 as also the private respondents have filed reply. 7. The State in its reply has stated that the Executive Engineer passed the order sanctioning the additional 'naka' after hearing the petitioners on technical considerations and that the additional 'naka' was necessary for the optimal use of the sanctioned water by the private respondents. It was submitted that the Superintending Engineer considered the matter and the order passed by the Executive Engineer, Water Resources, Division-I, Hanumangarh has been modified to ensure that the creation of the additional 'naka' did not cause any annoyance or nuisance to the public in the area. The private respondents have been directed by the Superintending Engineer to maintain the way over the newly sanctioned additional 'naka'. It was stated that there was no violation of principles of natural justice and the additional 'naka' was sanctioned in the interest of irrigation after considering all the technical problems. It was stated in the context of the levels of the land of the private respondents that the additional 'naka' at a higher level would facilitate better irrigation. It is further submitted that in fact the additional 'naka' was also in the interest of the petitioners because due to the additional 'naka' the petitioners would get water after 'Khal Bharai' of one kila only while the private respondents would get water 'Khal Bharai' after four kilas. It was pointed out that except of the petitioners, none of the other agriculturists in Murraba Nos.66/107 and 66/108 had raised any objections. It was pointed out that except of the petitioners, none of the other agriculturists in Murraba Nos.66/107 and 66/108 had raised any objections. Consequently, it was submitted that the additional 'naka' was a consequence of consideration of technical feasibility, topography of the land, level of the land of the private respondents and was just and reasonable. 8. The private respondents also filed their reply to the writ petition. In the preliminary objection, it was stated that the additional 'naka' was sanctioned between Kila Nos.21 and 22 at Stone No.67/107 and the petitioners had no agricultural land in the said Murraba and therefore had no locus to lay a challenge to the additional 'naka' for the respondent's fields either before the statutory authorities or before the Hon'ble High Court. It was stated that the entire proceedings were taken all through by the petitioners only to harass them. It was further submitted that the majority of the agriculturists in the Murraba in issue had consented to the construction of the additional 'naka'. The levels were rightly measured by the Department and warranted creation of the additional 'naka'. The private respondents pointed out that the application for the sanction of additional 'naka' was made because the agricultural land of the private respondents was at a level higher from the sanctioned 'naka' and this factum prevented proper and optimum utilisation of the sanctioned water to the private respondents by the Irrigation Department. It was submitted that the Executive Engineer had sanctioned the additional 'naka' after conducting a proper enquiry and taking the consent of the majority of the agriculturists in the adjoining fields and taking note of the technical feasibility in the matter. It was submitted that no illegality and irregularity in sanctioning the additional 'naka' could be attributed to the irrigation authorities. It was further submitted that the issue of sanctioning of additional 'naka' was a matter for technical experts and this Court was loath to interfere with such matters. It was submitted that the issue of 'Khal Bharai' and 'Khal Khinchai' was not a legal right and not relevant in the over all context of the need for maximum utilisation of irrigated water by the farmers. 9. I have heard learned counsel for the parties and perused the record. 10. It was submitted that the issue of 'Khal Bharai' and 'Khal Khinchai' was not a legal right and not relevant in the over all context of the need for maximum utilisation of irrigated water by the farmers. 9. I have heard learned counsel for the parties and perused the record. 10. Learned counsel for the petitioners impugned the orders passed by the statutory authorities on the sole ground that the objections of the petitioners to the sanctioned additional 'naka' were not properly considered. Learned counsel while relying upon the judgment of the Hon'ble Supreme Court in the case of M/s. Mahabir Prasad Santosh Kumar v. State of U.P. and Others, reported in AIR 1970 SC 1302 has submitted that a quasi judicial order has to be a reasoned one and quasi judicial authority is obliged to ensure that its decision is reached according to law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency. In my considered opinion, the judgment of the Hon'ble Supreme Court in the case of M/s. Mahabir Prasad Santosh Kumar (supra) has no relevance to the facts in issue nor can be applied to the scheme of the Rajasthan Irrigation and Drainage Rules, 1955. The matter considered by the Hon'ble Supreme Court in the aforesaid case relates to an issue of cancellation of licence issued under the U.P. Sugar Dealers' Licensing Order (1962) which entailed civil consequences for the licencees. In the instant case such a situation does not obtain. The case before this Court is with regard to sanction of an additional 'naka' in a Murabba with which the petitioners have no connection and their civil or statutory rights are not in issue. 11. The matter for consideration before this Court is as to whether the power to sanction additional 'naka' has been legally, fairly and justly exercised. There is no doubt in the facts of the case that the power has been so exercised. It is an admitted case that the agricultural fields of the petitioners are at level higher than the existing 'naka' owing to which optimum utilisation of scarce water resources sanctioned to the private respondents was not being made. There is no doubt in the facts of the case that the power has been so exercised. It is an admitted case that the agricultural fields of the petitioners are at level higher than the existing 'naka' owing to which optimum utilisation of scarce water resources sanctioned to the private respondents was not being made. It is also an admitted fact that the additional 'naka' is at a level higher from the agricultural fields of the private respondents and would facilitate a better optimum utilisation of sanctioning water to the private respondents. 12. In these circumstances, it can be nobody's case that the sanctioning of the additional 'naka' is either arbitrary, unjust or otherwise illegal or contrary to the statutory powers of authorities. It is also important to note that except of the petitioners, majority of the agriculturists holding land in the Murraba in which the additional 'naka' has been sanctioned have not objected to the decision of the Executive Engineer as upheld albeit modified with a condition by the Superintending Engineer. 13. The submission of the learned counsel for the petitioners that the objections of the petitioners have not been considered are without any force. For one, the sanction of additional 'naka' is a matter for experts and it is on record that technical feasibility was the foundation of the sanctioning of the new 'naka'. The dictate of technical feasibility, even necessity rendered all other issues subservient. In any event there was no infringement of the petitioners' rights in law. However, the Superintending Engineer in his order passed in appeal has taken into consideration the issue of possible inconvenience and annoyance to the agriculturists in the adjoining fields if the way over the newly sanctioned 'naka' was not properly maintained and directed that the private respondents would be under an obligation to maintain of way over the newly sanctioned 'naka' in good condition. 14. 14. This Court in the case of Gurmeet Singh and Others v. State of Rajasthan and Others in S.B. Civil Writ Petition No.1705/2007 has held that the decision of the Superintending Engineer as to whether sanctioning a new water course will be beneficial is a matter within his jurisdiction under the Rajasthan Irrigation and Drainage Act/Rules and the Courts do not possess the specialist's knowledge as of the Irrigation Engineer so as to be able to say as to and in what particular manner the jurisdiction of statutory authorities could be exercised for ensuring supply of water to various cultivators. Further, this Court in the case of Shiv Lal v. State of Rajasthan, reported in 1976 WLN 1485 has also reiterated the consistent proposition that, in the domain of experts, writ courts ought not to tread. 15. In view of the facts of the case as have been reflected in the pleadings of the parties as also the decisions of this Court in Gurmeet Singh and Shiv Lal's Case (supra), I am of the view that no ground whatsoever has been made out for interference as prayed for in the writ petition. 16. The writ petition is, therefore, dismissed.Petition dismissed. *******