Rajasthan High Court - Jodhpur
Balram vs The State Of Rajasthan ... on 20 January, 2025
Bench: Manindra Mohan Shrivastava, Nupur Bhati
[2025:RJ-JD:3617-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Spl. Appl. Writ No. 1178/2024
1. Balram S/o Sh. Prithvi Raj, Aged About 43 Years, R/o
Ward No. 3, Near Laxmi Narayan Mandir, Village Kohalla,
14-Ssw, Hanumangarh, District Hanumangarh.
2. Pratap Kumar S/o Sh. Hansraj, Aged About 33 Years, R/o
Ward No. 8, 14-Ssw, Hanumangarh, District
Hanumangarh.
3. Jot Ram S/o Sh. Birbal Ram, Aged About 35 Years, R/o
Ward No. 8, Hanuman Mandir, 14-Ssw, Dhani Kohalla,
Hanumangarh, District Hanumangarh.
4. Prithvi Raj S/o Sh. Sahi Ram, Aged About 63 Years, R/o
Ward No. 3, Near Laxmi Narayan Mandir, Village Kohalla,
8-Ssw, Hanumangarh, District Hanumangarh.
5. Ranveer S/o Sh. Sahab Ram, Aged About 40 Years, R/o
Ward No. 8, Kohalla, 14-Ssw, Hanumangarh, District
Hanumangarh.
----Appellants
Versus
1. The State Of Rajasthan, Through The Secretary,
Department Of Water Resources, Secretariat, Rajasthan,
Jaipur.
2. The Chief Engineer, Water Resource (North)
Hanumangarh, District Hanumangarh.
3. The Superintending Engineer, Water Resources, Circle
Hanumangarh, District Hanumangarh.
4. The Executive Engineer, Water Resources, Division-Ii,
Hanumangarh.
5. The Assistant Engineer, Ghaggar Sub-Division, Water
Resources, Hanumangarh.
6. Rajkumar S/o Saldeep, R/o Chak Fatehgarh, Khileribas,
Tehsil And District Hanumangarh.
7. Surender Kumar S/o Sh. Manaram, R/o Fatehgarh,
Godarabas, Tehsil And District Hanumangarh.
----Respondents
For Appellant(s) : Mr. Hamir Singh Sidhu with
Mr. Pradeep Singh Khosa.
For Respondent(s) : Mr. Sajjan Singh Rathore, AAG with
Mr. Rajdeep Singh Chouhan.
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HON'BLE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Reportable
20/01/2025
1. Heard.
2. With the consent of learned counsel for the parties, this
appeal is being finally decided today.
3. This appeal is directed against the impugned order dated
07.10.2024 passed by the learned Single Judge whereby, a bunch
of writ petitions led by S.B. Civil Writ Petition No.16135/2024, filed
by the petitioners, was dismissed.
4. The factual matrix of the case leading to the impugned order
and this appeal are that in the year 2017, a new canal "FTG
Minor" was constructed between the outlets Nos.10 to 40 of the
main canal Shyam Singh Wala ('SSW') comprising 45 outlets. The
P-Form qua the new canal "FTG Minor" was prepared in the year
2017 itself and as per the said P-Form, the canal was constructed
and the outlets were provided.
5. The appellants-petitioners are those who were beneficiaries
of supply of water to the outlets which were opened at that point
of time.
6. However, certain complaints were made by another set of
agriculturists of Chak 6-FTG complaining that they were not
receiving water supply as per the total CCA of the Chak. It is
further borne out from the record of the case that on such
complaints received, the fourth respondent namely the Executive
Engineer, Water Resources, Division-II, Hanumangarh, ordered the
Assistant Engineer to make an enquiry in that regard and submit a
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report. On petitioners own showing, a report dated 20.12.2023
was submitted by the Assistant Engineer to the fourth respondent
which was in turn sent to third respondent namely the
Superintending Engineer, Water Resources Circle, Hanumangarh.
