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2022 DIGILAW 972 (RAJ)

Hans Raj v. State Of Rajasthan

2022-03-24

VINIT KUMAR MATHUR

body2022
JUDGMENT Vinit Kumar Mathur, J. - Heard learned counsel for the parties. 2. The case comes up on an application for preponement of the date. However, with the consent of counsel for the parties, the matter is heard finally and decided today itself. 3. The present writ petition has been filed for quashing and setting aside the order dated 13.11.2010 passed by the Executive Engineer, Sri Ganganagar as well as the order dated 28.06.2011 passed by the Superintending Engineer, Sri Ganganagar. 4. The brief facts necessary to be narrated are that an order was passed by the Executive Engineer on 13.11.2010, whereby the application preferred by the respondent Puran Singh that water course has been running through Murabba Nos. 28 & 29 for last 60 years, therefore, the same should be sanctioned. At the same time, the petitioner Hans Raj also preferred an application wherein it was stated that since the sanctioned water course is not in Murabba Nos. 28-29, therefore, the same should be removed and water course should be constructed at the sanctioned place i.e. Murabba Nos. 17, 18, 25 & 26. 5. The Executive Engineer while disposing of two applications vide order dated 13.11.2010 held that for all practical purposes, the sanctioned water course in Murabba No. 17 & 26 cannot be constructed as the same is not feasible. It is further stated that since the water course is in operation for last 60 years in Murabba No. 28 & 29, therefore, the same should be allowed to continue for supply of water in this area. 6. Against this order of Executive Engineer, the petitioner Devidayal preferred an appeal before the Superintending Engineer and the same was also rejected by the appellate authority vide its order dated 28.06.2011 holding that since the sanctioned water course in Murabba Nos. 17 & 26 is not in operation because the same has now come in abadi area, therefore, it was not found feasible to sanction the same and operate the water channel from that sanctioned water course. It was further observed that since the water course in Murabba No. 28 & 29 is in operation for last 60 years, therefore, the same should be continued to supply the water in the area. It was further observed that since the water course in Murabba No. 28 & 29 is in operation for last 60 years, therefore, the same should be continued to supply the water in the area. In these circumstances, the present writ petition has been filed assailing validity of the order dated 13.11.2010 passed by the Executive Engineer as well as order dated 28.06.2011 passed by the Superintending Engineer. 7. It is contended by the counsel for the petitioners that the procedure provided in the Rajasthan Irrigation and Drainage Act, 1954 has not been followed. As per the Section 24/25 of the act, the objections for construction of water course are to be dealt with and decided by the District Collector. Since, the water course in Murabba No. 28 & 29 has not been sanctioned by the Collector, the same should be made in-operational and the sanctioned water course should be allowed to operate in the area for supply of the water. He further submits that the sanctioning Authority as per the act of 1954 is the collector, therefore, the order passed by the Executive Engineer and Superintending Engineer dehors the law. He, therefore, prays that the order dated 13.11.2010 passed by the Executive Engineer as well as order dated 28.06.2011 passed by the Superintending Engineer may kindly be quashed and set aside. 8. Per contra learned counsel for the respondents submits that there is no dispute with respect to position of law, but in the present case, since the water course is in operation for last 60 years and it has not been found feasible for construction of water course for Murabba No. 17 & 26. The Executive Engineer and the Superintending Engineer have rightly rejected application of the petitioners for construction of water course in Murabba Nos. 17 & 26 and for closer of the water channel in Murabba Nos. 28 & 29. Learned counsel for the respondents, therefore, submit that the writ petition should be dismissed on this ground. 9. I have considered the submissions made at the bar and gone through the relevant record of the case. The fact that water course is in operation for last 60 years in Murabba Nos. 28 & 29 is admitted by the counsel for the parties. 9. I have considered the submissions made at the bar and gone through the relevant record of the case. The fact that water course is in operation for last 60 years in Murabba Nos. 28 & 29 is admitted by the counsel for the parties. It is also an admitted fact that it has not been sanctioned, but the sanctioned water course in Murabba No. 17 & 26 is not feasible for operation as per the report of the Executive Engineer. The reason for not operating the sanctioned water course in Murabba No. 17 & 26 is that the land has now come in the abadi area and for all practical purposes, the sanctioned water course cannot be constructed in the area. The fact that the objections raised by the petitioners were required to be considered by the Collector in accordance with the provisions of Sections 24 & 25 of the Act of 1954 which have actually not been considered by the Collector and final call has been taken by the Executive Engineer and Superintending Engineer. It will be gainful to reproduce Section 24 & 25 of the Act of 1954 which reads as under: "24. Objection to construction or transfer applied for - (1) Within thirty days from the publication of a notice under section 22 or section 23, as the case maybe, any person interested in the land or water course to which the notice, refers, may apply to the Collector by petition, stating his objection to the construction or transfer for which application has been made. (2) The Collector may either reject the petition or may proceed to inquire into the validity of the objection giving previous notice to the Divisional Irrigation Officer of the place and time at which such inquiry will be held. (3) The Collector shall record in writing all orders passed by him under this section and the grounds thereof. 25. When applicant may be placed in occupation.- If no such objection is made, or (where such objection is made) if the Collector over-rules it, he shall give notice to the Divisional Irrigation Officer and shall proceed to place the said applicant in occupation of the land marked out or of the water course to be transferred, as the case may be." 10. A perusal of provisions contained in sections 24 & 25 of the act of 1954 clearly shows that on the objections being raised by any person with regard to sanction and construction of water course, notices are required to be issued to the general public and if objections are raised then the same are required to be considered and decided by the Collector. Admittedly, in the present case, the same has not been done, therefore, the order passed by the Executive Engineer and confirmed by Superintending Engineer is in violation of the provisions contained in Sections 22 to 25 of the Act 1954. In the opinion of this Court, the order dated 13.11.2010 passed by Executive Engineer and order dated 28.06.2011 passed by Superintending Engineer are not sustainable and therefore, the same are quashed and set aside. The petitioners are directed to raise their objections before the District Collector Sri-Ganganagar with respect to the construction of Pakka water course in Murabba Nos. 28 & 29 within a period of two weeks from today. The Collector shall decide such objections in accordance with law after giving a reasonable opportunity of hearing to the parties concerned. 11. It is also made clear that the water channel which is in operation till today, shall continue to operate till a final decision is taken in the matter by the Collector. 12. The writ petition is disposed of in the above terms. 13. In view of disposal of the writ petition, all the pending applications, if any, also stand disposed of accordingly.