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2019 DIGILAW 46 (RAJ)

LABH SINGH v. STATE OF RAJASTHAN

2019-01-04

SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. Through this writ petition under Article 226 of the Constitution of India, the petitioner Labh Singh and others, being agriculturists of tehsil Sangaria getting irrigation facility for their fields from the Karni Singh Distributory (hereinafter referred to as 'KSD'), have approached this court with the following prayers :- (1) to assail the exercise of modernization of KSD being undertaken by the respondents by following the capacity statements Annex.P/3 dated 28.07.2017 issued by the Executive Engineer, Water Resources Department and the capacity statement Annex.P/4 dated 08.06.2018 issued by the Superintending Engineer, Water Resources Department; (2) to direct the respondents to constitute a committee to prepare a fresh capacity statement of the KSD before modernizing the same; and (3) to direct the respondents to demolish the construction made upto 9 KSD on basis of the impugned capacity statement dated 28.07.2017 and 08.06.2018 and to restructure the same after procuring the fresh capacity statement prepared by the competent committee/authority. 2. Mr. H.S. Sidhu, learned counsel representing the petitioners, vehemently and fervently urged that as per Rule 11 of the Rajasthan Irrigation and Drainage Rules, power to alter, in any manner the existing irrigation system vests exclusively in the State Government. He also relied upon the Rajasthan Farmers Participation in Management of Irrigation System Act, 2000 (hereinafter referred to as 'the Act of 2000') and urged that as per the provisions of this statute, only the competent authority as defined under Section 2(1)(c) of the Act is authorized to recommend changes in the existing irrigation system. In support of his contentions, Mr. Sidhu relied upon the Division Bench judgment in the case of Jarnel Singh & Anr. Vs. State of Rajasthan & Ors., (1992) 1 RajLW 362 and urged that any action of opening, closing, raising and shifting of outlets or change in alignment of the irrigation system is to be strictly undertaken by adhering to the provisions of the Act and that such changes can not be introduced save with an explicit order of the State Government as per Rule 11 of the Rajasthan Irrigation and Drainage Rules, 1955. He urged that the capacity statements prepared by the Executive Engineer and the Superintending Engineer cannot be made the basis of bringing around changes in the existing irrigation system because such action runs contrary to the mandatory requirements of the Act and the Rules. He urged that the capacity statements prepared by the Executive Engineer and the Superintending Engineer cannot be made the basis of bringing around changes in the existing irrigation system because such action runs contrary to the mandatory requirements of the Act and the Rules. He further urged that the total available quantity of water is bound to be reduced significantly because of the faulty design prepared by the respondents for restructuring and fresh lining of the canal. He further urged that construction which has been made so far is contrary to the requirement of law and should ordered to be demolished and the earlier position restored. As per him, it is a fit case, wherein this court should restrain the respondents from proceeding further with the construction/relaying of the canal and to direct them to get prepared fresh capacity statement from the competent authority in terms of Rules of 1955 and to permit the work in question to be proceeded only after taking due permission from the State Government in terms of Rule 11 of the Rules of 1955. 3. Per contra, Mr. Narendra Singh Rajpurohit, learned AGC, representing the respondents, has filed file a detailed reply to the writ petition taking a stand inter alia that the entire exercise of fresh lining of the KSD is a part of modernization/renovation/repair process, which has become inevitable and unavoidable with efflux of time. The water channels as it exist today are unlined and exposed at numerous places and heavy silting at various places has caused blockages leading to inefficacy of the irrigation system. The existing canal is 60 years old and thus, the necessary modernization process has been initiated as per law after observing all the requisite formalities. The plan comprises of minor realignments and lining of the KSD with PCC blocks so as to control and prevent water losses, leakages, thereby ensuring that the tail end cultivators get adequate water supply for their fields. The capacity statements prepared by the Executive Engineer and the Superintending Engineer were forwarded to competent authority of the State Government, who considered the same before issuing the administrative sanction for executing the work. The capacity statements prepared by the Executive Engineer and the Superintending Engineer were forwarded to competent authority of the State Government, who considered the same before issuing the administrative sanction for executing the work. It is also stated that the State Government has taken huge loan from the World Bank under the Rajasthan Water Sector Livelihood Improvement Project (RWSLIP) and modernization of the KSD from 0 km to 3.935 km has already been completed and the remaining work for 3.935 km to 33.336 km has also been started under the administrative and financial sanction issued by the State