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2016 DIGILAW 300 (RAJ)

Sadhu Ram v. State of Rajasthan

2016-02-19

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. 1. Though the matters comes on an application filed by the respondents for vacating the interim order, the parties have been finally heard on the writ petition. 2. This writ petition has been filed by the petitioner under Article 227 of the Constitution of India aggrieved against orders passed by the two courts below, whereby the application filed by the petitioner under Order 39, Rule 1 and 2 CPC and appeal arising therefrom have been rejected. 3. The petitioner filed a suit for permanent injunction against the State and its authorities, where after respondent Nos. 6 to 9 were impleaded as party to the suit. 4. It was inter-alia, claimed in the suit that petitioner has constructed a wall about six years back on his own land and the respondents, with a view to construct permanent water course, were seeking to demolish the said wall. Allegations were made that the water course was sought to be created without following the due procedure as prescribed under the Irrigation and Drainage Act, 1954 ('the Act') and the Rules, 1955 and relief was sought seeking injunction against the respondents not to demolish the boundary wall for constructing the water course. Along with the suit, an application under Order 39, Rule 1 and 2 CPC seeking temporary injunction was filed. 5. The application was opposed by the respondent-State, inter-alia, indicating that a Chak Plan has been approved and for ensuring that the loss of water is minimum and all the agriculturists can get better irrigation facilities, the water course is being constructed as per the said Chak Plan and the same is being used for the purpose of irrigation facility which are situated in the said Chak. It was prayed that the application be dismissed. 6. The respondent Nos. 6 to 9 also filed reply and inter-alia submitted that they were getting water from the existing temporary water course and as soon as the petitioner, who is an engineer, came to know about approval of the permanent water course, he has raised the construction and tress passed on the land and stopped the current water course. 7. 6 to 9 also filed reply and inter-alia submitted that they were getting water from the existing temporary water course and as soon as the petitioner, who is an engineer, came to know about approval of the permanent water course, he has raised the construction and tress passed on the land and stopped the current water course. 7. After hearing the parties, the trial court by its order dated 20.10.2015, came to the conclusion that if the petitioner was permitted to raise the boundary wall, the other agriculturists would not get the irrigation facility as the petitioner has, by raising the boundary wall, stopped approved water course. 8. It was also observed that if the petitioner was aggrieved against the action of the respondents, he could take action under the provisions of the Act. The Court also noticed from the photographs produced that on the land of the petitioner, there was permanent water course and thereafter from petitioner's land, a temporary water course was existing from which the respondent Nos. 6 to 9 were getting irrigation facility and came to the conclusion that the petitioner was seeking to stop the water course by illegally raising the wall and, therefore, the petitioner had no prima facie case in his favour. The issues relating to balance of inconvenience and irreparable injury were also held against the petitioner. 9. Feeling aggrieved, the petitioner filed appeal. The learned District Judge after hearing the parties, came to the conclusion that as the revised Chak Plan contains signatures of Executive Engineer, Superintendent Engineer and other departmental officers, it cannot be said that the same was illegally or fraudulently prepared and once the Chak Plan has been prepared for the purpose of water supply to the agriculturists, it is not evident that some new water course was being constructed. 10. The appellate court also came to the conclusion that the present was not a case of changing the existing water course and the dispute pertained to obstruction of the approved water course and, therefore, the plea raised by the petitioner was declined and consequently, the appeal was dismissed. 11. It is submitted by learned counsel for the petitioner that the entire approach of the two courts below is incorrect inasmuch as, they have assumed certain things which are not existing. 11. It is submitted by learned counsel for the petitioner that the entire approach of the two courts below is incorrect inasmuch as, they have assumed certain things which are not existing. It was submitted that the provisions of Sections 21 to 28 of the Act and Rule 11 of the Rules have not been followed, inasmuch as, the authorities have not even initiated the process for changing the water course; the allegation about obstructing permanent water course is incorrect, inasmuch as, the boundary wall is existing for over six years and there has been no compliant in this regard. 12. Further submissions were made that the two courts below have not properly considered the issue regarding the irreparable injury, inasmuch as, if the wall is demolished and ultimately in the suit it is held in petitioner's favour that the action of the respondents was against law, the petitioner can't be compensated and, therefore, also the orders impugned deserve to be set aside. 13. Learned counsel appearing for the respondent-State supported the order impugned. It was submitted that for the purpose of better irrigation facility, the revised Chak Plan has been prepared and the respondents were implementing the said Chak Plan and were initially making the temporary water course as permanent for the purpose of giving better irrigation facility. 14. It was submitted that on account of the action of petitioner, the work being undertaken by the respondents is hampered and if the petitioner succeeds, the other agriculturists of the Chak would suffer and, therefore, the order does not call for any interference. 15. Learned counsel appearing for respondent Nos. 6 to 9 submitted that the entire plea raised by the petitioner about existence of the wall for six years is baseless, in fact the petitioner started raising construction after coming to know that revised Chak plan is being implemented and the respondents raised objections in this regard and notices were issued to the petitioner. Petitioner has neither responded to the said notice nor has questioned the said notice. 16. It is submitted that the existing water course is causing inconvenience as the same is temporary and the petitioner is not entitled to raise any objection in this regard and, therefore, the two courts below were justified in coming to the conclusion that petitioner has no prima facie case and has rightly rejected the application. 17. 16. It is submitted that the existing water course is causing inconvenience as the same is temporary and the petitioner is not entitled to raise any objection in this regard and, therefore, the two courts below were justified in coming to the conclusion that petitioner has no prima facie case and has rightly rejected the application. 17. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 18. Both the courts have concurrently found with cogent reasons that the temporary water course is in existence and the State was seeking construction of a permanent water course and if the wall constructed by the petitioner/being constructed by the petitioner was permitted, the same would obstruct the water course and the other agriculturists of the Chak would suffer on account of such obstruction. The plea raised by the petitioner regarding violation of provisions of law has also not found favour with the courts below, as they were of the opinion that present was not a case of creating and/or altering the existing temporary water course. 19. In view of the categoric findings recorded by the two courts below, which despite vehement submissions, learned counsel for the petitioner has not been able to indicate perversity therein, no interference is required. 20. So far as the submissions made by learned counsel for the petitioner regarding irreparable injury is concerned, besides the fact that as prima facie case itself has not been found in favour of the petitioner, the issues of balance of inconvenience and irreparable injury goes in oblivion, however, if the issues are considered independently, the demolition of wall can be compensated by way of payment in case ultimately it is found that the petitioner was entitled to maintain/construct the said boundary wall, however, if the respondents are deprived of the water and they are not able to irrigate their lands, that aspect cannot be compensated by money and, therefore, the said submission also has no basis. 21. In view of above discussion, there is no substance in this writ petition, the same is, therefore, dismissed. 22. 21. In view of above discussion, there is no substance in this writ petition, the same is, therefore, dismissed. 22. It goes without saying that the observation made above by this Court have been made for the purpose of disposal of the present writ petition arising out of the application under Order 39, Rule 1 and 2 CPC and the same would not effect the final outcome of the suit which is pending before the trial court and any proceeding before the irrigation department.