Rajasthan High Court - JodhpurRamswaroop & Ors vs State & Ors on 18 November, 2010Author:Govind MathurBench:Govind Mathur1

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                    JODHPUR


                              :: ORDER ::


          S.B. CIVIL WRIT PETITION NO.6419/2007

                        Ramswaroop and Ors.
                                  Vs.
                      State of Rajasthan and Ors.



       DATE OF ORDER            ::        18th November, 2010


                                    PRESENT

                  HON'BLE MR. GOVIND MATHUR ,J.


Mr.   B.S. Sandhu, for the petitioners.
Mr.   K.R. Saharan, Dy. Government Counsel.
Mr.   R.S. Choudhary ) for the respondents.
Mr.   Kamaldeep Singh)


BY THE COURT :Somewhere in the year 1997-1998 a pukka (brick) canal

was constructed and the water outlet available at the petitioners'

chak was shifted to new canal.            The Superintending Engineer

(respondent No.3)        sanctioned      water   outlet   at   Stone     Line

No.274.2 RD No.74.975(R). A direction was also given as an

interim measure to install a water outlet at Stone No.274.2 RD,

however, instead of doing so a water outlet was installed at

Stone Line No.273. A report was made by the Assistant Engineer

for    installation     of   such     erroneous      water     outlet.     A

recommendation was also made to install water outlet at Stone2No.274.2 as sanctioned by the Superintending Engineer on

31.3.1999. The Superintending Engineer also passed an order

accordingly on 31.10.2001.A petition for writ (SBCWP No.4613/2001 Sohan Singh Vs.

State) was filed before this Court to challenge the order dated

31.10.2001 and that came to be decided on 24.1.2003 with

following observations :-"This writ petition has been filed for quashing
           the order dated 31.10.2001 passed by the
           Superintending Engineer in respect of the
           irrigation   matters      under    the    provisions   ofRajasthan Irrigation and Drainage Act, 1954and the rules framed thereunder of 1955.As the learned counsel appearing for the
           parties had been fair enough to admit that the
           order has been passed by the Superintending
           Engineer who is an appellate authority and it
           should have been passed by the Executive
           Engineer giving an opportunity of hearing to
           the parties concerned, the order cannot be
           sustained in the eyes of law.In view of the above, the order dated
           31.10.2001       passed    by     the    Superintending
           Engineering is hereby quashed. The matter is
           remitted to the respondent No.3 who may hear
           the parties and other concerned parties who3may be adversely affected by his order and
            pass an appropriate order in accordance with
            law.With these observations, the writ petition

            stands disposed of. There shall be no order as

            to the costs."In pursuant to the aforesaid directions, the Executive

Engineer vide order dated 1.10.2005 made an order to maintain

the outlet at Stone Line No.273. On appeal the order dated

30.1.2006 passed by the Executive Engineer was set-aside and

while doing so, the appellate authority (Superintending Engineer)

noticed that the Executive Engineer has not made available the

original record for consideration regarding the application for

change of water outlet. The appellate authority also noticed the

contention of the appellants (present petitioners) that their land

is not presently getting irrigation water from Stone Line No.273.A challenge was given to the order dated 30.1.2006 by

way of filing a petition for writ before this Court and that came to

be accepted on 16.10.2006. An appeal before Division Bench

was preferred by the present petitioners giving challenge to the

judgment dated 16.10.2006 and that came to be disposed of by

the judgment dated 20.11.2006 (Annex.-14). While disposing of4appeal, the consideration made in directions given by the Hon'ble

Division Bench reads as follows:-"Now it is common ground between the parties
           that before passing the order dated 30th Jan.,
           2006, no notice was issued in fact to the
           respondents        in       appeal        before    the
           Superintending Engineer.In the aforesaid circumstances, we are of
           the opinion that on admitted position, the order
           dated 30.1.2006 is not liable to be sustained
           for this reason alone notwithstanding our prima
           facie    opinion   that     one      of   the   relevant
           considerations which affect the interest of
           irrigation has not been taken into account by
           the Executive Engineer also.In the circumstances, learned counsel for
           the parities submit that no purpose would be
           served by keeping this petition pending here by
           way of disposing of interim application.The impugned order dated 30th January,
           2006 deserves to be quashed and is hereby
           quashed and the parties are directed to appear
           before the Superintending Engineer on 1st of
           February, 2007. No notice will be issued to
           them now. It will be the responsibility of the
           respective counsel        to inform their respective
           parties for making representation.5It is also impressed upon the Executive
           Engineer that he should promptly made the
           original record available to the Superintending
           Engineer and failure to make original record
           available immediately to the Superintending
           Engineer      despite    these   directions    will    be
           considered a serious case of in subordination
           and will also be considered defiance of the
           orders of the Court. It will be the duty of the
           learned Government Advocate appearing in this
           case to inform the Executive Engineer to make
           the records available to the Superintending
           Engineer before the date of hearing fixed by
           the Court.This disposes of the writ petition also.
           Until appeal is decided by the Superintending
           Engineer, status quo as exists today shall not
           be altered.Accordingly, the special appeal as well as
           the writ petition are disposed of."In pursuant to the directions given by the Division Bench

as aforesaid, the Superintending Engineer vide order dated

5.5.2007 constituted a committee of four technically qualified

persons to examine the entire issue. The committee after visiting

the site on 4.6.2007 and 5.6.2007 submitted its report to the

Superintending    Engineer         on   30.6.2007.       As      per   the

recommendation made by the technical             committee, the FSL6level at Stone Line No.274.2 is higher than the Stone Line

