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2013 DIGILAW 273 (RAJ)

Mahaveer Prasad v. State of Rajasthan

2013-02-01

VIJAY BISHNOI

body2013
JUDGMENT 1. - The petitioners have filed this writ petition while claiming the following reliefs:- "(a) by an appropriate writ, order or direction, the order dated 15.6.99 passed by the District Collector (Annexure-7) may kindly be quashed and set-aside (b) by an appropriate writ, order or direction the respondents may kindly be restrained from interfering from the present system of irrigation of the petitioners from the outlet of chak No.19 SDS-B. (c) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed. (d) Writ petition filed by the petitioners may kindly be allowed with costs." 2. The brief facts of the case are that the petitioners No.1 to 7 are holding agricultural land in Chak No.19 SDS whereas the petitioners No.8 to 11 are holding agricultural land in chak No.20 SDS as the petitioners were not getting proper irrigation water for their fields, due to water losses in the way of long distance of the water courses. They have filed an application before the Divisional Irrigation Officer (Executive Engineer) Irrigation Division-I, Hanumangarh for sanction of a new outlet on the stone line of 18. The Divisional Irrigation Officer, after receiving the said application, issued notices to all the affected persons and has also obtained technical report of the concerned Jiledar, Junior Engineer and Assistant Engineer. The Divisional Irrigation Officer after hearing all the affected persons and after taking into consideration the technical reports and after inspecting the site, sanctioned the new outlet at the stone line of 18 vide order dated 19.12.1998. 3. Being aggrieved with the decision of Divisional Irrigation Officer dated 19.12.1998, Shri Badri Prasad, Ganesha Ram, Dalip Chand, Ram Pratap, Surendra, Ghanshyam, Hemand Ram, Sohan Lal, Surja Ram, Daleep Chand and Raghuveer preferred statutory appeal before the Superintending Engineer, Irrigation Circle, Hanumangarh. The said appeal preferred by the above mentioned persons was dismissed by the Superintendent Engineer vide judgment dated 6.5.1999. The writ petition was preferred before this Court as S.B. Civil Writ Petition No.1979/1999 while challenging the orders dated 19.12.1998 and 6.5.1999 passed by the Divisional Irrigation Officer, Division-I, Hanumangarh and Superintending Engineer, Irrigation Circle, Hanumangarh respectively. This Court after hearing the contesting parties has dismissed the above-mentioned writ petition at the admission stage. The writ petition was preferred before this Court as S.B. Civil Writ Petition No.1979/1999 while challenging the orders dated 19.12.1998 and 6.5.1999 passed by the Divisional Irrigation Officer, Division-I, Hanumangarh and Superintending Engineer, Irrigation Circle, Hanumangarh respectively. This Court after hearing the contesting parties has dismissed the above-mentioned writ petition at the admission stage. The certified copy of judgment dated 8.6.1999 passed in S.B. Civil Writ Petition No.1979/1999 is annexed with the writ petition as Annexure 6. After passing of the judgment dated 8.6.1999, the private respondents No.4 to 6 have filed an application before the District Collector, Sri Ganganagar. The application preferred by the respondents No.4 to 6 was accepted by the District Collector on 15.6.1999 and the District Collector has ordered that the Divisional Irrigation Officer, should proceed with the construction of water course in pursuance of the order dated 19.12.1998 only after acquiring the land required for construction of water courses. 4. Being aggrieved by the order dated 15.6.1999 (Annex.7) passed by the District Collector, the petitioners have preferred this writ petition. 5. Learned counsel for the petitioners Shri Ramandeep Singh has argued that the order dated 15.6.1999 passed by the Collector is perse illegal as the same has been passed without giving any opportunity of hearing to the petitioners, who are affected parties, as the Divisional Irrigation Officer has passed the order dated 19.12.1998 on the application and any interference in the said order without giving any opportunity to the petitioner, is perse illegal and cannot be sustained. It is also argued by the counsel for the petitioner that the District Collector Sri Ganganagar has no jurisdiction to entertain any application preferred on behalf of respondents No.4 to 7 under the Rajasthan Irrigation Drainage Act, 1954 and the Rules made thereunder (hereinafter to be referred as "the Act of 1954). It is further contended by the counsel for the petitioners that the action of the respondents of approaching the District Collector without disclosing the order passed by the Hon'ble Court in S.B. Civil Writ Petition No.1979/1999 decided on 8.6.1999 amounts to malafides. 