Charan Singh vs State Of Rajasthan
2023 Latest Caselaw 2648 Raj

[2023/RJJD/007709]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 994/2023

Charan Singh S/o Shri Thanda Singh, Aged About 59 Years, R/o Chak 12H Ward No. 4 Tehsil Sri Karanpur, District Sri Ganganagar.

----Petitioner Versus

1. State Of Rajasthan, Served Through Secretary Water Resources Department, Rajasthan, Jaipur.

2. Executive Engineer, Water Resources, North Division- Sri Ganganagar.

3. Superintending Engineer, Water Resources, Circle, Sri Ganganagar.

4. Tejkour W/o Rajendra Singh, Through Kuldeep Singh S/o Rajendra Singh R/o Chak 12-H Ward No. 4 Tehsil Sri Karanpur, District Sri Ganganagar.

                                               ----Respondents

For Petitioner             :     Mr. N.R. Budania
For Respondents            :     Ms. Abhilasha Bora, AGC with
                                 Ms. Akanksha Choudhary.
                                 Mr. Kanishk Singhvi

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 28/03/2023 Pronounced on 04/04/2023

1. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed and -

i) An appropriate writ, direction or order, the order dated 07.10.2022 (Annexure-10) passed by Executive Engineer, Water Resources, north division, Sri Ganganagar and order dated 04.01.2023 (Annex-12) passed by Superintending Engineer, Water Resources Circle, Sri Ganganagar may kindly be quashed and set aside.

ii) Any other appropriate writ or direction necessary for justice be issued.

iii) Cost of the writ petition may kindly be awarded in the favour of petitioner."

[2023/RJJD/007709] (2 of 9) [CW-994/2023]

2. As the pleaded facts would reveal, the petitioner is an

agriculturist and khatedar of the land situated in murabba no. 7

killa no. 1 to 14, and the private respondent also has land in the

said murabba, in the name of her husband. And that, the private

respondent is also khaatedar of the land situated at murabba no.

15 measuring 14 bighas. The water turn of the land of the

petitioner is fixed at naka of killa no.1 of murabba no. 7. There is

kachha internal field channel constructed by the petitioner on his

land for receiving the water supply from water course which is

running through killa nos. 1, 10, 11, 20, 21 of murabba no. 7.

2.1 On 15.04.2019, the private respondent submitted an

application before the Executive Engineer in regard to sanctioning

of naka and water course through the land (murabba no. 7) of the

petitioner; two similar applications were made; one in the year

1997 and the other on 11.05.2005. Subsequent to which, a notice

under Rule 4(2) of the Rajasthan Irrigation and Drainage Rules,

1955 (for short, 'Rules of 1955') was issued to the petitioner and

some other persons on 07.04.2022. Thereafter, objection was filed

by the petitioner opposing the sanction of water course and naka

through the land of murabba no.7.

2.2 And that the executive engineer allowed the aforementioned

application, vide the impugned order dated 07.10.2022, and

sanctioned/regularized the water course through the land of killa

nos. 1, 10, 11, 20, 21 of murabba no.7.

2.3 The petitioner filed an appeal before the Superintending

Engineer, which however, was rejected vide the impugned order

dated 04.01.2023, on the ground of the appeal being barred by

limitation.

[2023/RJJD/007709] (3 of 9) [CW-994/2023]

2.4 Aggrieved by the order passed on 07.10.2022 by the

Executive Engineer and the order passed on 04.01.2023 by the

Superintending Engineer, the present petition has been preferred

claiming the afore-quoted reliefs.

3. Learned counsel submitted that after issuance of the said

notice, the Executive Engineer was under a legal obligation to

send the record of water course, as provided by Rule 5 of the

Rules of 1955 to the District Collector, while complying with the

other prescriptions as contained therein. And that, the procedure

as laid down under Sections 21 to 28 of the Rajasthan Irrigation

and Drainage Act, 1954 (in short, 'Act of 1954'), has also not been

followed, while passing the impugned order dated 07.10.2022.

3.1 However, as per learned counsel, the Executive Engineer

without sending the record to the District Collector and without

following the mandatory provision as mentioned above, allowed

the application filed by the private respondent vide the impugned

order dated 07.10.2022, while ignoring the objection filed by the

petitioner.

3.2 Learned counsel thus made an assertion that the said

impugned order order was passed de hors the mandatory

provisions of the Rules of 1955 and the Act of 1954. He submitted

that the impugned order dated 07.10.2022 was passed while

placing reliance on Section 29(2) of the Act of 1954, which is

nothing, but misreading of the said provision by the executive

engineer concerned, as in the present case, the provision

contained in Section 29(2) is not at all applicable.