No.273, therefore, better irrigation facility can be provided by

installing water outlet in the Chak concerned at Stone Line

No.274.2. The relevant portion of the conclusion given by the

committee reads as under :-"न ष र :-       मट        दर म            न र कण एव भ खड
              रर    र     अवल             र   पर प य गय क              च       23
             ए ए          मघ      # स%&न' ववव द*' रह ह,, रर                र
           अ स
             - र यह बर
                     - 1 सखय 74.975 पत&र ल ई                           274.2
           पर %व5 6 ' & ।       इस5 रगह म घ ह'- %9कचर न रम' ह, ।
           रबक      म     पर बर
                              - 1 सखय 76.00 अ& ' पत&र ल ई
           273 पर प ईप आऊटलट लग ह-आ ह,, र व'म                                  म>
           च ल- ह, ।    पत&र ल ई      274.2 पर            हर       एफएसएल
           193.53 म5टर प प ह ' ह,, रबक                पत&र स. 273 पर
           193.46 म5टर रमल रह ह, ।             यद* म घ           पत&र ल ई
           273 पर रख र ' ह, ' 'ल
                               - तम                       रप स मख
                                                                - य खल
                  अधD   भर ई म> ल र           ह ग , पEव        # 'रफ       र ब
                  'ल
                   - तम     रप स न म          रल %'र प प ह ग ।             %पष
           ह, क    पत&र स. 274.2 पर उचच रल %'र प प ह ' ह, ।
           यद* इस धय        म> रख र च          % #म म> आरK             सK D
           क य र ' ह, '          य    म णर          उचच रल %'र प प
           हग।      सरसस    - छ र ब अन'ररक            म णर ह स ' ह, ।
           इसस सह आ ल            स5एर5 % #म ब              पर ह समभव ह
           स ग ।"The Superintending Engineer vide order dated 7.9.2007

permitted to continue water outlet at Stone Line No.273,

ignoring the recommendations made by the technical committee.7Being aggrieved by the same this petition for writ is preferred.As per petitioners, their land is situated in between Stone

Line No.275/365 to 275/375 and that is higher than the

remaining land in the Chak concerned, as such, the land cannot

be irrigated from the water outlet given at Stone Line No.273

being at lower level and also against the slope of land.Learned counsel for the petitioners submitted that an

Expert Committee consisting of two Executive Engineers, one

Assistant Engineer and one Junior Engineer after examining all

relevant facts and also the site, made recommendations for

installing   water   outlet   at   Stone   Line   No.274.2,   but   the

Superintending Engineer just for the reason that the water outlet

at Stone No.273 is working from last number of years rejected

the expert's recommendations. It is also submitted that if the

water outlet is installed at Stone Line No.274.2, the entire land

that is presently irrigated by the outlet situated at Stone Line

No.273 can receive water as the location of the outlet sanctioned

and recommended by the Expert Committee is at higher altitude.The respondents No.1 to 3 in their reply without denying

the recommendations made by the experts committee accepted

that Chak plan of Chak 23 KNN was prepared by the Canal Area

Development Department, according to which water outlet is8sanctioned at RD 74.975 i.e. Stone No.274.3. In spite of it an

effort is made to defend the order passed by the Superintending

Engineer merely by saying that the order impugned was passed

after considering "all the pro and cons of the matter".In reply to the writ petition submitted on behalf of the

respondents No.6 to 33, it is stated that from last number of

years irrigation facility is provided from the water outlet situated

at Stone Line No.273/372 and the petitioners want change the

same to get their uncommand land irrigated.From the factual position narrated above, it is quite clear

that the water outlet was sanctioned at Stone Line No.274.2 and

a committee of experts also recommended for installation of

water    outlet   on   the   point   aforesaid.   As   per   the   expert

committee's report, the land at stone No.274.2 is at higher level

than the locations of the water outlet situated at Stone Line 273.

The only reason for continuing water outlet at Stone Line No.273

under the order impugned is that temporary outlet was earlier

given and that is continuing from last number of years.During the course of arguments, the fact of getting

irrigation facilities by number of peasants and a huge part of

land from the water outlet at Stone Line No.273 was also

advanced and that was not disputed by any of the party. Having9considered this fact, on 8.7.2010 the Court directed the

respondent Department to find out viability of establishing an

additional water outlet at Stone Line No.274.2 while continuing

the present water outlet at Stone Line No.273.The respondents examined the viability and stated that as

per designed manual prescribed by the Canal Area Department,

the outlet size should be capable for water discharge generally

between 1.50 to 2.50 cusecs. Outlet with discharge below 1.50

cusecs and above 2.50 cusecs should be considered in special

case only. It is submitted that in the event of providing

additional outlet at Stone Line No.274.2, the water discharge

shall be less than 1.50 cusecs.Learned counsel for the petitioner stated that there are

number of    water outlet sanctioned by the official respondents

having discharge less than 1.50 cusecs and that is upto 1.05

cusecs. The fact above is admitted by the learned counsel for the

respondents No.1 to 3, after getting necessary instructions from

the officer-incharge of the case.Looking to all existing facts specially that a big number of

peasants are getting irrigation facility from the water outlet

situated at Stone Line No.273 and as per experts water outlet is

required to be installed at Stone Line No.274.2, I am of the view10that the instant one is the case where deviation from prescribed

      manual is necessary to meet the ends of justice. To settle the

      dispute and equities between the parties, I deem it appropriate

      to dispose of this petition for writ by directing the respondents

      No.2 and 3 to install an additional water outlet at Stone Line

      No.274.2 as sanctioned without disturbing the water outlet

      already continuing at Stone Line No.273. The order passed by

      the   Superintending    Engineer        dated   7.9.2007   also   stands

      modified accordingly.The petition for writ stands disposed of.(GOVIND MATHUR), J.rm/