Rajasthan High Court - Jodhpur

Chet Ram vs Duni Ram on 4 September, 2023

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 12639/2023

1. Chet Ram S/o Raja Ram, Aged About 48 Years, Resident Of Village Jasana, Tehsil Nohar District Hanumangarh.

2. Sant Lal S/o Shri Harchand, Aged About 52 Years, Resident Of Ward No. 5, Gadhbas, Jasana Tehsil Nohar, District Hanumangarh.

3. Kana Ram S/o Shri Hira Ram, Aged About 46 Years, Resident Of Ward No. 2, Jasana Tehsil Nohar, District Hanumangarh.

----Petitioners Versus

1. Duni Ram S/o Hira Ram, Resident Of Jasana, Tehsil Nohar, District Hanumangarh.

2. State Of Rajasthan, Through District Collector, Hanumangarh.

3. Executive Engineer, Water Resources Division Nohar Tehsil Nohar, District Hanumangarh.

4. Asstt. Engineer, Water Resources Division Nohar Tehsil Nohar, District Hanumangarh.

                                                                   ----Respondents


For Petitioner(s)            :    Mr. R.S. Choudhary.
For Respondent(s)            :    Ms. Abhilasha Bora, AGC assisted by
                                  Ms. Saloni Malpani.
                                  Mr. Rakesh Matoria.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 29/08/2023 Pronounced on 04/09/2023

1. This writ petition under Article 227 of the Constitution of

India has been preferred claiming the following reliefs:

(2 of 6) [CW-12639/2023]

"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction:

(i) The impugned order dated 03.08.2023 (Ann.13) passed by8 learned Addl. District Judge No.1, Nohar District Hanumangarh may kindly be quashed and set aside.

(ii) The order dated 20.07.2023 (Ann.11) passed by learned Civil Judge, Nohar District Hanumangarh may kindly be ordered to be maintained.

(iii) The respondent no.3 may kindly be directed to remove the siphon pulia and ordered to construct the pulia as per the permission order dated 11.09.2019 (Annex-1).

(iv) Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioners."

2. Brief facts of the case, as placed before this Court by learned

counsel for the petitioners, are that the petitioners are having an

agricultural land, wherefor they are getting the irrigation facility

from pucca water course between stone no.316/402 & stone

no.316/403. The respondent no.1 filed an application for

construction of the pucca pulia over the said water course to reach

his land situated in Kila No.2 of Chak 24 JSN Stone No. 316/403,

and permission for the same was granted by the respondent no.3.

2.1. Thereafter, the respondent-authorities issued a notice on

31.05.2022 to the respondent no.1, stating therein that the

respondent no.1 has not constructed the pulia, strictly as per the

sanction order.

2.2. The respondent no.1, being aggrieved, filed a suit for

permanent injunction along with an application seeking temporary

injunction against the removal of the constructed siphon pulia

(3 of 6) [CW-12639/2023]

before the learned Civil Judge, Nohar. Thereafter, the learned

Court below, upon hearing the parties, vide order dated

04.02.2023, rejected the temporary injunction application. The

respondent no.1 preferred an appeal, against the said order,

before the learned Additional District Judge No.1, Nohar, District

Hanumangarh, which was allowed vide order dated 20.02.2023,

while remanding the matter back to the learned Trial Court for

fresh consideration.

2.3. Thereafter, the learned Trial Court, upon hearing the parties

again rejected the temporary injunction application, vide order

dated 20.07.2023. The respondent no.1 again preferred an appeal

before the Additional District Judge No.1, Nohar, which was

allowed vide order dated 03.08.2023 and the injunction order was

passed, whereby it was ordered that the siphon pulia shall not be

removed, and the usage thereof shall not be disturbed.

3. Learned counsel for the petitioners submitted that the siphon

pulia was constructed by the respondent no.1 without the sanction

order, and therefore, no prima facie case was made out in favour

of the respondent no.1; thus, the impugned order dated

03.08.2023 is not justified in law.

3.1. Learned counsel further submitted that the respondent no.1

constructed the siphon pulia against the prescribed parameters;

the respondent no.1 has also constructed two chambers by

damaging the pucca water course and also installed the pipe, in

deep, due to which the water flow as provided to the petitioners

would be obstructed.

(4 of 6) [CW-12639/2023]

3.2. Learned counsel also submitted that the learned Court

below, after hearing the parties, vide order dated 04.02.2023, has

rightly rejected the temporary injunction application filed by the

respondent no.1, but the learned Appellate Court below has

accepted such prayer for the temporary injunction, without any

cogent reason, and therefore, the impugned order dated

03.08.2023 is not sustainable in the eye of law.

