Rajasthan High Court - Jodhpur
Savitri Devi vs State Of Rajasthan on 13 October, 2023
Bench: Nupur Bhati
[2023:RJ-JD:32579]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18454/2018
1. Savitri Devi W/o Shri Sahiram, Aged About 72 Years, B/c
Nayak, 4 K.a.m, Tehsil Anoopgarh, District Sri
Ganganagar (Raj.)
2. Kaluram S/o Shri Sahiram,, Aged About 30 Years, B/c
Nayak, 4 K.a.m, Tehsil Anoopgarh, District Sri
Ganganagar (Raj.)
3. Vidhya Devi D/o Shri Sahiram,, Aged About 42 Years, B/c
Nayak, 4 K.a.m, Tehsil Anoopgarh, District Sri
Ganganagar (Raj.)
4. Santosh Devi D/o Shri Sahiram,, Aged About 45 Years, B/
c Nayak, 4 K.a.m, Tehsil Anoopgarh, District Sri
Ganganagar (Raj.)
5. Bimala Devi D/o Shri Sahiram,, Aged About 35 Years, B/c
Nayak, 4 K.a.m, Tehsil Anoopgarh, District Sri
Ganganagar (Raj.)
----Petitioners
Versus
1. State Of Rajasthan, Through The District Collector, Sri
Ganganagar, District Sri Ganganagar (Raj.)
2. The Superintending Engineer, Water Resources Circle Sri
Vijay Nagar, District Sri Ganganagar.
3. The Executive Engineer, Water Resources Suratgarh
Branch Circle, Sri Vijaynagar, District Sri Ganganagar.
4. Krishan Kumar S/o Shri Paluram,, B/c Jat, 4 K.a.m, Tehsil
Anoopgarh, District Sri Ganganagar (Raj.)
5. Banwarilal S/o Shri Sahiram,, B/c Nayak, 4 K.a.m, Tehsil
Anoopgarh, District Sri Ganganagar (Raj.)
----Respondents
For Petitioner(s) : Mr. JS Bhaleria
For Respondent(s) : Ms. Abhilasha Bora, AGC, assisted by
Ms. Akanksha Choudhary
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[2023:RJ-JD:32579] (2 of 9) [CW-18454/2018]
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Reserved on: < > 04/10/2023
Pronounced on: < > 13/10/2023
1. Though the matter is listed under 'Orders' category' but upon
the joint request made by learned counsel for the parties, the
matter is finally heard.
2. The instant writ petition is filed under Article 226 of the
Constitution of India claiming following reliefs:
"It is, therefore, humbly and respectfully prayed that thi
writ petition of the petitioner may kindly be allowed and
by an appropriate writ order or directions:-
(i) The impugned order dated 28.07.2007 (Annex-P/2)
passed by the respondent no. 3 and the order dated
11.06.2018 passed by respondent no. 2 may kindly be
quashed and set aside with all consequential benefits.
(ii) The respondents may kindly be restrained to open the
water course through the land of petitioners."
3. The factual matrix of the case in brief are that the
agricultural land of petitioners is situated in Chak 2 KBM, Stone
No. 327/386 in Killa No. 13/2, Killa No.14 to 25 ad-measuring13
Bighas Command land, in the name of one Shri Sahiram, who is
the husband of Petitioner No. 1 and father of Petitioners No. 2 to
5, who expired on 29.03.2007. In regular records, the land is still
recorded in the name of Shri Sahiram. The land aforesaid was
earlier cultivated by respondent No.4 - Krishan Kumar whose land
is situated in Murraba No. 327/387. Later on Respondent No. 4
submitted an application before the respondent No.3 - Executive
[2023:RJ-JD:32579] (3 of 9) [CW-18454/2018]
Engineer for sanction of the water-course through the land of the
petitioners situated in Killa Nos. 15, 16 and 25.
4. The Respondent No. 3 vide his order dated 28.7.2007
(Annex.2) issued permission for water-course through the land of
the petitioners and subsequently, the water course was sanctioned
in a camp conducted by the Department in Public Hearing
Program. However, the aforesaid order dated 28.7.2007
(Annex.2) was not given effect till the month of February, 2017.
Thereafter, when one Shri Banwarilal - respondent No.5 tried to
open the water-course through the land of the petitioners and the
petitioners objected to the same. The petitioners were informed
that the water-course has already been sanctioned through their
land as per the consent of the respondent No.5, who immediately
submitted an application before the Executive Engineer stating
that he has not given any affidavit in favour of the respondent No.
4 and the same is forged one.
5. The respondent No. 3 thereafter called report from the
authorities and subsequently the authority concerned submitted a
report (Annex.4) indicating therein that the water-course is
running as per the chak plan prepared by the Patwari concerned.
In the chak plan of the Patwari, considered from A to B water
course is running and Respondent No. 4 is claiming water course
from B to C also and, therefore, as per the report of authority the
water course was not running from A to C and was operative
between point A to B.
