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2014 DIGILAW 1111 (RAJ)

Atma Ram v. State of Rajasthan

2014-05-09

GOVIND MATHUR

body2014
JUDGMENT 1. - This petition for writ is directed to challenge the orders dated 8.2.2008, 17.4.2008 and 27.3.2012 passed by the Divisional Irrigation Officer (Executive Engineer), Water Resources Division-II, Hanumangarh; the Superintending Engineer, Water Resources Circle, Hanumangarh and the Collector, Sriganganagar respectively. By the order 8.2.2008 the Divisional Irrigation Officer (Executive Engineer) accepted an application preferred by respondents Sarva Shri Mamraj, Dhanraj, Krishna Lal, Vinod Kumar and Buddhram for transfer of their 'Rakba' to Chak 9 DBM from Chak 24 LGW. The Divisional Irrigation Officer also ordered for providing water course to the respondents named above from the main water course available with 9 DBM. The orders passed by the Superintending Engineer and the Collector are the orders affirming the order passed by the Divisional Irrigation Officer (Executive Engineer). 2. The facts necessary to be noticed are that respondents Sarva Shri Mamraj and Dhanraj preferred applications in the month of January, 2006 to the Executive Engineer, Irrigation Division-II, Hanumangarh Junction for transfer of their land to Chak 9 DBM from Chak 24 LGW. The transfer was sought on the count that they were not receiving adequate water from the water course available with Chak 24 LGW. The Executive Engineer in the capacity of the Divisional Irrigation Officer issued general notices inviting objections for the transfer sought to be made by the private respondents. Several agriculturists of Chak 9 DBM objected for demanded transfer, but the Divisional Irrigation Officer made an order dated 8.2.2008 for transfer as desired by the private respondents and also allowed irrigation facility. 3. Aggrieved by the order passed by the Divisional Irrigation Officer, the petitioner and several other agriculturists preferred appeal before the Superintending Engineer, Water Resources Circle, Hanumangarh and that also came to be rejected on 17.4.2008. The private respondents then moved an application before the Collector to execute the decision taken by the Divisional Irrigation Officer. The petitioner also submitted objections with specific assertion that more than 68% of the agriculturists of Chak 9 DBM are not agreeable for the transfer. Several other objections too were taken by the petitioner including the procedural illegality accepting in awarding transfer of the land to Chak 9 DBM. A prayer was also made to treat the memo of objections as a petition under Section 24 of the Rajasthan Irrigation and Drainage Act, 1954 (hereinafter referred to as 'the Act of 1954'). 4. Several other objections too were taken by the petitioner including the procedural illegality accepting in awarding transfer of the land to Chak 9 DBM. A prayer was also made to treat the memo of objections as a petition under Section 24 of the Rajasthan Irrigation and Drainage Act, 1954 (hereinafter referred to as 'the Act of 1954'). 4. The Collector by the order dated 27.3.2012 affirmed the order dated 8.2.2008 passed by the Divisional Irrigation Officer on the count that the order was passed after hearing the petitioner and the petitioner did not challenge the findings given by the Divisional Irrigation Officer either by way of filing appeal or by way of filing a petition for writ before the High Court. The Collector treated the order passed by the Divisional Irrigation Officer (Executive Engineer) dated 8.2.2008 a final, thus, directed to provide water course to the private respondents in Chak 9 DBM and to close the water course from Chak 24 LGW. 5. While challenging the order passed by the Divisional Irrigation Officer, the Superintending Engineer and the Collector, the submission of learned counsel for the petitioner is that as per the procedure given for transfer of existing water course, the decision would have been taken by the Collector by conducting an inquiry and not by the Divisional Irrigation Officer. As per learned counsel for the petitioner the procedure adopted in the instant matter is contrary to the procedure prescribed under Sections 23 and 24 of the Act of 1954. The other argument advanced is that even by assuming that the procedure adopted was in consonance with the provisions of the Act of 1954, then too the Collector while exercising authority under Section 24 of the Act should have given adequate reasons for not accepting the objections raised by the petitioner. 6. Per contra, as per counsel for the respondents, the private respondents submitted application to the Divisional Irrigation Officer for transfer of existing water course in accordance with sub-section (1) of Section 23 of the Act of 1954 and the Divisional Irrigation Officer after holding necessary inquiry found the transfer necessary for the better management of the irrigation, thus, passed the order dated 8.2.2008. It is asserted that the Collector has given adequate reasons for accepting the findings arrived by the Divisional Irrigation Officer. 7. Heard learned counsel for the parties and considered the rival submissions. 8. It is asserted that the Collector has given adequate reasons for accepting the findings arrived by the Divisional Irrigation Officer. 7. Heard learned counsel for the parties and considered the rival submissions. 8. The change of water course as desired by the private respondents was supposed to be considered by the Collector, Hanumangarh and the concerned Divisional Irrigation Officer in accordance with Sections 23 and 24 of the Act of 1954. The provisions aforesaid read as under:- "23. Application for transfer of existing water course.- (1) Any person desiring that an existing water course should be transferred from its present owner to himself, may apply in writing to the Divisional Irrigation Officer, stating- (i) that he has endeavoured unsuccessfully to procure such transfer from the owner of such water course; (ii) that he desires the said irrigation officer, in his behalf and at his cost, to do all things necessary for procuring such transfer; (iii) that he is able to defray the cost of such transfer. (2) If the Divisional Irrigation Officer considers- (a) that the said transfer is necessary for the better management of irrigation from such water course; and (b) 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 that may become due under the provisions of section 28 in respect of such transfer; and upon such deposit being made, he shall publish a notice of the application in every village. 24. Objection to construction or transfer applied for.