Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 354 (RAJ)

Hanuman v. State of Rajasthan

2016-03-02

SANGEET LODHA

body2016
JUDGMNET : Mr. Sangeet Lodha, J. This writ petition is directed against the order dated 24.8.15 passed by the Superintending Engineer, Water Resources Circle, Hanumangarh, affirming the order dated 9.7.15, passed by the Executive Engineer, Water Resources Division II, Hanumangarh, cancelling the existing water course from Murabba No. 131/293 to 131/294 and sanctioning a new water course from Murabba No. 133/294 to 131/294 in Kila No. 1 to 5 of each Murabba. 2. Learned counsel for the petitioners contended that the order dated 9.7.15 passed by the Executive Engineer, cancelling the existing water course and sanctioning new water course was ex facie without jurisdiction. It is submitted that a new water course can be sanctioned only after following the procedure laid down under Sections 21 to 28 of the Rajasthan Irrigation & Drainage Act, 1954 (for short "the Act"). Learned counsel submitted that the application with regard to sanctioning of new water course is required to be dealt with by the District Collector exclusively and the Executive Engineer had no jurisdiction to sanction the new water course on its own. In this regard, learned counsel has relied upon a decision of this court in the matter of "Ind Raj v. Executive Engineer", 1986 (2) WLN 57. Learned counsel submitted that the person who is interested in sanctioning the new water course for his agriculture field has not submitted any application and no notice was given to the affected agriculturists nor their consent was obtained before sanctioning the water course. Learned counsel submitted that even the survey regarding the level of the land was not conducted and no compensation has been determined as required under Section 28 of the Act. Learned counsel submitted that the Superintending Engineer has affirmed the order passed by the Executive Engineer without consideration of rival submissions, which is not sustainable in the eyes of law. 3. On the other hand, learned Additional Government Counsel submitted that the new water course has been sanctioned on the request made by the petitioners and other cultivators and therefore, they cannot be permitted to question the legality of the order on any ground whatsoever. It is submitted that the order impugned has been passed by the Executive Engineer after considering all the facts and circumstances and technical aspects of the matter and therefore, the same has rightly been declined to be interfered with by the Appellate Authority. It is submitted that the order impugned has been passed by the Executive Engineer after considering all the facts and circumstances and technical aspects of the matter and therefore, the same has rightly been declined to be interfered with by the Appellate Authority. However, on being specifically asked by the court, learned counsel fairly submitted that there is nothing on record showing that the procedure laid down under Sections 21 to 28 of the Act, has been followed while sanctioning the water course. 4. I have considered the rival submissions and perused the material on record. 5. As per the provisions of Section 21 of the Act, any person desiring of construction of the new water course may apply to the Divisional Irrigation Officer giving necessary details as set out in the said section. If the Divisional Irrigation Officer considers that construction of such water course is expedient and that the statements made in the application are true, shall take the appropriate steps as set out in Section 22 of the Act and shall forthwith publish a notice in every village through which the water course is proposed to be taken. The person interested in the land or water course are entitled to raise objections to the construction of new water course which are required to be decided by the Collector as per the mandate of provisions of Section 24 of the Act and thereafter, the procedure as laid down under Sections 25 to 28 is required to be followed. 6. A perusal of the order dated 9.7.15 reveals that the Executive Engineer has proceeded to sanction the new water course by merely recording its ipse dixit regarding the necessity to sanction of the water course, without following the procedure laid down. 7. In Ind Raj's case (supra), after due consideration of the provisions of Sections 21 to 25 of the Act, this court has categorically held that the Collector is the only competent authority to deal with the application for sanctioning of the new water course and pass final orders thereon. Suffice it to say that the action of the Executive Engineer in sanctioning the water course without following the procedure laid down, is ex facie illegal, arbitrary and without jurisdiction. 8. Suffice it to say that the action of the Executive Engineer in sanctioning the water course without following the procedure laid down, is ex facie illegal, arbitrary and without jurisdiction. 8. A bare perusal of the order impugned passed by the Superintending Engineer reveals that while noticing the arguments advanced by the parties, he has dismissed the appeal by merely recording its ipse dixit, without consideration of the contentions raised and recording the finding thereon and thus, the cryptic order passed by the Appellate Authority deserves to be set aside on this count alone. 9. In the result, the petition succeeds, it is hereby allowed. The order impugned dated 24.8.15 passed by the Superintending Engineer, Water Resources Circle, Hanumangarh and the order dated 9.7.15 passed by the Executive Engineer, Water Resources Division II, Hanumangarh, are hereby quashed and set aside. No order as to costs.