GANGA RAM @ GANGAJAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BEING aggrieved by the order dated 15.09.2011 passed by the Executive Engineer, Water Resources Division-I, Hanumangarh, this petition for writ is preferred. By the order aforesaid, the Executive Engineer while acting upon the Government of Rajasthan order dated 08.08.2011 restored the order that was cancelled under an order dated 28.02.2011. The factual matrix necessary to be noticed is that the Executive Engineer, Water Resources Division-I, Hanumangarh vide order dated 23.11.2010 decided to transfer certain part of land from Chak 46 LLW-B to Chak 10 TKW. Being aggrieved by (2) the same, the petitioner preferred an appeal before the Superintending Engineer, Water Resources Circle, Hanumangarh and that appeal came to be disposed of under the judgment dated 10.12.2010. Learned appellate authority held that the transfer of land from Chak 46 LLW-B was transferred to Chak 10 TKW without adhering the procedure prescribed to do so and also without taking into consideration the instructions given by the State Government in this regard. A direction was accordingly given to the Executive Engineer to reconsider the entire issue and pass appropriate order. The Executive Engineer while acting upon the order passed by the appellate authority cancelled its earlier order dated 23.11.2010. It appears that subsequent thereto, the respondents No.4 and 5, whose land was transferred to Chak 10 TKW approached the State Government and the State Government instructed the Chief Engineer, Water Resources (North), Hanumangarh to make necessary amendments pertaining to transfer of land from Chak 46 LLW-B to Chak 10 TKW. Acting upon the directions so given, the Executive Engineer, Water Resources Division-I, Hanumangarh by the office order dated 15.09.2011 withdrew the order dated 28.02.2011 and restored the order dated 23.11.2010. The argument of learned counsel for the petitioner is that as per the provisions of the Rajasthan Irrigation and Drainage Act, 1954 (for short, hereinafter referred to as 'the Act (3) of 1954'), the appellate authority, i.e. the Divisional Irrigation Officer (Superintending Engineer) concerned, has set aside the order dated 23.11.2010, therefore, the Executive Engineer was under obligation to examine the merits of the case remanded to him under the order dated 10.12.2010. It is pointed out that as per Section 21 of the Act of 1954, any person desiring construction of new water course may apply in writing to the Divisional Irrigation Officer stating certain eventualities and to act upon such application, a definite procedure given under Section 22, 23 and 24 of the Act of 1954 is required to be adhered. In the instant case, no such performance was made. It is asserted by learned counsel for the petitioner that as per the provisions of the Act of 1954, the order passed by the Divisional Irrigation Officer is a final order and no further appeal for that is provided in the statute. Per contra, the stand of the respondents is that as a matter of fact, the entire issue regarding transfer of land concerned from Chak 46 LLW-B to Chak 10 TKW was examined by the Executive Engineer, Water Resources Division-I, Hanumangarh under an order dated 07.06.2006 and the order dated 23.11.2010 is nothing but a consequent of that, as such, without giving challenge to the original order dated 07.06.2006, no challenge could have been given by the petitioner to the order dated 23.11.2010. It is further pointed out that the (4) interference of the State Government in the matter was must in view of Rule 11 of the Rajasthan Irrigation and Drainage Rules, 1955 (for short, hereinafter referred to as 'the Rules of 1955'). The rule aforesaid prescribes that no order relating to change in shape, size and establishment of any water course shall be made without having specific orders of the State Government. Looking to this provision, the Government under the order dated 08.08.2011 granted necessary permission to make adequate changes in water outlets pertaining to the land transferred from Chak 46 LLW-B to Chak 10 TKW. Heard learned counsel for the parties and also examined the record. It is not at all in dispute that the petitioner by way of filing an appeal before the Superintending Engineer, Water Resources Circle, Hanumangarh gave challenge to the order dated 23.11.2010 as well as the order dated 07.06.2006. The Superintending Engineer after considering both the orders arrived at a definite conclusion that before making an order for transfer of land from Chak 46 LLW-B to Chak 10 TKW, the procedure prescribed under the relevant law was not adhered. The appellate authority, thus, remanded the matter to the Executive Engineer for fresh disposal in accordance with law. The necessary implication of the order is that neither the order dated 23.11.2010 nor the order dated 07.06.2006 are in (5) existence. The Executive Engineer is required to examine the entire case of the respondents No.5 and 6 for transfer of land and water outlets afresh by adhering the procedure prescribed under the Act of 1954 and the Rules framed thereunder. In view of this legal position, the order dated 15.09.2011 passed by the Executive Engineer, Water Resources Division-I, Hanumangarh is apparently bad. The permission granted by the State Government is also required to be read only to the extent of grant of sanction as required under Rule 11 of the Rules of 1955. In view of the discussion made above, this petition for writ deserves acceptance. Accordingly, the same is allowed. The order dated 15.09.2011 passed by the Executive Engineer, Water Resources Division-I, Hanumangarh is quashed. The Executive Engineer, Water Resources Division-I, Hanumangarh is directed to act upon the order dated 10.12.2010 passed by the Superintending Engineer (Divisional Irrigation Officer, Water Resources Circle, Hanumangarh expeditiously as far as possible within a period of three months from today.