6. The petitioners filed appeal before the Superintending
Engineer - respondent No.2 challenging the order dated
[2023:RJ-JD:32579] (4 of 9) [CW-18454/2018]
28.07.2007 (Annex.2). The Respondent No. 2, vide his order
dated 11.6.2018 (Annex.6), rejected the appeal, observing that
the water-course is presently running there.
7. Hence, aggrieved by the order dated 28.7.2007 (Annex.2)
passed by Respondent No. 3 and order dated 11.6.2018 (Annex.6)
passed by Respondent No. 2, the petitioners have preferred the
present writ petition.
8. The learned counsel for the petitioners submitted that:
(A) the procedure for opening the water course has been very
well prescribed under Sections 21 to 28 of the Rajasthan Irrigation
and Drainage Act, 1954 (hereinafter referred to as "the Act of
1954"), which provides that the final order for sanctioning the
water-course shall only be passed by the District Collector,
whereas in this case, the water-course has been sanctioned by the
respondent no.2, who is not competent to sanction the water-
course and hence, the order dated 28.7.2007 (Annex.2) is without
jurisdiction;
(B) the respondent No.2, while passing the order dated 28.7.2007
(Annex.2), did not issue any notice to the petitioners or to any
other effected person, hence, principles of natural justice have
been violated;
(C) the consent obtained by respondent No. 4 from performa
respondent No. 5 has been obtained through forged means
because the performa respondent No. 5 is illiterate person. The
performa respondent No. 5 is not competent to submit any kind of
affidavit for the entire land as the land also belongs to the
petitioners;
[2023:RJ-JD:32579] (5 of 9) [CW-18454/2018]
(D) the petitioners filed an appeal before respondent no.2 on the
grounds of violation of Section 21 to 28 of the Act of 1954 and
also the violation of principles of natural justice, but the
Respondent No.2 without considering any of the contentions
raised by the petitioners, rejected the appeal vide his order
11.6.2018 (Annex.6) by a non-speaking order; and
(E) the respondent No.2 while rejecting the appeal observed that
the water-course is running at present, whereas the aforesaid
observation is not correct as the water-course sanctioned has not
been opened through the land of the petitioners, which is evident
from the report (Annex.4) made on the application of Respondent
No.5.
9. The learned counsel for the petitioners placed reliance upon the
judgment dated 02.03.2016 passed by this Court in SBCWP
10809/2015 in Hanuman & Anr. v. State of Rajasthan,
wherein the Court held that:
"5. As per the provisions of Section 21 of the Act, any
person desiring of construction of the new water course
may apply to the Divisional Irrigation Officer giving
necessary details as set out in the said section. If the
Divisional Irrigation Officer considers that construction of
such water course is expedient and that the statements
made in the application are true, shall take the
appropriate steps as set out in Section 22 of the Act and
shall forthwith publish a notice in every village through
which the water course is proposed to be taken. The
person interested in the land or water course are entitled
to raise objections to the construction of new water course
which are required to be decided by the Collector as per
the mandate of provisions of Section 24 of the Act and
thereafter, the procedure as laid down under Sections 25
to 28 is required to be followed."
10. The learned counsel for the petitioners further placed reliance
upon the judgment dated 15.04.1986 passed by this Court in
[2023:RJ-JD:32579] (6 of 9) [CW-18454/2018]
SBCWP 2396/1985, Indar Raj v. Executive Engineer,
wherein the Court held that:
"5. The first question which emerges for consideration is
as to who is competent to pass an order when applications
are presented under s.21 and s.23. Treating the present
application to be an application for the construction of a
new water course under s.21 still s.24 of the Act would be
attracted. For consideration of the application under s. 24
of the Act notice is required to be published under s.22 of
the Act and within 30 days from the date of publication of
notice persons interested in the land or in the water
course have got a right to apply to the Collector by
petition stating their objections to the construction of the
new water course and under s.25, even when objections
are not made it is only the Collector who is required to
give notice to the Divisional Irrigation Officer and then the
Collector shall proceed to place the applicant in occupation
of the land marked out. Thus it would appear that under
s.25 of the Act, the final order requiring to place the
applicant in occupation of the land is to be passed by the
Collector and the applicant cannot be put into occupation
of the land by the Irrigation Authorities and no
construction of water course would be possible without
placing the applicant in the occupation of the land. Thus
for the construction of a new water course procedure as
provided under s.22, 24 and 25 and subsequent provisions
have to be followed. Even when the applicants are already
in occupation of the land, still it is only by the order of the
Collector the land has to be set apart for construction of
the new water course. The new water course may be
allowed to be constructed either solely within the land in
occupation of the applicant or even beyond the land which
is not in occupation of the applicant. In any case it is only
the Collector who is the competent authority to deal with
the application and pass final order thereon. Admittedly,
these relevant provisions have not been followed and the
application has not at all been dealt with by the Collector
at any stage. It may be mentioned that the land which is
set apart for the water course can only be put to use for
that purpose, that is, for the purpose of water course only
and for no other purpose. The character of the land thus is
changed. Its character is changed into a watercourse. The
effect of the provision under ss.24, & 25, appears to be
that even when the land is in occupation of the applicant,
still the character of the land gets changed by the order of
the Collector and the applicant is permitted to construct a
new water course on the land which is set apart for the
construction of a new water course is sought, and by that
construction if the rights of irrigation of other persons are
affected, then they have got a right to submit their
objections before the Collector and such objection can
only be considered by the Collector under s.24."
