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2012 DIGILAW 608 (RAJ)

Banwari Lal v. State of Rajasthan

2012-03-06

MOHAMMAD RAFIQ

body2012
Hon'ble RAFIQ, J.—This writ petition has been filed by the petitioners aggrieved by the order passed by the Superintending Engineer, Water Resources Department, Hanumangarh dated 24.3.2011, who while setting aside the order passed by the Executive Engineer, Water Resources, Circle-I Hanumangarh has remanded the matter back with the direction to decide it afresh after taking level of the land and hearing the contesting parties. 2. Shri RDSS Kharlia, learned counsel for the petitioners has argued that existing water course with regard to which the objection was raised by the private respondent has been operating for last 40 years hence, the objection is highly belated and not bonafide. It is argued that as per second proviso to Section 21 of the Rajasthan Irrigation and Drainage Act, 1954 (shall hereinafter be referred to as the "Act of 1954"), which provides that any person desiring construction of a new water course may apply in writing to the Divisional Irrigation Officer stating - (i) that he has endeavored unsuccessfully to acquire from the owners of the land through which he desires such water course to pass, a right to occupy on much of the land as will be needed for such water course. Section 22 thereof provides that if the Divisional Irrigation Officer considers (1) that the construction of such water course is expedient; and (2) that the statements in the application are true, he shall call upon the applicant to make such deposit as the Divisional Irrigation Officer considers necessary to defray the cost of the preliminary proceedings, and the amount of any compensation which he considers likely to become due under Section 28. 3. Learned counsel for the petitioners then referred to Rule 4 of the Rajasthan Irrigation and Drainage Rules, 1955 (shall hereinafter be referred to as the "Rules of 1955"), which inter-alia provides that (1) all applications for water to be supplied for irrigation through an existing channel, or through a channel to be constructed by the applicant, shall be made as nearly as may be in Form 1 and (2) a notice under Sections 20, 22 and 23 shall be issued by the Divisional Irrigation Officer to all persons concerned in Form 2. The Executive Engineer on his own has no power either to alter the existing water course or to create a new water course. The Executive Engineer on his own has no power either to alter the existing water course or to create a new water course. In this connection, learned counsel for the petitioner has relied on the judgment of this Court in Indar Raj vs. Executive Engineer : RLW 1986 392. 4. Shri RDSS Kharlia, learned counsel for the petitioners has argued that respondents have deliberately filed 22 appeals to show as if several persons are affected by non-supply of water through the disputed water course. Most of them are not affected because their lands are situated much before the water course. They draw water from other sources than the existing water course. Appeals have been multiplied only with a view to putting undue pressure on the authorities for settling personal vendetta. The existing water course was created way back in 1966 and has been operating for last more than 40 years as per the chuk plan register and blue print, which was sanctioned after making necessary amendments in the report. 5. Shri L.K. Purohit, learned Additional Government Counsel has opposed the writ petition and has argued that the Superintending Engineer has merely remanded the matter to the Executive Engineer for deciding it afresh after hearing all the parties and after taking into consideration the material on record, measuring existing levels and hearing all the concerned parties. Scope of enquiry by the Executive Engineer is therefore limited. If he decides to suggest any change in the existing water course, he would have to make a reference to the Collector, which has to be then dealt with in accordance with Sections 21 and 22 of the Act of 1954. If however, he recommends for supply of water to the objector-applicant from the existing water course, he would merely make recommendation to the Superintending Engineer as per Section 20. In either case, his order would not be acted upon unless confirmed by the Superintending Engineer, which is what has been provided by Section 20 of the Act. Writ petition therefore be dismissed. 6. Shri Vijay Jain, learned counsel appearing for the private-respondents has opposed the writ petition and argued that Executive Engineer has not passed any order on 14.7.1966 and has not sanctioned the water course in the Kulla line of Stone No. 127/189 to 127/187 of Chak 8 DLP. Copy of the order dated 14.7.1966 has not been produced by the petitioner. Shri Vijay Jain, learned counsel appearing for the private-respondents has opposed the writ petition and argued that Executive Engineer has not passed any order on 14.7.1966 and has not sanctioned the water course in the Kulla line of Stone No. 127/189 to 127/187 of Chak 8 DLP. Copy of the order dated 14.7.1966 has not been produced by the petitioner. Respondents merely submitted an application to the Executive Engineer for providing irrigation facility for their agriculture land of the chuk. It is denied that there is any bar for the Executive Engineer or for that matter, the government in either considering the prayer for change of water course or in supplying water to the other adjoining land holders from the existing water course. Mere delay cannot be a reason for denying such a jurisdiction to the authorities. 7. I have given my anxious consideration to the rival submissions of the parties and perused the material available on record. 