Vide letter dated 11.03.2024, it was decided to change the size of
the outlet of Chak 1-6 FTG. Acting upon the report of the Assistant
Engineer, the size of the outlets were altered and it resulted in
amendment in the size of the outlet. A letter to the Assistant
Engineer was issued on 11.03.2024 along with letter dated
20.12.2023. The same was forwarded on 03.04.2024 by the third
respondent to the second respondent namely the Chief Engineer,
Water Resources (North), Hanumangarh. Finally vide impugned
order dated 20.05.2024, second respondent gave its sanction.
7. The aforesaid proceedings towards amendment in the size of
the outlet and order dated 20.05.2024 came to be challenged at
the instance of the petitioner by filing the writ petition.
8. The reply of the respondents in sum and substance was that
the operation of the existing outlet was only a temporary
measure. The stand taken in the reply was that though the
scheme was finalized in the year 2017, construction of lines were
not completed and a temporary arrangement continued which was
not in accord with the sanctioned scheme of distribution of water
to the main canal as per approved new Fatehgarh Minor. Upon
receipt of report from the Assistant Engineer, having found that
the existing outlets were not in accord with the approved scheme
of distribution, change in the size of outlet was proposed which
was finally approved and sanctioned by the competent authority
vide its order dated 20.05.2024.
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9. Two main submissions were raised before the learned Single
Judge to assail the correctness and validity of the order dated
20.05.2024. The first ground taken was that any change in the
size of the outlet amounts to variation or amendment in the
supply system and therefore, the same mandatorily required prior
permission of the State Government as mandated under Rule 11
(2) of the Rajasthan Irrigation and Drainage Rules, 1955
['hereinafter referred to as the Rules of 1955']. The second name
of submission was that in any case if there was any change
proposed, it required an opportunity of hearing to be afforded to
all the petitioners and those agriculturists who were in receipt of
the benefit of the existing outlets since 2017.
10. The learned Single Judge rejected both the contentions.
According to the learned Single Judge, since the present case was
not a case of any alteration in the approved system of distribution
of water for the purpose of irrigation to the agriculturists but only
to bring about a change/alteration to make the distribution system
through various outlets in accord with the approved and finalized
supply scheme in the past, State's approval was not necessary.
11. Assailing correctness and validity of the order passed by the
learned Single Judge, learned counsel for the petitioner would
submit that finding of the learned Single Judge that the existing
system of distribution of water to various outlets, was not in
accord with the approved scheme of distribution, even assuming
that it could be made a basis, it was within the mischief of
Provision contained in Rule 11(2) of the Rules of 1955 as the Rule
does not refer to the causes behind alteration or modification in
the existing distribution system. Even if the alteration was
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required to bring it in accord with the approved distribution
system on the ground that the existing system was not in
conformity with the approved design and the system of
distribution, that also required approval of the State Government.
In support of his submission, reliance has been placed on the
order passed by the Division Bench of this Court in the case of
"Jarnel Singh and Anr. v. State of Rajasthan and Ors." passed in
the writ petition bearing D.B. Civil Writ Petition No.4707/1991 and
the order passed by the learned Single Bench of this Court in the
case of "Randheer Singh and Ors. v. State of Rajasthan and Ors."
passed in writ petition bearing S.B. Civil Writ No.9129/2015.
12. The other submission of learned counsel for the petitioners is
that though the petitioners raised specific grounds to challenge
the impugned order that it violated the principles of natural
justice, the learned Single Judge has not recorded any finding on
this aspect. He submits that whether or not the existing operation
of existing system was in accord with the approved scheme or the
amendment proposed is in line with the same, could not have
been decided without affording opportunity of hearing to the
affected agriculturists including the petitioners. In support of this
contention, reliance has been placed on the decision of the
Division Bench judgment of this Court in the case of "Jaswant v.
Mani Ram and Ors." passed in writ petition bearing D.B. Civil
Special Appeal (Writ) No.673/2003 and the judgment of the
learned Single Bench in the case of "Amar Singh and Ors. v. State
of Rajasthan and Ors." passed in the writ petition bearing S.B.
Civil Writ Petition No.5867/1992.