Government vide letter dated 24.05.2017. The lining of various stretches of the canal from km 3.935 to 7.5000 and km 8.080 to 8.530 and km 8.880 to 9.650 have already been executed. The entire work is being undertaken under the financial and administrative sanction of the State Government and the aspersion cast by the petitioners that the modernization work is being undertaken in an illegal fashion without proper sanction of the State Government is repelled on the strength of the sanction letter dated 24.05.2017 issued by the Deputy Secretary to the Chief Engineer, Government of Rajasthan. Various sections of the canal to be modified have been expressly covered in this sanction letter. Reliance is also placed by the respondents on the circular dated 01.10.2009 issued by the Chief Engineer, Water Resources Department, wherein it is stipulated that the power to approve longitudinal section of all canals upto 350 cusecs has been conferred upon the respective Superintending Engineers. With reference to the averments made in para 3 of the reply, Mr. Rajpurohit, learned AGC, submitted that the capacity of the Karni Singh Distributory is well below 350 cusecs and as such, the administrative powers to deal with this canal system vests with the Superintending Engineer, who has approved the requisite changes necessary for modernization of the canal after taking sanction from the competent authority of the State Government. He drew the court's attention to the comparative capacity statement (before and after modernization) mentioned in para 3 of the parawise reply, which reads as below : S.No. Description Earthen canal Lined canal 1. FSL Dy 628.72 feet 191.76 M 629.13 feet 2. Bed Width 34.00 feet 12.07 feet 3. F.S.D. 3.60 feet 5.25 feet 4. W.H. at outlet 1 KSD 1.64 feet 2.03 feet 5. Water allowances 2.4 Cs/1000 Acres 3.00 cs/1000 Acres 4. FSL Dy 628.72 feet 191.76 M 629.13 feet 2. Bed Width 34.00 feet 12.07 feet 3. F.S.D. 3.60 feet 5.25 feet 4. W.H. at outlet 1 KSD 1.64 feet 2.03 feet 5. Water allowances 2.4 Cs/1000 Acres 3.00 cs/1000 Acres 4. He contended that the efficacy of the canal system will be significantly enhanced and the losses of water will be appreciably diminished once the modernization process and lining of the canal is completed. The due discharge of water will increase by 25%, which will be extremely beneficial to the petitioners and so also to the environment of the entire irrigation system. He further urged that the entire process of modernization is being undertaken after getting project reports prepared from a professional agency. These project reports have been examined by the authorized officers/ competent authority of the Water Resources Department, who have been expressly authorized by the State Government in this behalf. The Presidents of the concerned Water Users Associations have also given consent for the proposed lining of the canal. On the strength of these submissions and relying upon this court's judgments in the cases of Jagat Pal & Ors. Vs. State of Rajasthan (S.B. Civil Writ Petition No.999/2017 decided on 02.07.2018) and Pal Singh & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.13767/2017 decided on 08.05.2018), he urged that the entire endeavour of the petitioners is to somehow or the other stall the modernization process of the canal for their own vested interests : the modernization process will result into fair distribution of water to all the entitled agriculturists; reduce water losses and thereby optimize the available quantity of water and put an end to pilferage and enhance the canal capacity. He further urged that the modernization of the irrigation system is part of public policy and hence, the petitioners cannot seek interference by this court in such policy matters by invoking the writ jurisdiction. On these grounds, he sought dismissal of the writ petition. 5. I have given my thoughtful consideration to the arguments advanced at bar and have perused the material available on record. 6. The principle bone of contention of Mr. Sidhu, learned counsel representing the petitioner was that any effort of modernization of the canal; be it lining, correction in alignment etc. 5. I have given my thoughtful consideration to the arguments advanced at bar and have perused the material available on record. 6. The principle bone of contention of Mr. Sidhu, learned counsel representing the petitioner was that any effort of modernization of the canal; be it lining, correction in alignment etc. has to be preceded by sanction from the Project Committee/State Government in terms of the Rajasthan Irrigation and Drainage Act, 1954, Rajasthan Irrigation and Drainage Rules of 1955 and the Rajasthan Farmers' Participation in Management of Irrigation System Act, 2000. His contention was that no change in established water system is permissible, save with the express permission of the State Government in light of the amended Rule 11 of the Rules of 1955 and also that steps of modernization have to be preceded by express permission of the Project Committee constituted under the Act of 2000. 