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Rajasthan High Court · body

2019 DIGILAW 1190 (RAJ)

Satpal Singh v. State

2019-04-23

PUSHPENDRA SINGH BHATI

body2019
ORDER : Pushpendra Singh Bhati, J. 1. The petitioners have preferred this writ petition under Article 226 & 227 of the Constitution of India claiming the following reliefs: "It is, therefore, respectfully prayed that this petition for writ may kindly be allowed and the order impugned dated 20.07.2016, as well as the entire proceedings undertaken by the respondents, may kindly be declared illegal and the same may kindly be quashed and set aside, and (B) By an appropriate writ order or direction, respondents may kindly be restrained from removing the proportional distributor established at RD 39705 for chak 15-16 KRW and 17-18 KRW, and from disturbing the irrigation facilities of the petitioners chak 15-16 KRW. (C) Any other appropriate order which is deemed just and proper in the facts and circumstances of the case may kindly be also passed in favour of the petitioners." 2. Brief facts of the case, as noticed by this Court are that the petitioners are agriculturists having their agricultural land in Chak No. 15 and 16 KRW. Chaks 14, 15, 16 & 17 are adjacent villages and all fall in Panchayat Circle, Khatsajwar. 3. The contention of learned counsel for the petitioner is that the petitioners' chak falls at the tail of the Kardwala Minor, and irrigation facility to their chak No. 15 and 16 KRW are from the same KRW minor alongwith the respondents who are holders of Chak 17 and 18 KRW. 4. Learned counsel for the petitioners has submitted that if the impugned order dated 20.07.2016 is implemented, then it shall automatically reduce their share in the water for irrigation being received at Chak No. 15 and 16 KRW. 5. Learned counsel for the petitioners further submitted that since Chak No. 15, 16, 17 and 18 KRW are at the tail, therefore, a similar treatment needs to be meted out to them and removal of the proportionate distribution (PD) and installing of APM (Adjustable Proportional Module) Machine on Chak No. 15 and 16 KRW would reduce their water supply, and on the other hand, it shall increase the water supply at Chak No. 17 and 18 KRW. 6. Learned counsel for the petitioners has shown from the record that the agriculturists of Chak No. 15 and 16 KRW were never given any effective opportunity of hearing, which could enable them to put their stand before the respondent authorities. 7. 6. Learned counsel for the petitioners has shown from the record that the agriculturists of Chak No. 15 and 16 KRW were never given any effective opportunity of hearing, which could enable them to put their stand before the respondent authorities. 7. Learned counsel for the petitioners also submitted that since the petitioners were similarly placed at the tail, like Chak No. 17 and 18 KRW, therefore, water distribution system ought to remain the same for Chak No. 15, 16, 17 & 18 KRW, and as they all share the tail and removal of the proportionate distribution shall unnecessarily cause prejudice to the petitioners, as their water supply shall be adversely effected after the APM Machine is installed on their Chaks, whereas outlets in Chak No. 17 and 18 KRW shall remain open. 8. Learned counsel for the petitioners further submitted that the impugned order dated 20.07.2016 has been mechanically passed, as actual opportunity of hearing has not been given to the petitioners. The relevant portion of the said order dated 20.07.2016 reads as follows: ^^1- lacaf/kr lHkh dk’rdkjksa dks lquk x;k gSA 2- lacaf/kr fdlh Hkh dk’rdkj dk fgr ÁHkkfor ugha gks jgk gSA 3- mDr la’kks/ku ls vU; eks?kksa ij dksbZ foijhr izHkko ugha gksxkA 4- d`”kdksa }kjk foHkkxh; fu;eksa@’krksZa dh iw.kZ ikyuk dh tkosxhA** 9. Learned counsel for the petitioners also submitted that the assurances of their water share not getting compromised may not be actually happening at the ground level, and the difficulty of the constrained water supply would definitely prejudice the petitioners. 10. Learned counsel for the petitioners also opposed the installation of APM Machine at petitioners' Chak No. 15 and 16 KRW, while leaving Chak No. 17 and 18 KRW open. 11. Learned Additional Government Counsel however, has clarified that the modus operandi of the State for installing APM Machine at the tail of the canal is that broadly at the tail, if the APM Machine installed it may lead to over-flooding of the canal and may cause damage to the canal. 12. Learned Additional Government Counsel has also explained through affidavit of an Officer that the changes in the canal are being proposed and the proportionate water distribution is being changed because it was a Kachha canal and there were chances of pilferage of the water, which is being eradicated by the State in the best interest of farmers in question. 