Gurlal Singh vs State Of Rajasthan
2021 Latest Caselaw 2275 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Spl. Appl. Writ No. 606/2019

Gurlal Singh s/o Shri Surendarpal Singh, aged about 46 years, R/o Chak 7 AMP, Tehsil Sangria, District Hanumangarh (Raj.)

----Appellant Versus

1. The State of Rajasthan, through the District Collector, Hanumangarh, District Hanumangarh.

2. The Superintending Engineer, Water Resources Circle Hanumangarh.

3. The Executive Engineer, Water Resources Division-I Hanumangarh.

4. Girdhari Lal s/o Shri Surja Ram, R/o Bolanwali, Tehsil Sangria, District Hanumangarh

----Respondents

For Appellant(s) : Mr. Jitendra Singh Bhaleria For Respondent(s) : Ms. Rekha Borana, AAG with Mr. Saransh Vij Mr. B.S.Sandhu

HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

28/01/2021

1. This intra-Court appeal is directed against order dated

13.5.19 passed by the learned Single Judge of this Court, whereby

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the writ petition preferred by the appellant challenging the legality

of order dated 18.10.18 passed by the Superintending Engineer,

Water Resources, Hanumangarh Circle, setting aside the order

dated 24.8.18 passed by the Executive Engineer, Water Resources,

Division I, Hanumangarh and restoring the benefit of nikal in

favour of the private respondent, has been dismissed.

2. The facts relevant are that the appellant's agriculture land

measuring 30 bighas is situated in chak 7AMP. The respondent is

also holding the land in the same chak. The private respondent

was availing the benefit of nikal. The appellant made an

application for availing the benefit of nikal stating that the

respondent's land is not at the tail end of the main water course

and the sub-branch from C to D in the chak plan is not functional

for last 40 years and therefore, as per the Standing Order, he is

not entitled for the benefit of nikal. The private respondent

apprehending the withdrawal of his benefit of nikal, filed a civil

suit before the court of competent jurisdiction. The suit was

disposed of in terms of the compromise arrived at between the

parties in terms that the matter with regard to entitlement of

benefit of nikal shall be decided by the concerned Executive

Engineer. Accordingly, the Executive Engineer after hearing both

the parties arrived at the conclusion that as per the Standing

Order No.15 dated 1.2.1974, the appellant herein is entitled for

the benefit of nikal inasmuch as, his land is situated at the tail end

of the main water course. Aggrieved thereby, the respondent

preferred an appeal before the Superintending Engineer, Water

Resources, Circle Hanumangarh. The Superintending Engineer

after due consideration observed that Standing Order No.15 dated

1.2.1974 stands amended vide Standing Order dated 19.4.1976,

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whereby it is provided that the benefit of nikal shall be extended

to the agriculturists whose land is situated at the tail end of the

longest branch of the water course and accordingly, set aside the

order passed by the Executive Engineer and restored the benefit

of nikal being availed by the private respondent. The writ petition

preferred by the appellant assailing the legality of the order

passed by the Superintending Engineer has been dismissed by the

learned Single Judge by the order impugned. Hence, this intra-

Court appeal.

3. Learned counsel appearing for the appellant contended that

the Appellate Authority has not examined the issue involved in its

entirety and objectivity, which has resulted in an erroneous finding

being arrived at. Relying upon Clause 2 (i) of Standing Order

No.15, dated 1.2.1974, learned counsel submitted that the benefit

of nikal should be given to the tail of the main course and

admittedly, the appellant's land is situated at the tail of main

course whereas, the respondent's land is situated at the end of

lateral branch of the water course. Learned counsel submitted that

as per Clause 5.07 of the standing order dated 19.4.1976, if there

exits a dispute between the agriculturists with regard to nikal, the

same is required to be distributed as per their share and

therefore, the benefit of nikal cannot be extended to a particular

agriculturist. Learned counsel submitted that the respondent is

availing the benefit of nikal for last 60 years and thus, keeping in

view the order passed by the Executive Engineer, now extending

the benefit of nikal to the appellant, was not required to be

interfered with by the Appellate Authority. Learned counsel

submitted that even as per Clause 5.07 of Standing Order, the

nikal is to be given to the longest branch of the water course and

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therefore, if there are two branches of the water course then

benefit of nikal is required to be rotated between the agriculturists

of both the branches and thus, the order passed by the Appellate

Authority suffers from apparent error for this reason also.