[2023:RJ-JD:32579] (7 of 9) [CW-18454/2018]
11. Per contra, learned counsel for the respondent-State
submitted that:
(A) the petitioners were given required opportunity of hearing as
provided under the Act of 1954 but the petitioners failed to plead
any error in the decision making process of the Authorities and,
therefore, the decision based on findings of technical experts and
based on technical reports cannot be altered and entertained
under the extra-ordinary jurisdiction of this Hon'ble Court;
(B) the order dated 28.7.2007 (Annex.2) passed by Respondent
No. 3, was primarily based upon the fact that Respondent No. 5
has given his consent to Respondent No. 4 for construction of
Water Course on the land of the petitioners;
(C) the provisions provided under Section 21 to 28 of the Act of
1954 are to be followed only in the event when there is no
consent from the land-holder, whereas in the present case, the
consent (Annex.3) was given by Respondent No.5 in the year
2007 upon which the Respondent No. 2 vide his order dated
28.7.2007 (Annex.2) sanctioned the water-course and, therefore,
the order 28.7.2007 (Annex.2) is valid and legal, as it was based
upon the consent of Respondent No. 5; and
(D) that the order dated 28.07.2007 passed by the respondent
No.3 - the Executive Engineer has been challenged in appeal on
10.10.2017 and thus, has committed delay of more than 10 years.
12. Heard learned counsel for the parties and perused the
material available on record as well as the judgments cited at bar.
13. This Court finds that there are concurrent findings with
regard to water-course in Muraba No.327/386 and both the
[2023:RJ-JD:32579] (8 of 9) [CW-18454/2018]
authorities below have concurrently observed that there was
consent of the cultivator of Muraba No.327/386 and that no
objections were raised by any other cultivators including the
petitioners pursuant to the notice dated 08.06.2007, issued by the
respondent No.2 - the Executive Engineer and thus permission for
constructing the water-course was granted. The respondent No.2
- Superintending Engineer also observed that the owner of the
land of Muraba No.327/386 and the appellants-petitioners have
given consent for the water-course in question which is operative
on the spot.
14. It is well settled proposition of law that a concurrent finding
of the fact is binding, unless it is pointed out that it was recorded
de hors the pleadings or it was based on no evidence or based on
misreading of the material on records and documents. In the case
in hand, the respondent No.3 - the Executive Engineer issued
Notice dated 08.06.2007 and asked for objections in regard to the
water-course on Muraba No.327/386 and when no objections were
raised and since there was a consent of the cultivator of Muraba
No.327/386, water-course was sanctioned on the said land for
irrigation of land situated in Muraba No.327/387. The respondent
No.2 - the Superintending Engineer (Appellate Authority) also,
while concurring with the finding of the respondent No.3 - the
Executive Engineer, dismissed the appeal and observed that the
water-course is operative in Muraba No.327/386 with consent of
the appellants (petitioners herein) and the owner of the land,
namely, Devaram and upheld the order of the respondent No.3 -
the Executive Engineer dated 28.07.2007.
[2023:RJ-JD:32579] (9 of 9) [CW-18454/2018]
15. This Court also finds that the water-course in question is
operative since 28.07.2007 at the land in question belonging to
respondent No.4 and the appeal has been preferred on
10.12.2017, i.e. after about a delay of more than 10 years in filing
the appeal and no explanation whatsoever has been given by the
petitioners for the inordinate delay in filing the appeal before
Respondent No. 2.
16. This Court also finds that Section 23 of the Act of 1954 applies
to only those cases where a person desires the water Course to be
transferred from the present owner to himself and in the present
case, there is no transfer of the existing Water Course at the land
in question belonging to the petitioners father, the Water Course
was already running through the land in question since
28.07.2007, thus, the respondents were not required to invoke
the provisions laid down under Section 23 of the Act of 1954 in
the present case and the petitioner's contention that the
respondents have failed to comply the provisions of Section 23 of
the Act of 1954 is without merits.
17. In view of the above, this Court does not find any ground to
interfere in the matter and the writ petition being devoid of merits
is dismissed.
18. The stay application and all other pending applications, if
any, also stand dismissed.
(DR. NUPUR BHATI),J
164-/skm/-
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