GURDEEP SINGH Vs. SUPERINTENDING IRRIGATION OFFICER

JUDGEMENT

(1.) THIS petition is directed against the order of the Superintending Engineer Irrigation dated 1. 6. 1979 whereby the recommendation made by the Executive Engineer that the squares no. 34 and 44 of Chak 19 GG may be transferred to Chak 2ll for irrigation was not confirmed.

(2.) LEARNED counsel for the petitioner submitted that the order of the Superintending Engineer is without jurisdiction in as much as the Divisional Irrigation Officer alone is competent to deal with the matter and only appeal lies to the Superintending Engineer under Rule 11 sub-rule (2) of Rajasthan Irrigation and Drainage Rules 1955. According to the learned counsel for the respondent the relevant provision which deals with the matter is section 20 of the Rajasthan Irrigation & Drainage Act, 1954 and Rule 11 has no application. He relied on a decision of this Court in Jaimal Ram Vs. State of Rajasthan and others wherein it has been held that allowing extra land to be irrigated from existing outlet does not amount to alter distribution system and such a case is covered by Section 20. For Proper appreciation of the controversy it would be appropriate to refer to section 20 as well as rule 11. Section 20 reads as under:- 20 Supply of water through intervening water course (1) Whenever application is made to a Divisional Irrigation Officer for a supply of water from an Irrigation work and it appears to him expedient that such supply should be given and that it should be conveyed through some existing water course he shall give notice to the person responsible for the construction and maintenance of such water course to show cause on a day not less than fourteen days from the date of such notice why the said supply should not be so conveyed and after making enquiry on such day the Divisional Irrigation Officer shall determine whether and on what condition the said supply shall be conveyed through such water course. (2) When such officer determines that a supply of water from any irrigation work may be conveyed through any water course as aforesaid his decision shall when confirmed or modified by the Superintending Irrigation Officer, be binding on the applicant and also on the persons responsible for the maintenance of the said water course. (3) Such applicant shall not be entitled to use such water course until he has paid the expense of any alteration of such water course necessary in order to his being supplied through it and also such share of the first cost of such water course as the Divisional of Superintending Irrigation Officer may determine. (4) Such applicant shall also be liable for his share of the cost of maintenance of such water course so long as he use it. " "11 Distribution of canal Irrigation (1) no irrigation from canal will be drawn from outlets other than those authorised by the Divisional Irrigation Officer- qutters not so authorised may be removed and no claims in this respect shall lie against the Government persons violating this rule will be liable to punishment under section 55 (9) of the Act. (2) No material change shall be made in an established system of canal distribution except under the orders of the Divisional Irrigation Officer. Appeal against the orders of the Divisional Irrigation Officer, shall lie to the Superintending Officer within 15 days from the date of issue of such orders and his decision in the matter shall be final. (3) Notice for the reduction and removal of outlets with brief reasons therefore, shall be issued by the Divisional Irrigation Officer and given adequate publicity through Panchayats requiring all persons effected by such reduction or removal, who may wish to make objection to submits their objections in writing to the Divisional Irrigation Officer within 15 days from the date of issue of such notice. The Divisional Irrigation Officer shall after considering all such objection made necessary order. Appeal if any against the orders of the Divisional Irrigation Officer shall lie to the Superintending Irrigation Officer within 15 days from the date of issue of the order and his decision in the matter shall be final. (4) In case the Divisional Irrigation Officer is of the opinion that distribution of Irrigation in a 'chak' is not being ensured equitably and economically and Barabandi is essential he may enforce Barabandi in the 'chak' concerned after giving adequate publicity through Panchayats of his intentions of doing so. Appeal if any against the order of the Divisional Officer shall he to the Superintending Irrigation Officer within 15 days from the date of the orders and his decision in the matter shall be final. Branch of such Barabandi will be an offence punishable under section 55 (9) of the Act. " Expressions 'irrigation Works. ' "water course and outlet" have been defined in section 3. Clauses (ii) (iv) and (v) of their definition are as under:- (ii) "irrigation Works' means a work or system of work natural or artificial not being a minor irrigation work as defined in section 2 of the Rajasthan Minor Irrigation Works Act, 1953 and includes.- (1) "water course" means any channel not constructed and maintained at the cost of State Government which is supplied with water from a canal, channel pipe of reservoir and includes any subsidiary work belonging to such channel. (v) "outlet" means an opening constructed in a Canal through through which water passes into a water course or directly on the land. " Under Rule 11 what is provided is that it is only the Divisional Irrigation Officer who can authorise drawing of water from outlets and sub-rule (1) of Rule 11 prohibits drawing of water from outlets other than these authorised by the Divisional Irrigation Officer but if any change is to be effected in the established system of canal distribution then it could be done under the orders of the Divisional Irrigation Officer and if any such order is passed by the Divisional Irrigation Officer then appeal lies to the Superintending Irrigation Officer. The present is a case not of change in the established system of canal distribution. What is being sought by the petitioner is that his two squares may be allowed to be irrigated from the water course situated in Chak 2ll. The existing system of canal distribution will not be changed but from the existing water course, according to the petitioner he may be allowed to draw water. A perusal of Section 20 would show that if any such prayer like the present one made then a notice is required to be given to the persons responsible for the construction and maintenance whatever course and who are to be heard by the Divisional Irrigation Officer and after making enquiry he is required to give his decision subject to confirmation and modification by the Superintending Irrigation Officer. Thus it would appear that the petitioner wants to obtain water from existing water course situated in chak 2ll for his land situated in Chak 19 GG. For such a supply of water from an irrigation work notices are required to be given to the persons responsible for construction and maintenance of the water course. The Executive Engineer has considered the matter u/sec. 20 and that is why the matter was sent by him for confirmation to the Superintending Irrigation officer. The expression 'irrigation work' is an expression of wide connotation it includes water course as well. The expression 'irrigation work' appears in sub-section (2) of sec. 20 further 'water course' has been defined to mean any channel not constructed and maintained at the cost of State Govt. which is supplied with water from a canal, channel, pipe or reservoir and includes any subsidiary-work belonging to such channel. 'outlet' has been defined to mean opening constructed in a canal through which water passes into a water course or directly on to any land. It would appear that outlet would mean an opening constructed in a canal but the petitioner has prayed that his land may be allowed to be irrigated from the existing water course situated in Chak 2ll. Thus having regard to the prayer made by the petitioner in my opinion, the matter is covered u/sec. 20 and it does not fall under rule 11 as submitted by the learned counsel for the petitioner and I agree with the view taken by this court in Jaimal Ram Vs. State of Rajasthan (Supra ).