4. On the other hand, learned Additional Advocate General

appearing for the State categorically submitted that the provision

with regard to the benefit of nikal incorporated in Standing Order

No.15 dated 1.2.1974 stands modified by Standing Order dated

19.4.1976 and therefore, the benefit of nikal extended to the

private respondent herein by the Appellate Authority is in

conformity with the Clause 5.07 of the Standing Order dated

19.4.1976 inasmuch as, admittedly, the respondent's land is

situated at the tail end of the longest branch. Learned AAG

submitted that the provision incorporated in the Standing Order

dated 1.2.1974 providing for the benefit of nikal to the

agriculturist at the tail end of the main course is no more

operative.

5. Mr. B.S.Sandhu, learned counsel appearing for the

respondent submitted that the Executive Engineer had passed the

order in favour of the respondent solely relying upon the provision

for nikal incorporated in Standing Order dated 1.2.1974 without

taking into consideration the subsequent Standing Order dated

19.4.1976 and thus, the order passed by the Executive Engineer

being ex facie erroneous, the Appellate Authority has committed

no error in setting aside the same. Learned counsel submitted

that as per Clause 5.07, the benefit of nikal is to be extended to

the agriculture land situated at the tail end of the longest branch

and it is not in dispute that the respondent's land is situated at the

tail end of the longest branch of the water course and therefore,

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the order passed by the Appellate Authority has rightly been

declined to be interfered with by the learned Single Judge.

Learned counsel submitted that for the purpose of grant of nikal,

as per the amended provision, there exits no distinction of main

branch or lateral branch and thus, the distinction sought to be

made by the appellant on the strength of the Standing Order

dated 1.2.1974, is absolutely misconceived.

6. We have considered the rival submissions and perused the

material on record.

7. Indisputably, earlier the framing of barabandi proposals,

which includes the benefit of nikal was governed by Standing

Order No.15 dated 1.2.1974. It is also not in dispute that the

fresh guidelines have been issued by the State Government for

Integrated Water Distribution vide Standing Order dated

19.4.1976.

8. It is true that as per Clause 2 (i) of the Standing Order

No.15 dated 1.2.1974, nikal should be given to the tail of main

water course. The main water course is one which follows natural

slopes of the ground and ends nearest to the outlet. Thus,

undoubtedly, as per the said clause of Standing Order, the

appellant's land being situated at the tail of main water course, he

is entitled for benefit of nikal. But then, the said provision stands

amended by virtue of Clause 5.07 of Standing Order dated

19.4.1976. In this regard, the stand of the State is also

categorical before this Court. In this view of the matter, we are

firmly of the view that the matter with regard to extending the

benefit of nikal has to be dealt with keeping in view the amended

provision i.e. Clause 5.07 of Standing Order dated 19.4.1976.

(6 of 7) [SAW-606/2019]

9. A bare perusal of Clause 5.07 of the Standing Order dated

19.4.1976 makes it abundantly clear that the benefit of nikal has

to be extended to the land situated at the tail end of longest

branch of the water course and thus, the contention sought to be

raised by the appellant that his land being situated at the tail end

of the main water course, he is entitled for the benefit of nikal is

devoid of merit. In our considered opinion, keeping in view the

amended provision, the situation of the land at the end of the

main water course or at the tail end of the lateral branch of water

course, does not make any difference and the agriculture land

which is situated at the end of the longest branch has to be

extended the benefit of nikal. In this view of the matter, the order

passed by the Executive Engineer without considering the

amended provision was ex facie erroneous and thus, the Appellate

Authority has committed no error in setting aside the order under

appeal before it.

10. Coming to the contention of the learned counsel for the

appellant that as per Clause 5.07, in case of dispute between the

agriculturists with regard to benefit of nikal, the same is required

to be distributed as per their share, suffice it to say that the said

clause regarding the settlement of the dispute between the

agriculturists regarding nikal becomes operative only in the case

where a dispute arises regarding nikal between the agriculturists

of same murabba. Admittedly, in the instant case, the lands of the

appellant and the private respondent are situated in the same

chak but in different murabbas and thus, the contention sought to

be raised by the appellant as aforesaid also falls through.

11. In view of the discussion above, we are in agreement with

the view taken by the learned Single Judge.

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12. No case for interference in intra-Court appeal jurisdiction is

made out.

13. The appeal is therefore, dismissed. No order as to costs.

                                   (RAMESHWAR VYAS),J                                        (SANGEET LODHA),J
                                    31-Aditya/-









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