3.3 Learned counsel for the petitioner assails the impugned order

dated 07.10.2022 on the ground that the same is not in

[2023/RJJD/007709] (4 of 9) [CW-994/2023]

consonance with the law, as laid down by a Coordinate Bench of

this Hon'ble Court in the judgment rendered in the case of Inder

Raj Vs. Executive Engineer, 1986 (2) WLN 57, whereby, upon

due consideration of the provisions of Sections 21 to 25 of the Act

of 1954, it was categorically held that the Collector is the only

competent authority to deal with the application seeking

sanctioning of a new water course and pass final orders thereon.

3.4 To fortify such submissions, learned counsel also relied upon

the judgment rendered by a Coordinate Bench of this Hon'ble

Court in Hanuman & Anr. v. The State of Rajasthan & Ors.

(S.B. Civil Writ Petition No. 10809/15, decided on

02.03.2016).

3.5 Learned counsel further submitted that the impugned order

dated 07.10.2022 was not pronounced on that date, rather it was

pronounced later on; the petitioner, as averred in the petition,

came to know about such pronouncement only on 30.11.2022,

whereupon he has filed the appeal before the appellate authority,

which was dismissed vide the impugned order dated 04.01.2023

on the ground of delay.

3.5.1 . Learned counsel submitted that though as per Rule 56 of

Rules of 1955, limitation for filing of an appeal is 30 days, but

alongwith the appeal, the petitioner also filed an application under

Section 5 of the Limitation Act, specifically mentioning the

circumstances, which prevented him from filing the appeal in time.

However, the Superintending Engineer, without considering the

same, dismissed the appeal vide the impugned order dated

04.01.2023.

[2023/RJJD/007709] (5 of 9) [CW-994/2023]

3.6 It was further submitted that no water course existed on the

land of murabba no.7, but an internal field channel (Aad) was put

in place by the petitioner in killa nos. 1, 10, 11 of murabba no.7

for irrigating his land, and that, the entire land of killa nos. 1, 10,

11 and the same is in the khatedari of the petitioner. Nonetheless,

as per learned counsel, the Executive Engineer, passed the

impugned order, while treating the internal field channel,

constructed by the petitioner, as running water course. As an

effect of the sanction in question, the khatedari land of each killa

of the petitioner would be reduced by 2 biswas, and consequent

whereupon, an entry would also be made in the revenue records,

showing the same as a water course (khala).

4. On the other hand, learned counsel for the respondents while

opposed the aforesaid submissions made on behalf of the

petitioner.

4.1 Learned counsel submitted that the private respondent filed

the application seeking the sanction in question, as no water

course was existing so as to enable her to cultivate her field from

the sanctioned inlet for square no. 15 at killa no. 21, on count of

the fact that the same falls in the burial ground. It was further

submitted that the private respondent has been cultivating her

field from the water course of square no.7 running from killa

nos.1, 10, 11, 20, 21, and thus, by way of the aforesaid

application, it was prayed that the water course running earlier in

killa nos. 1, 10, 11, 20, 21 of square no. 7 be regularized and inlet

of petitioner's land be sanctioned at killa no.1. As per learned

counsel, even the Executive Engineer vide report dated

[2023/RJJD/007709] (6 of 9) [CW-994/2023]

06.11.2020 recommended the same in the interest of providing

irrigation facility to the private respondent.

4.2 It was further submitted that the water course is running

through killa nos. 1, 10, 11, 20, 21 of murabba no. 7, for the last

32 years when the land was bought by the private respondent,

and since then, both petitioner as well as the private respondent

have been irrigating their lands through the said water course.

4.3 As per learned counsel, though the said water course is not

recorded in the Chak map, no objection was raised by the

petitioner either with regard to his water turn, or that of the

private respondent, having been fixed through the same. Learned

counsel submitted that the said position with regard to irrigation

of the fields of the parties has been continuing for the last 32

years, and thus, after lapse of such a long period, the petitioner

cannot raise any objection with regard to such sanction, at such a

belated stage.