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13. Per contra, learned Additional Advocate General representing
the respondent-State submits that the authorities which have
been cited by the learned counsel for the petitioners are
distinguishable on facts. He would submit that it is not a case
where the authorities proposed to change the existing system of
supply of water resulting in alteration in the outlet. He would
submit that in fact, the stand of the respondents has been that
the present arrangement which was going on, was illegal and
against the approved scheme of distribution. When complaints
were made, an enquiry was made and on the basis of the report,
orders were passed to allow all other agriculturists supply of water
who were otherwise illegally deprived of the supply of water for
the irrigation facility. Even though, the scheme was earlier
prepared, it was not being followed. In such circumstances, it is
argued, Provision of Rule 11 (2) of the Rules of 1955, is not
attracted. He further submitted that even through the learned
Single Judge may not have examined the issue as to whether the
order is liable to be quashed on the ground of violation of
principles of natural justice, the fact remains that even while filing
this petition, the petitioners have not come out with any pleading
or any ground as to why the report could not be acted upon. He
would submit that mere allegation of violation of principles of
natural justice may not be a ground to grant relief in a given case
on its own facts and circumstances.
14. We have heard learned counsel for the parties and perused
record of the case.
15. The learned Single Judge, upon examination of material
record, has recorded a finding that the present implementation of
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the sanctioned plan of the year 2017 cannot be termed to be a
change in the established and sanctioned system of water supply.
Present is a mere implementation of the already sanctioned plan
and therefore, it does not require sanction/permission of the State
Government.
16. On facts, the case in hand is not where the respondents have
taken stand that because of the change in the circumstances, it
was decided to amend the existing sanctioned plan which led to
preparation of a new sanctioned plan and consequent
amendment/alteration in the size of the outlet. The stand of the
respondents is that the existing supply in operation was only
temporary and against the sanctioned plan and the efforts made
by the respondents was only to bring it in accord with the
sanctioned plan.
17. Whether in such a factual premise, Rule 11(2) of the Rules of
1955 would be attracted, is a question which falls for our
consideration.
18. The provision contained in Rule 11 of the Rules of 1955 (as
amended from time to time) provide for distribution of the canal
irrigation. The amended Rule [(as quoted in the order of the
learned Single Bench in the case of Randheer Singh and Ors.
(supra)], provides that no material change shall be made in the
established and sanctioned system of canal distribution except
with the previous order of the State Government. What therefore,
is ordained and mandated is that any material change in
established and sanctioned system of canal distribution shall not
be allowed to be varied except with the permission of the State
Government in a case where the respondent authorities propose a
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change in the established and sanctioned system of canal
distribution. Certainly, in those cases, the approval of the State
Government would be necessary as per the provision. However, in
our opinion, where there is no change in the established and
sanctioned system of canal distribution but where the appropriate
correctional measures are taken to increase or decrease the size
of the outlet to bring it in conformity with the existing system of
canal distribution, Rule 11(2) of the Rules of 1955 will not come in
the way and it would not require approval of the State
Government. This is for the reason that when a plan of distribution
is framed, much exercise is undertaken by the officials. Detailed
proceedings are drawn and then, approval from the competent
authority is obtained before the system of canal distribution is
finalized. Once that process is already undertaken, it is only when
a change is required to be brought in the system that an approval
from the competent authority would be necessary. However, in a
case where a canal distribution system has already been
established and sanctioned but on complaints it is found that
supply of water is not taking place as per the established and
sanctioned system of canal distribution, it would not be a case of
material change in the established and sanctioned system of canal
distribution but a case of violation of established and sanctioned
system of canal distribution. Therefore, in such cases prior
approval of the State Government is not required. Interpretation
of the rule as suggested by learned counsel for the appellant not
only results in amendment in the rule but is impracticable and
may cause serious inconvenience. There may be cases and cases
time and again where complaints may be made before the
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authorities that supplies thorough the outlets is not being done in
accordance with the established and sanctioned system of canal
distribution. To say that every time when such complaints are
made and an attempt is made to bring the distribution in accord
with the established and sanctioned system of canal distribution,
approval of the State Government will have to be obtained, in our
opinion, is neither desirable, nor is reflected from fair and logical
interpretation of Rule 11(2) of the Rules of 1955.