7. The relevant statutory provisions, on which Mr. Sidhu placed reliance, are quoted herein below for read reference :- "Rajasthan Farmers' Participation in Management of Irrigation System Act, 2000 : 2. Definitions- (1) In this Act, unless the context otherwise requires:- (a) ... (b) ... (c) 'Competent Authority' means the Authority appointed under section 22; 23. Appointment of Project Authority and his functions - (1) The Government may by notification, appoint such officer, as may be considered necessary, to be the Project Authority for the project area for the purposes of this Act. (2) The project authority appointed under sub-section (1) shall perform following functions within his area of operation :- (a) delineation of Water Users' Area and its territorial constituencies; and delineation of distributary areas; (b) cause arrangements for the election of Chairperson, President, Member of Managing Committee of Farmers' Organisation; (c) recall a Chairperson or a President or a Member of Managing Committee of a Farmers' Organisation against whom the motion is carried out and will cause arrangements for filling-up such vacancy within one month; and (d) will supervise the functioning of all the competent authorities." "Rajasthan Irrigation and Drainage Rules of 1955 : [11. Distribution of canal irrigation. [(1) The Divisional Officer shall not authorise outlets on any canal exceeding the authorised or actual canal capacity, whichever is less, so that on release, water may run in the canal from head to tail. Distribution of canal irrigation. [(1) The Divisional Officer shall not authorise outlets on any canal exceeding the authorised or actual canal capacity, whichever is less, so that on release, water may run in the canal from head to tail. No Irrigation from canal will be drawn from outlets other than those authorised by the Divisional Irrigation Officer. Outlets not so authorised may be removed and no claims in this respect shall lie against the Government. Persons violating this rule will be liable to punishment under Section 55(9) of the Act.] (2) No change in the shape, size and location of outlets or any hydraulic structure or in the established procedure for water distribution thorugh canal shall be made without the orders of the State Government. (3) Water User Associations shall impose Barabandi (Rotation Irrigation) of permanent nature in concerned 'Chak' after giving adequate publicity through Panchayats. In case where Water User Associations are not formed, concerned Executive Engineer shall exercise this power. Breach of such Barabandi shall be an offence punishable under Section sub-section (9) of section 55 of the Act. (4) Permanent turn (Bari) shall not be changed before twelve months. It may be shifted by twelve hours by general orders passed by Water User Associations (WUAs) every year. In case where Water User Associations are not formed, concerned Executive Engineer shall exercise this power. In case of sale of land, the slip of permanent turn (Bari) shall be deemed to be transferred in the name of purchaser concerned." 8. Having perused the above-referred statutory provisions, this court is of the firm view that contention of Mr. Sidhu that the impugned action is bad in the eye of law because any act of extension/improvement/renovation/modernization etc. is exclusively within the domain of the State Government/the project committee and that no such approval was taken before chalking out the project report, is per se untenable. True it is that as per the Section 19 of the Act of 2000, the jurisdiction to approve the plan of modernization etc. of the irrigation system has been conferred upon the project committee, but such project committee appears to be existing only on paper. No definition of project committee is given in Section 2 of the Act of 2000. True it is that as per the Section 19 of the Act of 2000, the jurisdiction to approve the plan of modernization etc. of the irrigation system has been conferred upon the project committee, but such project committee appears to be existing only on paper. No definition of project committee is given in Section 2 of the Act of 2000. Unlike Section 23 of the Act, which provides for appointment of project authority, there is no stipulation in the Act as to in what manner shall the project committee be constituted. Thus, the provisions of the Act of 2000 and to be particular, Section 19 flatter to deceive because it does not stipulate the procedure for appointing any such committee nor is the constitution of such competent committee provided in the definition clause of the Act. In the entire framework of the writ petition, there is no such averment that any such project committee was ever constituted or exists. When no committee exists, manifestly there cannot be any occasion to seek approval thereof. The Superintending Engineer and the Executive Engineer are the authorities competent to exercise powers in relation to irrigation system as per Section 3 (1) of the Act of 1954. Section 6 of the Act, which reads as below, empowers the irrigation officers acting under the orders of the State Government to enter on any land or remove any obstructions and may close any channels, and do any other thing necessary for such application or use of the water. "6. Powers of irrigation offices.- At any time after the day so named any irrigation officer, acting under the orders of the State Government in this behalf, may enter on any land or remove any obstructions and may close any channels, and do any other thing necessary for such application or use of the said water." 9. Section 14 of the Act, reproduced below, confers expansive powers upon the irrigation officer to undertake all necessary steps including surveys etc. for construction and maintenance of the irrigation works. "14. Section 14 of the Act, reproduced below, confers expansive powers upon the irrigation officer to undertake all necessary steps including surveys etc. for construction and maintenance of the irrigation works. "14. Power to enter etc.