Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2246 (RAJ)

Rajendra Kumar v. State of Rajasthan

2019-08-21

DINESH MEHTA

body2019
ORDER : Dinesh Mehta, J. 1. By way of the present writ petition, the petitioners have challenged the order dated 26.06.2019, passed by Superintending Engineer Water Resources, Circle Hanumangarh, which was passed in an appeal preferred by them, against the order dated 11.02.2019, passed by the Executive Engineer, Water Resources, Division-I, Hanumangarh. 2. The facts appertain to the present writ petition are that Nirmala Devi W/o Tarachand (respondent No. 5 herein) submitted an application before the Executive Engineer, Water Resources, Division-I, Hanumangarh (respondent No. 3 herein) with a request to start her water supply from Kila No. 25, 24, 23 stone No. 141/134 in place of existing Kila No. 3, 4 and 5 of the stone No. 141/135. 3. As per the record available, the respondent No. 3 got conducted public opinion, according to which 79% agriculturists were agreeable to such change; 17% shown their dissent and 4% remained absent. On the basis of such report and having considered the material available on record he proceeded to change the water supply of respondent No. 5 as desired, inter alia, observing that if the water supply to respondent No. 5 is sanctioned, as desired by her, she would be the sole drawer of the water and will be in a better position to irrigate her land, while also holding that it would not adversely affect the rights of other agriculturists of the area. 4. Feeling dissatisfied by the order dated 11.02.2019, passed by the respondent No. 3, the present petitioners preferred an appeal before the Superintending Engineer (respondent No. 2 herein), which came to be rejected by him, inter alia, with an observation that the order passed by the Executive Engineer neither suffers from any infirmity nor would it affect the rights of other agriculturists, while clearly recording that the water supply which the respondent No. 5 has sought is an existing water course, though closed for quite some time. 5. Mr. C.S. Kotwani, learned counsel for the petitioners, challenging the orders impugned passed by the authorities below, contended that the authorities below have erred in not following the provisions of Sections 21 to 25 of the Rajasthan Irrigation and Drainage Act, 1954, inasmuch as the water course can be changed only by the Collector, who is the competent authority and not by the irrigation authorities. 6. 6. In support of his contentions, learned counsel for the petitioners relied upon the judgment of this Court rendered in Inder Raj Vs. Executive Engineer; reported in 1986 RLW 392. 7. He invited attention of the Court towards two reports prepared by Patwar Halka (Annexure-5) and President of the Water Consumer Association (Annexure-7) and pointed out that only 37% agriculturists have given consent, whereas 59% have opposed such proposal. Attention was also drawn towards the report dated 25.04.2018, prepared by the Assistant Engineer (Annexure-6) to bring home the point that 59% of the agriculturists were not satisfied with the proposal. Having highlighted these observations, learned counsel argued that the finding recorded by the Executive Engineer so also by Superintending Engineer, that 75% of the agriculturists are agreeable to the proposal, is per se incorrect. He further submitted that the water supply, which is being given to the respondent No. 5 is from diagonal course/nala in her farm, and the same will prejudicially affect petitioners' rights. 8. I have heard learned counsel for the petitioners and perused the material available on record. 9. Adverting to the first submission made by counsel for the petitioners, in the opinion of this Court, the provisions of Sections 21 to 25 of the Irrigation and Drainage Act, 1954 are not at all applicable in the present case. Indisputably, the water supply, as a result of the new arrangement is to be carried out from the land of the respondent No. 5 herself, hence no person, other than the respondent No. 5 can have concern over such arrangement. 10. A perusal of Sections 21 to 25, particularly Section 21(1) of the Act of 1954, leaves no room for ambiguity that if an applicant is unable to persuade the owners of other land, then he/she can request the Divisional Irrigation Officer to sanction the water course from such other person's land and in such situation only, the provisions of Sections 21 of the Act of 1954 would be attracted. 11. In the present case, the respondent No. 5 (the applicant) had not sought irrigation facilities from the land of any other person, much less, the present petitioners. Hence, in considered opinion of this Court, there was no requirement to follow the procedure provided under Sections 21 to 25 of the Act of 1954 and approval of the Collector. 12. 11. In the present case, the respondent No. 5 (the applicant) had not sought irrigation facilities from the land of any other person, much less, the present petitioners. Hence, in considered opinion of this Court, there was no requirement to follow the procedure provided under Sections 21 to 25 of the Act of 1954 and approval of the Collector. 12. That apart, as per the finding recorded by the authorities below, the water supply sanctioned to the land of respondent No. 5 is through the existing water course, which was closed for sometime. 13. Turning to petitioners' contention based on Annexrues-4, 5 and 6 that 59% of the agriculturists were against such proposal, suffice it to observe that the report of the President, Water Consumer Association reveals that 37% agriculturists were agreeable while 59% refused to sign; the same cannot be construed to be a dissent or refusal per se. 14. It is true that in the joint report prepared by three Patwar Halka (Annexure-5) records that 59% agriculturists were dissatisfied with such proposal which was followed by the report dated 25.04.2018 (prepared by the Assistant Engineer) (Annexure-6). But then, these facts, if existed, were known to the petitioners and the same ought to have been brought to the notice of authorities below. 15. Upon perusal of the impugned orders, even the memo of the appeal filed by the petitioners before the appellate authority, this Court does not find any such assertion or argument. Even the argument regarding non-observance of the provisions contained under Sections 21 to 25 of the Act of 1954 were not advanced. 16. As far as argument of Mr. Kotwani that as a result of new arrangement allowed to respondent No. 5, which is diagonal to her farm, petitioners' right would be adversely affected, is concerned, this Court is of the opinion that firstly, this argument too had not been advanced before the authorities below and even if the same has some substance, then, the irrigation authorities are the best suited or technically equipped to deal with such argument. This Court in exercise of its supervisory jurisdiction, cannot deal with such technical aspect of the matter. 17. Judgment of this Court rendered in case of Inder Raj (supra) does not lend any support to the petitioner. This Court in exercise of its supervisory jurisdiction, cannot deal with such technical aspect of the matter. 17. Judgment of this Court rendered in case of Inder Raj (supra) does not lend any support to the petitioner. The facts recorded therein clearly depict that the applicant in the said case wanted construction of a new water course from such petitioner's land and the applicant had, as matter of fact deposited requisite fee, which obviously was required to be paid under Sections 23 and 24 of the Act of 1954. These facts unequivocally show that the case of Inder Raj (supra) was governed by the provisions of Sections 21 to 25 of the Act of 1954 and the irrigation authorities have, as a matter of fact, proceeded under such provisions; this Court had allowed the writ petition filed by Inder Raj for the reason that the requisite order can be passed only by the Collector. The case cited by learned counsel for the petitioners is, thus, clearly distinguishable on the facts and in view of such distinctions, the case of Inder Raj (supra) does not help the cause of the petitioners. 18. As an upshot of above discussions, this Court does not find any merit in the present writ petition, which is dismissed. 19. Stay Petition No. 11715/2019 also stands dismissed.