6. It is further contended by the counsel for the petitioners that the action of the respondents of approaching the District Collector without disclosing the order passed by the Hon'ble Court in S.B. Civil Writ Petition No.1979/1999 decided on 8.6.1999 amounts to malafides. 6. Learned counsel for the petitioners has invited my attention towards the observations made by this Court in judgment dated 8.6.1999 at page 3 to 5 and has argued that in view of the specific finding given by this Court in the judgment dated 8.6.1999, there was no occasion for the Collector to pass the order dated 15.6.1999. Learned counsel for petitioners has further submitted that the order passed by the Divisional Irrigation Officer on 19.12.1998 has already been implemented prior to the issuance of order Annex.7 vide wireless message dated 11.6.1999 (Annex.8) and fixation of Barabandi dated 14.6.1999 (Annex.9). 7. Learned counsel for the petitioner has relied upon the judgments of this Court reported in RLR 1992(2) page 83 (Rajendra Mada and Ors. v. State of Rajasthan and Ors. and AIR 1977 Raj. 1 (Shivlal v. State of Rajasthan and Ors.). 8. The respondents No. 1 to 3 have filed reply to the writ petition and have specifically averred in para No.8 of the reply that:- "With all due respect the order dated 15th June, 99, passed by the District Collector, Sri Ganganagar, is not legal and valid one, and having pace with and harmonious to the express provisions of law, laid down under sections 20, 21, 22, 23 and 24 of the Raj. Irrigation and Drainage Act, 1954. The District Collector, and Magistrate Sri Ganganagar, has/had no jurisdiction to invoke the powers laid down U/s 24 of the Raj. Irrigation and Drainage Act, 1954, in the instant case, because neither New outlet is being constructed over the Agriculture Lands of Shri Ganesh Ram and Shri Banshidhar etc. nor the New Water Course, is being passed through the Agriculture Lands of these persons. The dispute/disputes, in respect of sanctioning New Out-let of Chak No. 19 SDS-B and for the construction of New Water Course, is/are to be decided by the Irrigation Authorities, and they are having exclusive jurisdiction or domain to decide the dispute/ disputes." 9. Per contra learned counsel for the respondents No. 4 to 7 Mr. The dispute/disputes, in respect of sanctioning New Out-let of Chak No. 19 SDS-B and for the construction of New Water Course, is/are to be decided by the Irrigation Authorities, and they are having exclusive jurisdiction or domain to decide the dispute/ disputes." 9. Per contra learned counsel for the respondents No. 4 to 7 Mr. S.L. Jain has argued that the District Collector has all the jurisdiction to pass the order dated 15.6.1999 under the provisions of Section 24 of the Act of 1954. It is further submitted by the counsel for respondents that vide order dated 15.6.1999, the Collector has given a direction only to the effect the water course should only be constructed in pursuance of the order dated 19.12.1998 after providing compensation to the persons whose lands are liable to be acquired for the purpose of construction of new water courses. 10. Learned counsel for respondents No. 4 to 7 has further submitted that the petitioners have an alternate and efficacious remedy under Section 27 of the Act of 1954 to approach Revenue Appellate Authority against the order of District Collector dated 15.6.1999 and, therefore, the writ petition filed by the petitioners is not maintainable in view of the availability of alternate remedy. 11. Learned counsel for respondents No. 4 to 7, Mr. Jain has feebly tried to assail the findings given by this Court in the judgment dated 8.6.1999 while claiming that this Court has wrongly observed in the judgment dated 8.6.1999 that no new water course is going to be constructed. However, Mr. Jain has frankly argued that the order dated 8.6.1999 has not been challenged further in any other forum and, therefore, it has attained finality. Mr. Jain, learned counsel for the respondents No.4 to 7 has further argued that the order dated 19.12.1998 has already been implemented and the claim of the petitioners that the same has not been implemented, is incorrect. Mr. Jain has further contended that the writ petition No.1979/1999 decided on 8.6.1999 has not been filed by the respondents No.4 to 6 and, therefore, it cannot be said that they are estopped from making any application before the District Collector. 