19. Reliance has been placed on a Division Bench judgment of
this Court in the case of Jarnel Singh (supra). On facts, that was a
case where the validity of Rule 11(3) of the Rules of 1955, was
challenged on the ground that the said rule is ultravires the
enabling act, as the Provision contained in Section 31 of the
Rajasthan Irrigation and Drainage Act, 1954 ['hereinafter referred
to as the Act of 1954'] do not allow the rule making authority to
frame rules on those aspects. This was the main contention which
was under consideration before the Division Bench. The Division
Bench interpreted the Provision contained in Section 31 of the Act
of 1954 and then, upheld the validity of the rule holding that Rule
11(3) of the Rules of 1955 is not ultravires the enabling provisions
under the Act. What has been observed by the Division Bench in
para 16 and 17 of the judgment, in our respectful consideration,
does not deal with the issue in hand in the present case as to
whether it would be necessary to obtain the approval of the State
Government even in case the size of the outlet is required to be
corrected to bring it in accord and line with the established and
sanctioned canal distribution system.
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20. The other judgment of a learned Single Bench of this Court
in the case of Randheer Singh (supra) is not a proposition for the
authority that under all circumstances, including cases where the
correctional measures are taken to bring the outlet in accord with
the established and sanctioned canal distribution system, approval
of the State Government would be required to be obtained. As the
facts of that case reveal, the stand taken by the respondents in
that case was that endeavour of the respondents authorities to
repair/relocate the mogas/outlets is totally bonafide and inevitable
because it is a consequence of modernization of the canal. Clearly,
therefore, there was an attempt to modify the canal on certain
considerations. On facts, that was not a case where the authorities
had proceeded to alter the size of the outlet to bring it in accord
with the established and sanctioned canal distribution system.
Therefore, that judgment is also distinguishable on facts.
21. We find that though a ground was taken by the petitioners
that the order impugned is in violation of principles of natural
justice, relying upon a Division Bench judgment of this Court in
the case of Jasvant v. Mani Ram & Ors. (supra) wherein it was
held that an order affecting established and sanctioned system of
irrigation could not be passed without notice to the parties
affected by such change in the established and sanctioned system
of irrigation, on facts that was a case where an attempt was made
to bring about the alteration in the established and sanctioned
system of irrigation. The other judgment in the case of Amar
Singh & Ors. (supra) is also, for the same reason distinguishable
on facts.
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22. Even though, the learned Single Judge has not considered
this aspect, we have allowed the learned counsel for the
appellants to raise this issue. We would have granted indulgence if
on facts, it would have been found that serious objection has been
taken to the report of the Assistant Engineer, which was made a
basis to issue the impugned order. However, in the entire petition,
there is no whisper that the report of the Assistant Engineer on
certain grounds was not factually correct and had an opportunity
of hearing been afforded, the petitioner would have satisfied the
authority that the operation of existing water distribution was in
accord with the established and sanctioned canal distribution
system and the report had the effect of violating existing canal
distribution system. But on facts, no such case has been built up
by the petitioner.
23. It is well settled that principles of natural justice are not
unruly horse. Unless an appropriate case from facts is made out,
order could not be held bad only on a technical ground. In the
absence of there being any challenge to the correctness and
validity of the report, much less any case made out that the
supply system which was in currency and which was sought to be
corrected was as per sanctioned scheme and not the new one, we
are not inclined to interfere only on the ground of violation of the
principles of natural justice.
24. Therefore, we are not inclined to interfere with the order
dated 07.10.2024 passed by the learned Single Judge in a bunch
of writ petitions led by S.B. Civil Writ Petition No.16124/2024 and
thus, the instant special appeal (writ), is dismissed.
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25. Before parting with the case, we hasten to clarify that if in
future, any material is brought before the authorities to satisfy
otherwise, this order shall not come in the way of the authorities
in taking such appropriate measures as may be necessary and
required to ensure that the operation of the water irrigation
system is in accord with the approved scheme.
(DR. NUPUR BHATI),J (MANINDRA MOHAN SHRIVASTAVA),CJ
127-/Devesh Thanvi/-
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