8. What is impugned in the present writ petition is the order of the Superintending Engineer dated 24.3.2011, who decided the appeal preferred by the respondents against the order of the Executive Engineer dated 22.3.2010. The Executive Engineer in that order had rejected the application filed by the respondents in which order, he has categorically admitted that the order dated 14.7.1966 is not available in the records of his office. Yet, he has arrived at the conclusion that chuck register and blue print of the technical project, water course and `nakas' have been indicated in the killa line. He therefore did not have any authority to review his own order particularly when the application has been preferred with enormous delay. It was this order that has been set-aside by the Superintending Engineer in appeal filed by the private Respondents with direction to the Executive Engineer to decide it afresh taking into consideration the record and existing level of the land after providing opportunity to both the parties. 9. Reading of the first order of the Executive Engineer reveals that respondents submitted an application stating that the water course was sanctioned from Stone No. 127/189 to 127/187 and the area was earlier full of sand-dunes, which has now been developed. Therefore, the water course should be taken from Stone No. 127/189 to 127/187 and the land holders are agreeable to give way through their land. Therefore, the water course should be taken from Stone No. 127/189 to 127/187 and the land holders are agreeable to give way through their land. What the Executive Engineer will therefore have to decide would be whether it is a case justifying supply of water through the existing water course or a new water course has to be created. 10. The judgment of this Court in Indar Raj supra arose out of a case in which the application by the concerned party was made under Section 24 of the Act, which provides that an objection to construction or transfer should be submitted within thirty days upon publication of a notice under Section 22 or Section 23, as the case may be. Any person interested in the land or water course to which the notice, refers, may apply to the Collector by petition, stating his objection to the construction or transfer for which application has been made, which stage will reach in the present case, if and when the Executive Engineer refers the matter to the Collector recommending change of the water course. This Court in the cited case of Indar Raj supra has held that in such like situation, the procedure laid down in Sections 22, 24 and 25 will have to be followed and Collector alone can pass a final order after service of notice on the person interested in accordance with Rule 4 of the Rules of 1955. If it is treated to be a case of supply of water from the existing water course, he shall have to deal with the matter under Section 20. If however, he recommends for a new water course, he shall have to in that event follow the procedure contained in Section 21 and 22 of the Act at which stage, he will have to refer the matter to the Collector. 11. In Gurdeep Singh vs. Superintending Irrigation Officer & Ors. : RLW 1990(2) 460, this Court was dealing with a case wherein recommendation made by the Executive Engineer for transfer of a land of particular chuk to another chuk, in other words, from existing water course, for irrigation purposes was not confirmed by the Superintending Engineer. It was held by this court that such matter would be covered by Section 22 of the Act and not by Rule 11 of the Rules of 1955. 12. It was held by this court that such matter would be covered by Section 22 of the Act and not by Rule 11 of the Rules of 1955. 12. In Jaimal Ram vs. The State of Rajasthan & Ors. : 1977 WLN (UC) 274, this Court held that allowing an extra land to be irrigated from existing outlet, does not amount to altering distribution system and therefore it would be covered by Section 20. 13. Mere fact that a long period of more than 40 years has elapsed from the date the existing water course was sanctioned i.e. 14.7.1966, does not in any manner affect the power of the government to either extend the existing water course further or to consider providing additional outlets from the existing water course or to even create new water course but in any case, initial enquiry for that purpose has necessarily to be made by the Executive Engineer, which shall form basis for ultimate decision of the competent authority in this behalf. 14. However, scope of enquiry by the Executive Engineer in this case would be merely confined to examining whether the water course should be extended from killa line of Stone No. 127/189 to 127/187. In making that enquiry, the Executive Engineer would have to provide opportunity of hearing to all concerned and if eventually he decides to so recommend, then would arrive the stage of following the procedure contained in Sections 21, 22, 23 and 24 of the Act. Mere fact that existing water course was sanctioned way back in 1966 (which fact is disputed by the private respondents because of non-availability of record/sanction order), would not debar the State functionaries from considering such an application filed by the private respondents. Even if the Executive Engineer is satisfied about the sanction of the water course vide order dated 14.7.1966, he shall have to nevertheless examine advisability of shifting existing water course from killa line of Stone No. 127/189 to 127/187 as demanded by the respondents and after making such an enquiry, he may or may not recommend that but that would be dependent upon various factors including of the existing levels of land, which too he has to measure as per the order passed by the Superintending Engineer. 15. In view of the discussion made above, I do not find any merit in this writ petition, which is accordingly dismissed.