JAIMAL RAM Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) The facts of this writ petition are that in District Sri Ganganagar, village Saluwal (Chak 3F) the petitioner owns agricultural land measuring 23 1/2 bighas in square No. 35. It is irrigated by Chak 4F outlet right from the time canal irrigation was introduced. The respondents No. 4 and 5 owned 63 Bighas of land in the same village in square No. 44/146 and 48/146, which is irrigated from chak 2F outlet right from the aforesaid times. The respondents purchased 1 Bigha of land in Chak 4F and then applied for transferring 16 Bighas of their lands from chak 2F outlet to Chak 4F outlet before the Executive Irrigation Officer, Bikaner, Irrigation Circle, Sri Ganganagar, who issued a public notice to the cultivators of Chak 2F and 4F fixing 2 -6 -75 as the date of filing objections. The notice was served on 23 -5 -75. The petitioner raised objections and the Executive Irrigation Officer recorded the statements of the villagers and that of the petitioner. The Executive Irrigation Officer then, recommended the transfer applied for. The Superintending Irrigation Officer went to the village and inspected the site The petitioner also made or oral objection before him. The Superintending Irrigation Officer then, appears to have passed the impugned order dated 14 -8 -75 approving the scheme recommended by the Executive Irrigation Officer, in the interest of irrigation and consolidation of holdings. He also directed that cost for amendment of outlet and pucca naka shall be borne by the applicant. It appears that the outlet chak 4F was widened from "O 71" to 'O.72' since then. The order dated 14 -8 -75 is now challenged in this writ -petition on the ground that the petitioner will receive less water because of the inclusion of the land of the respondent under the same outlet. The total time for irrigation will also be proportionately reduced and the petitioner will suffer a loss of about 2 -1/2 minutes per week in total. There is no provision in the Rajasthan Irrigation and Drainage Act, 1954, providing for the transfer of land from one outlet to the other. If such an order is covered by S. 20 of the Act, then such an order could be made only by the Divisional Irrigation Officer against which an appeal lay to the Superintending Irrigation Officer under rule 55 of the Rajasthan Irrigation and Drainage Rules, 1957. The Rule 11 of the Rajasthan Irrigation and Drainages Rules, 1957, as amended in 1973 provides for the manner in which an established system of canal distribution can materially be changed. Under that rule too the Divisional Irrigation Officer alone can pass such orders against which an appeal is provided to the Superintending Irrigation Officer. The Divisional Irrigation Officer is also required to issue a notice of 15 days with brief reasons and give adequate publicity though Panchayat of the area calling for objections and then make the order. Besides the Superintending Irrigation Officer before making his order gave no notice to the petitioner or persons affected. It is alleged that the transfer of the land from one outlet to the other was made at the instance and manipulation of the father -in -law of the respondent No. 4, who is an employee of the Irrigation Department. The reasons that it was being done in the interest of irrigation and consolidation of holdings are incorrect in as much as no consolidation has taken place because 47 Bighas still remained to be served by Chak 2F outlet. The order of the Superintending Engineer was malafide in as much as without mentioning the objections of the petitioner, he dismissed them as frivolous.

(2.) It is also urged that the order of the Divisional Irrigation Officer is appealable to the Superintending Irrigation Officer. The impugned order of the Superintending Irrigation Officer having not been passed in appeal is without jurisdiction on that account as well. The order was arbitrary and in violation of the principles of natural justice.

(3.) The respondent Nos. 1 to 3 that is the State and the Irrigation Officers have, in reply, stated that the father -in -law of respondent Brijlal was no doubt serving in the Rajasthan Canal Project Organisation of the Irrigation Department but he had nothing to do with the present case. The respondents had submitted an application in January 75, to the Superintending Engineer and not to the Executive Engineer in furtherance of which the Executive Engineer Gang Canal did issue a notice according to Rule 4 sub -rule (2) of the aforesaid Rules on 1 -5 -75 to all the share -holders of chak 2F and 4F. It was served on 18 residents and a copy was also pasted in the village. Copies of the notices were also sent to the Pradhan Panchayat Samiti and to the Sarpanch of the village concerned as required by the amended rule 11(3). It was only after the objections has been considered that the order in question was passed. It was further stated that the width of the outlet in chak No. 4F was O.71. The total area served by chak 4F outlet was 194 acres. The discharge of the outlet was 2.13 cusecs. The respondent's 11 acres were more, added to chak No. 4F, thus, increasing the area to 805 acres. Consequently upon the increase in the area, the width of the outlet was increased from 0.71 to 0.72 thereby increasing the discharge of water from 2.13 cusecs to 2.16 cusecs. In view of the widening of the outlet, no loss would be suffered by the petitioner. The officers also stated that the matter was governed by Sec. 20 of the Act and an inquiry was made in accordance with rule 4. Rule 11 had no application because it applies only when there was a material change in the established system of canal distribution. Changing of outlet does not lead to any change in the established system. The procedure prescribed in Sec. 20 of the Act was followed. The order of the Executive Engineer was confirmed by the Superintending Engineer. It was also pleaded that the petitioner had an alternative remedy by way of reference to the Collector under Sec. 53 and by way of a suit under Sec. 52 of the Act, which was not availed of before filing the writ petition.