4.4 Learned counsel submitted that though at times, it happens

that water courses do not run in the exact places, where they are

marked in the Chak maps; the same happens due to certain

topographical and slope issues, and thus, and in those

circumstances, certain water courses are constructed, for the

benefit of the agriculturists of the Chak concerned, so as to enable

them to get sufficient share in the water course; the same has

been the position in the present case also. In addition, learned

counsel asserted that there is water course in killa nos.1, 10, 11,

20, 21 in square no.7, but the petitioner, while annexing the

Jamabandi of square no. 4, is trying to show that there is no water

course in square no.7, and thus, the petitioner has intentionally

[2023/RJJD/007709] (7 of 9) [CW-994/2023]

and deliberately concealed the material information regarding

square no. 7, by not annexing the Jamabandi of square no.7.

Thus, as per learned counsel, it is apparent on the face of the

record that the petitioner has not approached this Court with clean

hands.

4.5 In furtherance, learned counsel submitted that the

application made before the Executive Engineer by the private

respondent was not for sanctioning of a new water course on the

petitioner's land, but to regularize the existing water course and

for sanctioning of inlet at killa no.1; and on that count, the

objection filed by the petitioner in pursuance of notice dated

07.04.2022 was not required to be forwarded to the District

Collector by the Executive Engineer.

4.5.1 . Furthermore, as per learned counsel, the procedure

mandated under Sections 21 to 28 of the Act of 1954 is only

required to be adopted when a new water course is being

sanctioned. Learned counsel also submitted that the Executive

Engineer, while passing the impugned order dated 07.10.2022,

has rightly placed reliance on Section 29(2) of the Act of 1954 as

the sanctioned inlet at Killa no. 21 in square no. 15 was never in

use, and therefore, the same ought to be considered as cancelled,

in view of the said provision of law. Moreover, as per learned

counsel, the petitioner never raised any objection in the year 1997

itself, when for the first time, the application was moved by the

private respondent, rather the objection was raised by the

petitioner only in the year 2007.

4.6 Learned counsel asserted that the averment made by the

petitioner to the effect that the impugned order of the Executive

[2023/RJJD/007709] (8 of 9) [CW-994/2023]

Engineer was not pronounced/passed on 07.10.2022, is

apparently incorrect and false, for nothing is forthcoming on

record from the side of the petitioner to substantiate the same.

4.6.1 Learned counsel submitted that the impugned order was

passed on 07.10.2022 itself, and that, upon the said order being

challenged by filing an appeal before the Superintending Engineer,

the same was rightly dismissed vide the impugned order dated

04.01.2023 on the ground of delay in absence of a sufficient

explanation furnished by the petitioner to justify such delay; the

said appeal was rightly rejected in view of a clear provision

regarding period of limitation, as contained in Rule 56 of the Rules

of 1955, for filing an appeal.

5. Heard learned counsel for the parties as well as perused the

record of the case along with the judgment cited at the Bar.

6. This Court observes that the issue in question is regarding

the water course running through the petitioner's land and

irrigating the land of the private respondent. The water course has

been running through the killa no. 1, 10, 11, 20, 21 of the

murabba no. 7 of the Chak since 32 years when the land was

bought by the private respondent and both petitioner and private

respondent are irrigating their lands through the said water

course. It is evident from the factual matrix that the petitioner had

not raised any objection to the same however as soon as the

private respondent applied for regularizing the existing water

course objections were raised by the petitioner.

6.1 This Court further observes that the private respondent on

15.04.2022 applied before the Executive Engineer for regularizing

the existing water course and for sanctioning of inlet at killa no.1.

[2023/RJJD/007709] (9 of 9) [CW-994/2023]

After perusal of the records the Executive Engineer and

Superintending Engineer, it is clear that the averments made by

the petitioner hold no substance.

6.2 Furthermore, though the learned counsel for petitioner

submitted that the appeal could not be filed in time, due to the

delay in pronouncement of the impugned order and knowledge

thereof to the petitioner, but the petitioner completely failed to

substantiate the same, while preferring the appeal.

6.3 Apart from the above, this Court also observes that in the

given factual matrix, it would not be appropriate to obstruct the

irrigation facility in question being availed by the respective party

for last more than 32 years, as if it is so done, the same would

have adverse impact upon the cultivation activities etc, which is

not the appropriate course to be adopted; more particularly, when

this Court does not find any cogent reason to make any

interference in the impugned orders passed by the learned

authorities below.

6.4 Also, the judgments cited on behalf of the petitioner do not

render any assistance to his case, so as to warrant grant of any

relief to the present petitioner.

7. Consequently, the present petition does not merit acceptance

and the same is accordingly dismissed. All pending applications

stand disposed of.

(DR. PUSHPENDRA SINGH BHATI), J.

SKant/-

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