SHIVLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THERE is an existing water course from stone No. 92/228 to 90/228 from which the petitioners and respondents 5 to 11 were getting their water for a number of years. Apparently respondents 5 and 6 were not satisfied with this arrangement as according to them the water course was through a sandy field and they were not getting full use of water. They therefore applied to the executive Engineer asking for the sanction of a water course from stone No. 92/224 to 90/224. The Executive Engineer examined this matter and noticed that respondent No. 5 Sahi Ram had stated that if Nakewar wara bandi was sanctioned on the already sanctioned stone 92/228 he may not ask for the proposed water course. The Executive Engineer on this by his order D/23/ 1/74 therefore proposed that Nakewar wara bandi may be tried for one crop and thereafter he filed the case by his order D/- 27-5-74. Apparently the respondents 5 and 6 did not find satisfaction from the Nakewar wara Bandi and filed appeal before the Superintending Engineer who by his order dated 14-1-75 remitted the case back to the Executive Engineer as in his view the earlier order of 27-5-74 of the Executive Engineer was not final. The matter was thereafter examined by the Executive Engineer who took the view that Nakawar wara bandi was running smoothly add considering all the circumstances he did not think that the water course desired by' respondent 5 from stone 92/224 to 90/224 was justified and rejected the application of respondent 5. Aggrieved against that respondent 5 filed an appeal before the Superintending Engineer respondent No. 3 who by his order dated 6-5-75 was of the view that some further investigation for redressing difficulties of the parties was necessary as according to him the sanction of the requested water course from 92/224 to 90/224 alone may not redress the general difficulty and he asked the Executive engineer respondent No. 4 to investigate the various proposals and then resubmit the case back to him. On the case being resubmitted to the superintending Engineer, it was noticed by him that the proposals suggested by him were not agreed fo by the cultivators who were having different views about it and there being no uniformity, it was difficult to get the proposals through without acquiring the land which it was not considered practicable. It was also noticed by him that on inspection he had found that Nakewar warabandi was not possible to be implemented. After considering the circumstances the Superintending Engineer by the impugned order dated 14-81975 allowed the appeal of respondents 5 and 6 and accorded sanction of water course from Stone No. 92/224 to 90/224. The petitioner is aggrieved and has come to this Court against the said order.

(2.) IT is apparent that the decision of the Superintending Engineer as to whether the sanctioning a new water couse will be for the benefit of respondents 5 and 6 is a matter which is within his jurisdicton under the Rajasthan Irrigation and drainage Act. (hereinafter to be called the 'act' ). This court does not possess the specialist's knowledge of the Irrigation Engineers so as to be able to say as to and in what particular manner or through which water course should the water be supplied to lands of various cultivators. Mr. Surolia counsel for the petitioner made a valient effort to persuade me to hold that it was in the larger interest of the petitioner as well as the respondents that the water should be supplied through the existing water course from stone No. 92/228 to 90/228 and the decision to supply through watercourse from stone No. 92/224 to 90/224 was not correct. Evidently this is a matter which the authorities who, are dealing with the disposal of water for irrigation purposes alone are competent to decide about it. Mr. Surolia then sought to raise an objection about jurisdiction and to the competency of the Superintending Engineer to hear and dispose of the appeal. I may note at once that the objection, that the superintending Engineer was not competent to hear the appeal filed by respondents 5 and 6 was not raised before the Superintending Engineer at any of the time when the matter was heard by him even though the petitioner was present. There is no mention of this objection having been raised before him and it is well settled that if an objection as to the jurisdiction of a Tribunal is not raised before the said authority, a party will not be allowed to urge this objection of jurisdiction in this Court unless there is patent want of jurisdiction, which is not the case here. The petitioner thus cannot be allowed to raise this objection and the same will have to be rejected. But as I allowed the counsel for the petitioner to argue on this I would like to deal with it.

(3.) SECTION 3 (ii) (c) defines irrigation work to mean and include a water course. Section 16 provides for an application for a person desiring to use the water course of any irrigation work to be made to the Divisional or Sub Divisional irrigation Officer requiring him to construct or improve a water course at the cost of the applicant. Section 19 talks of Adjustment of claims of persons jointly using water course. Section 21 provides for the application for construction of new water course, to be made to the Divisional Irrigation Officer. Section 23 provides for an application for desiring that an existing water course should be transferred from the present owner to himself. Rule 55 of Irrigation Rules provides that an appeal shall lie to Superintending Irrigation Officer from an original order passed by the Divisional Irrigation Officer under the Act, or these rules. The contention of Mr. Surolia is that the claim of the respondents 5 and 6 should be treated to be under Section 53 which provides that where any difference arises between two and more persons in regard to the mutual rights or liabilities in respect of the use, construction or maintenance of water course, any such person may apply in writing to the Divisional Irrigation Officer stating the matter in dispute and further provides in Sub-section (2) that such order of the Divisional Irrigation Officer shall be final as to the use or distribution of water and will thereafter remain in force until set aside by the decree of a civil court. The contention is that the claim of respon-dents 5 and 6 fell under section 53 as it related to the use or as the counsel for respondents 7 to 11 stated to the dis-use of the existing water course. In my opinion the argument is fallacious. Section 53 is only applicable where two or more persons raise a dispute about the use or construction or maintenance of a water course. In the present case respondents 5 and 6 are not raising any dispute about the use of construction or maintaining any existing water course but are in fact seeking the sanction of a new water course. Counsel for the petitioner would have it that by withdrawal of respondents 5 and 6 from the existing watercourse extra burden would have to be borne by the petitioner, and this attracts Section 53. I cannot agree. Section 53 only comes in when a party wishing to continue on the existing watercourse raises a dispute about his mutual rights and liabilities and cannot apply to a case like that of respondents 5 and 6 where they are seeking to withdraw from the existing water course and asking for the sanction of a new one. Counsel for respondents 7 to 11 urged that there was no such provision in the Act and that once persons have been placed on a water course they necessarily will have to stay on for all the time even if some of the persons are unhappy about the supply of water. I cannot accept this interpretation which would make the act not a piece of beneficial legislation meant to help the cultivators but rather as an instrument of serfdom and compulsion. This interpretation would defeat the object of the Act and must be rejected. On the contrary I find that there is a definite provision in Section 21 of the Act which provides for an application for construction of a new water course. This is the very provision under which respondents 5 and 6 applied and the Superintending engineer had the necessary jurisdiction and has after taking into account circumstances sanctioned the same, and no fault can be found with it.