13. Learned Additional Government Counsel has also explained through affidavit of an Officer that the changes in the canal are being proposed and the proportionate water distribution is being changed because it was a Kachha canal and there were chances of pilferage of the water, which is being eradicated by the State in the best interest of farmers in question. 13. Learned Additional Government Counsel has also explained that under the RWSLIP Project, the canal is being made pakka, which will not only reduce the chances of pilferage of water but shall also ensure that the farmers get proper distribution of water in question. 14. Learned Additional Government Counsel also submits that the tail end was being extended upto RD46000. 15. Learned counsel for the private respondent has explained that the said steps by the State Government were without prejudice to either of the parties and shall ensure a smoother distribution of water between them. 16. Learned counsel for the private respondent has submitted that a bare look at the map would show that Chak No. 15 and 16 KRW are above Chak No. 17 and 18 KRW, while canal move downwards. 17. After hearing learned counsel for the parties as well as perusing the record of the case, this Court is satisfied that the modernization and betterment of the canal has to take place as per schemes and policies of the State Government. The ever changing techniques have to be adopted as per the technical expert's opinion, and such betterment of the canal cannot be interfered with by this Court in an ordinary circumstance. The existing irrigation system has to be upgraded and updated from time to time by the State in the larger interest of the farmers, as a scarcity of the water, and more and more land to be irrigated is an ever increasing problem before the State of Rajasthan. 18. At the same time, this Court also observes that wherever modernization/upgradation/updation/technical betterment is being done by the State, it ought to be properly explained to the farmers in question, and their views and opinion should also be taken, so as to ensure that there is no misapprehensions in the mind of the persons, who are getting the water. 19. 18. At the same time, this Court also observes that wherever modernization/upgradation/updation/technical betterment is being done by the State, it ought to be properly explained to the farmers in question, and their views and opinion should also be taken, so as to ensure that there is no misapprehensions in the mind of the persons, who are getting the water. 19. Although, this Court believes that the State would not reduce the water supply below sanctioned capacity in respect of the existing setup to the prejudice of any of the farmers and shall make all their efforts to ensure that the farmer concerned himself is satisfied regarding such prejudice not being caused to him by the changes being proposed by the policies of the State Government. 20. In these circumstances, the present petition is disposed of with the direction that the Chief Engineer of the Department concerned shall give opportunity of personal hearing to the representatives of Chak No. 15 and 16 KRW and after giving them such adequate opportunity of hearing and as per the policy, the necessary implementation of the upgradation/changes shall be made. It shall be open for the petitioners to explain their propositions regarding distribution of water in the canal in question. The Chief Engineer concerned is directed to examine the grievances of the respective parties or their representatives from all view points, and thereafter, pass an appropriate speaking order in the matter. The parties (petitioners and respondents) who want to represent themselves before the Chief Engineer, shall appear in the office of Chief Engineer concerned on 17.05.2019 at 10:00 AM alongwith their written submissions as well as oral propositions. Such decision shall be taken at the earliest, and execution of the work at site shall thereafter be conducted as per the policy of the State. 21. It is further noted that the State shall abide by the conditions imposed upon themselves by the previous orders, as per which, they shall firstly ensure that all concerned or their representatives are adequately heard; secondly, no farmer's water rights are prejudiced, and; thirdly, there shall not be a negative impact upon any of the farmers as far as quantum of water supply is concerned, which shall be maintained, strictly in accordance with law under the policy of the State, and other conditions of the Department shall also be fulfilled. Stay Petition No. 9315/2016 also stands disposed of accordingly.