- (1)Within thirty days from the 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. (2)The Collector may either reject the petition or may proceed to inquire into the validity of the objection giving previous notice to the Divisional Irrigation Officer of the place and time at which such inquiry will be held. (3)The Collector shall record in writing all orders passed by him under this section and the grounds thereof." 9. (2)The Collector may either reject the petition or may proceed to inquire into the validity of the objection giving previous notice to the Divisional Irrigation Officer of the place and time at which such inquiry will be held. (3)The Collector shall record in writing all orders passed by him under this section and the grounds thereof." 9. From reading of the provisions aforesaid, it is apparent that at the first instance an application is required to be preferred by the person who desires transfer of existing water course to the Divisional Irrigation Officer and after receiving such application the Divisional Irrigation Officer is required to consider the application to satisfy truthfulness of the statements made in the application and further that the transfer desired is necessary for better management of the irrigation from such water course. While arriving at any conclusion, he is also required to publish a notice of application. After publication of such notice, the persons interested in the land or water course to which the notice refers, may submit a petition to the Collector stating their objections in relation to the transfer sought to be made. The Collector may either reject the petition or may proceed to inquire into validity of the objection. The collector is required to record his decision in writing with grounds. 10. In the case in hand, the application was submitted to the Divisional Irrigation Officer, he conducted an inquiry and also arrived at a conclusion for transfer of the 'Rakba' from Chak 24 LGW to Chak 9 DBM. As per Section 22 of the Act of 1954, the Divisional Irrigation Officer after receiving an application and after publishing the notice in this regard would have conducted an inquiry only to ascertain truthfulness of the statements in the application and further that the transfer sought for is necessary for better management of the irrigation. The Divisional Irrigation Officer is having no authority to pass an order for effecting transfer of the existing water course as that authority is available to the Collector under Section 24 of the Act of 1954. 11. In the instant matter the entire procedure taken place is just contrary to the procedure given under the Act of 1954. Here, the application of transfer was submitted to the Divisional Irrigation Officer who at his own conducted the inquiry and passed an order of transfer. 11. In the instant matter the entire procedure taken place is just contrary to the procedure given under the Act of 1954. Here, the application of transfer was submitted to the Divisional Irrigation Officer who at his own conducted the inquiry and passed an order of transfer. The petitioner and several other persons submitted their objections to the claim made by the private respondents with request to treat the memo of objections as a petition under Section 24 of the Act of 1954. The Collector then was required to pass an appropriate order of transfer, but he instead of examining the objections submitted by the petitioner and several other persons affirmed the order passed by the Divisional Irrigation Officer (Executive Engineer) by saying that no challenge was given by the petitioner through appeal or writ petition. The scheme in relation to change of existing water course under Sections 22 and 24 of the Act of 1954 is quite different. As per it, the Divisional Irrigation Officer was required to satisfy himself about truth of the facts averred in the application submitted for transfer and the necessity of the transfer. For doing so, he is required to issue a public notice. After publication of notice the persons effected may submit their objections to the Collector and the Collector either would have rejected the application at the threshold or would have inquired into the objections submitted. He would have made an inquiry by referring the matter to the Divisional Irrigation Officer. In the present case no such procedure has been adhered. The Divisional Irrigation Officer himself considered the application, made the inquiry and also passed the order of transfer of the existing water course. The Collector, instead of considering the issue before him, accepted the order passed by the Divisional Irrigation Officer, who is not authorised for effecting change in existing water course. The procedure adopted is not at all in consonance with the procedure prescribed under Sections 23 and 24 of the Act of 1954. As such, the entire process taken place is illegal. 12. The other submission of learned counsel for the petitioner that the Collector should have passed a reasoned order too is having force. The procedure adopted is not at all in consonance with the procedure prescribed under Sections 23 and 24 of the Act of 1954. As such, the entire process taken place is illegal. 12. The other submission of learned counsel for the petitioner that the Collector should have passed a reasoned order too is having force. From perusal of the document Anx.7, it is apparent that the petitioner raised several objections for transfer of the water course from Chak 24 LGW to Chak 9 DBM, but those have not been taken into consideration. The Collector simply mentioned that no challenge is given by the petitioner to the findings arrived by the Divisional Irrigation Officer, therefore, the findings given have acquired finality, natural consequence of which is the transfer of existing water course from 24 LGW to 9 DBM. Suffice to mention that the Collector under Section 24 of the Act of 1954 exercises quasi judicial powers and, therefore, he is supposed to pass a reasoned and speaking order. His conclusion is required to be supported by definite grounds which are lacking in the instant matter. 13. For the reasons given above, this petition for writ deserves acceptance. Accordingly, the same is allowed. The orders dated 8.2.2008, 17.4.2008 and 27.3.2012 passed by the Divisional Irrigation Officer (Executive Engineer), Water Resources Division-II, Hanumangarh; the Superintending Engineer, Water Resources Circle, Hanumangarh and the Collector, Sriganganagar respectively are quashed. The Divisional Irrigation Officer is directed to initiate the process in relation to transfer of existing water course on basis of the application submitted by the private respondents afresh as per provisions of the Act of 1954.No order to costs.Petition allowed. *******