12. The counsel for the State has supported the petitioners and reiterated the stand taken in reply. 13. I have considered the rival submissions and carefully examined the material available on record. 12. The counsel for the State has supported the petitioners and reiterated the stand taken in reply. 13. I have considered the rival submissions and carefully examined the material available on record. It is pertinent to note here that the petitioners have submitted an application for redressal of their grievance regarding the irrigation facilities before the Sub- Divisional Officer, Hanumangarh and the Sub-Divisional Officer, Hanumangarh after hearing the charges has passed the order dated 19.12.1998. The respondent No.4 Shri Ganesha Ram has been shown as non-applicant in the order dated 19.12.1998. In the appeal preferred against the order dated 19.12.1998, Shri Ganesha Ram is one of the appellants. Though from the certified copy of the judgment dated 8.6.1999 passed in S.B. Civil Writ Petition No.1979/1999, it is not clear that how many persons have preferred this writ petition but the claim of the petitioners that Badri Prasad is real uncle of respondent No.5 Banshidar has not been disputed by the respondents No.4 to 6 and, therefore, it cannot be said that the persons, who have preferred the writ petition No.1979/1999 before this Court and the persons, who have filed application before the District Collector resulted in passing of the order dated 15.6.1999 are not having common interest. Moreover, in view of the clear cut findings given by this Court in the judgment dated 8.6.1999 holding that no injury is likely to cause to the petitioners on acceptance of the impugned proposal. The contention of the respondents No.4 to 6 that they are really affected by the order dated 19.12.1998 is not tenable. It is pertinent to note hear that from the bare perusal of the order dated 15.6.1999, it is nowhere borne out that the answering respondents have disclosed about the judgment dated 8.6.1999 before the Collector, Sri Ganganagar at the time of hearing of the application. It is also not in dispute that the order dated 8.6.1999 has not been challenged by any of the parties before any form and has attained finality, therefore, in such circumstances the order passed by the District Collector, Sri Ganganagar dated 15.6.1999 is not tenable. 14. It is also not in dispute that the order dated 8.6.1999 has not been challenged by any of the parties before any form and has attained finality, therefore, in such circumstances the order passed by the District Collector, Sri Ganganagar dated 15.6.1999 is not tenable. 14. The objection of the learned counsel for the respondents No.4 to 6 regarding the availability of alternate remedy is also considered but for rejection as such no such remedy is available to the petitioners to approach the Revenue Appellate Authority against the order passed by the District Collector. 15. The contention of learned counsel for respondents No. 4 to 7 is to the effect that the District Collector has jurisdiction to pass the impugned order under Section 24 of the Act of 1954 is bereft of any merit as the powers under Section 24 can only be invoked when the procedure provided under Sections 20, 21, 22 and 23 is adopted. The State Government has specifically contended in their reply that in the instant case neither new outlet is being constructed over the agricultural land of answering respondents nor new polls, are being passed through the land of the respondents, the provisions of Section 24 are not at all applicable. Moreover, in view of the definite findings given by this Court in the judgment dated 8.6.1999 that no injury is likely to be caused to the petitioners by the new proposal, then in such circumstances, it is difficult to hold that the Collector has jurisdiction to pass the order dated 15.6.1999. 16. In view of above circumstances, it is held that the District Collector, Sri Ganganagar has no jurisdiction to pass the order dated 15.6.1999 while exercising powers under Section 24 of the Act of 1954 and it is also held that the order passed by the District Collector, Sri Ganganagar dated 15.6.1999 is also bad as before passing of the said order, no opportunity of hearing was provided to the petitioners and, therefore, the writ petition deserves to be allowed and the impugned order passed by the District Collector, Sri Ganganagar dated 15.6.1999 (Annex.7) is hereby quashed and set aside. 17. Accordingly, the writ petition is allowed. No order as to costs.Petition Allowed. *******