- (1) Any irrigation officer or other person acting under the general or special order of an irrigation officer, may enter upon any lands adjacent to any irrigation work, or on or through which an irrigation work is proposed to be made and undertake surveys or levels thereon; and dig and bore into the sub-soil; and make and set up suitable land marks, level marks or water gauges, and do all other acts necessary for the proper prosecution of any enquiry relating to any existing or projected work under the charge of the said irrigation officer. (2) Where such inquiry cannot otherwise be completed, such officer or other person may for reasons to be recorded in writing cut down and clear away any part of any standing crop, fence or jungle. (3) Such officer or person may also enter upon any land, building or water course on account of which any water rate is chargeable for the purpose of inspecting or regulating the use of the water supplied, or of measuring the lands irrigated thereby or chargeable with a water rate, and of doing all thing necessary for the proper regulation and management of such irrigation works. (4) If such officer or person proposes to enter into any building or enclosed court or garden attached to a dwelling house not supplied with water flowing from any irrigation work, he shall previously give the occupier of such building; court or garden at least seven days notice in writing of his intention to do so. (5) In every case of entry under this section the irrigation officer shall, at the time of such entry, tender compensation for any damage which may be occasioned by any proceeding under this section and in case of dispute as to the sufficiency of the amount so tendered, he shall forthwith refer the same for decision by the Collector; and such decision shall be final." 10. Manifestly, modernization of an existing canal system is essential component of its maintenance and thus, without any doubt, the irrigation officer is the person authorized to take requisite steps in this regard. Manifestly, modernization of an existing canal system is essential component of its maintenance and thus, without any doubt, the irrigation officer is the person authorized to take requisite steps in this regard. The irrigation officers, i.e. the Superintending Engineer and the Executive Engineer have been expressly authorized in this behalf by the State Government vide notification dated 01.10.2009 to undertake the requisite steps for modernization of the canal. The steps of modernization have been expressly approved by the Competent Authority of the State Government (vide communication dated 24.05.2017) and are being executed at the ground level as per the approval so as to ensure the urgently required upkeep and maintenance of the KSD and to ensure a fair impartial distribution and optimization of available volume of water. The financial and administrative sanction has been expressly granted by the State Government vide letter dated 24.05.2017. The flow chart statement reproduced hereinabove clearly evinces that the efficacy of the available water will be significantly optimized after maintenance and lining of the canal is completed. In this background, apprehension of the petitioners that their fields will be deprived of their entitled volume of water is absolutely unfounded. Manifestly, if any such shortfall is experienced, the petitioners have available to them the suitable remedies under the Act of 1954, the Rules of 1955 and the Act of 2000 and they would be at liberty to avail the same as, when and if required. 11. After having appreciated the entirety of facts as available on record, this court is of the firm opinion that the motive of the petitioners in trying to stall the modernization of the canal by invoking the extraordinary writ jurisdiction of this court does not reflect their bonafides. The canal is decades old. It was a clay lined irrigation system suffering from huge loss of water by seepage, pilferage, theft etc. and the modernization thereof is the call of the time and is imperative looking to the day by day depletion of water resources. As a matter of fact, the petitioners should have adopted a more pragmatic approach by co-operating in the modernization process, rather than trying to obstruct and stall the same. and the modernization thereof is the call of the time and is imperative looking to the day by day depletion of water resources. As a matter of fact, the petitioners should have adopted a more pragmatic approach by co-operating in the modernization process, rather than trying to obstruct and stall the same. If they have any grievances or apprehensions that water supply to their fields could be, in any manner diminished by the process of modernization, then they could have approached the authorities to seek the necessary correction, but instead, they have chosen the path of trying to frustrate the exercise of modernization. Their approach is patently infected with vested and malafide motives. 12. In wake of the discussion made hereinabove, I find no merit in the writ petition, which is hereby dismissed as such. The irrigation authorities are directed to expedite the ongoing modernization process of the KSD and shall ensure that the work is completed within the stipulated time frame. 13. No order as to costs.