4. On the other hand, learned counsel appearing on behalf of

the respondent no.1, while opposing the aforesaid submissions

made on behalf of the petitioners, submitted that due to the

khala, the respondent's land was divided into two parts, and

therefore, the respondent, after obtaining due permission from the

concerned Department, constructed the siphon pulia in question at

its own expenses, and thus, the order for removal of pulia in

question was contrary to law; thereafter, the learned Appellate

Court below has rightly passed the impugned order.

4.1. It was also submitted that as per the report dated

13.07.2023 of the Executive Engineer, Water Resources Division,

Nohar, the water was running for last 4 years from the siphon

pulia and no damage was caused to the irrigation facility. It was

also submitted that as per the said report, the neighbouring

farmers have no issue in regard to such continuing irrigation

facility, and therefore the impugned order passed by the learned

Appellate Court below is justified in law.

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

record of the case.

(5 of 6) [CW-12639/2023]

6. This Court observes that the respondent no.1 constructed

the siphon pulia above the aforementioned water course to reach

his land, and thereafter the respondent-Department issued notice

calling upon him to remove the said pulia, because the respondent

no.1 has done the same, without the requisite sanction order. The

respondent no.1 filed a suit for permanent injunction along with

an application seeking temporary injunction before the learned

Trial Court, but the temporary injunction application was rejected

vide order dated 04.02.2023. Aggrieved by the said order, the

respondent no.1 filed an appeal before the learned Appellate Court

below, which was allowed vide the impugned order dated

20.02.2023, while passing temporary injunction order.

7. This Court further observes that the learned Appellate Court

below in the impugned order mentioned that the Executive

Engineer, Water Resources Division itself visited the disputed site

and conducted the inspection, whereupon it was found that the

water was running in the water course for the last four years in an

appropriate manner, and that, the neighbouring farmers have also

no objection regarding the pulia in question, and that, not a single

farmer is adversely affected thereby; the same is reflected in the

report dated 13.07.2023 of the Executive Engineer, Water

Resources Division; the said report is reproduced as hereunder:

"pd 24 ts,l,u ds dkLrdkjksa ds izkFkZuk i= fnukad 11 .07.2023 iqfy;k ckcr~ lgk;d vfHk;Urk dks vknsf"kr fd, tkus ds mijkar lgk;d vfHk;Urk us viuh fjikksVZ esa crk;k fd d .fu.vfHk. }kjk ekSdk tkap esas tk;k fd vkpZ iqfy;k dk fuekZ.k dh Lohd`fr nh xbZ Fkh] ijUrq dkLrdkj }kjk lkbZQu iqfy;k dk fuekZ.k dj fy;k x;k gS A vkt fnukad 13 .07.2023 dsk d.fu.vfHk. }kjk V~;wcosy ls ikuh izokfgr dj ns[kk x;k ftlesa ikuh fcuk

(6 of 6) [CW-12639/2023]

fdlh vojks/k ds py jgk gS] ,oa vkl&ikl ds dkLrdkjksa ls okrkZyki fd;k x;k ftlesa dkLrkdjksa }kjk crk;k x;k fd lkbZQu iqfy;k ls gesa fdlh izdkj ls flapkbZ lqfo/kk esa ck/kk ugha gks jgh gS] lkbZQu iqfy;k fuekZ.k ls orZeku esa [kkys dks fdlh Hkh izdkj ls uqdlku ugha igqap jgk gS A o'kZ 2019 esa iqfy;k Lohd`r gqbZ ysfdu HkkSfrd fLFfr ds vuqlkj [kkys dh ÅapkbZ vf/kd gksus ls dkLrdkj ds [kpkZ ij lkbZQu iqfy;k dk fuekZ.k fd;k x;k Fkk] mDr lkbZQu iqfy;k ls fiNys pkj lkyksa ls flapkbZ ikuh py jgk gS] blfy, lkbZQu iqfy;k ls vU; dkLrdkjksa dks dksbZ {kfr ugha gksus ls izkFkZuk i= [kkfjt fd;k tkrk gSA"

8. This Court also observes that the respondent no.1 had

constructed the pulia in question for approaching his agricultural

land, and that, prima facie case was clearly made out for

temporary injunction. This Court further observes that the present

case clearly falls under the parameters for grant of the temporary

injunction, and therefore, the impugned order passed by the

learned Appellate Court below is perfectly justified in law.

9. Thus, in light of the aforesaid observations and looking into

the factual matrix of the present case, this Court does not find it a

fit case so as to grant any relief to the petitioners in the present

petition.