DHARAM SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ON the oral request of the petitioner, the name of Vijay Singh Jhala from the array of the respondent No. 6 is deleted for the reason that the respondent No. 6, the then Irrigation Minister, has since died. The case will be decided without referring to the mala fide and only on the legal position in the facts of the case.

(2.) ADMITTEDLY , prior to passing of the order Annex. 2, dated 28.5.86, the village 5 FF, Tehsil Karanpur, district Sri Ganganagar were getting 'Bari' on Khatedar basis. The petitioner had applied for change of the system to allow him to have a Bari on Nakedar System. Vide Annex. 2, dated 28th May, 1986, the Executive Engineer while exercising the powers under Rule 11(3) of the Irrigation and Drainage Rules, 1955 (hereinafter called as Rules of 1955), had accepted his request. Being aggrieved by the order Annex. 2, the non -petitioners -private persons had also filed an appeal before the Superintending Engineer under the provisions of sub Rule (3) and Rule 11 of the Rules of 1955. The appeal of the non -petitioners -private persons were dismissed on 11.9.86. However, prior to the dismissal of the appeal, a notification had been issued by the State Government, whereby second appeal was also provided to the Chief Engineer. The non -petitioners in stead of approaching the Chief Engineer as per the Rules for filing the second appeal, had approached the Irrigation Minister for an appropriate order and the Hon'ble Irrigation Minister vide order Annex. 6 had given his opinion to the effect that the basic order of the Executive Engineer, Annex. 2 did not seem to be legal and had asked the Superintending Engineer to look into the matter. Vide impugned order Annex. 7, the Superintending Engineer on the direction of the Minister had passed the impugned order on 28.10.1991. The Superintending Engineer vide Annex. 7 had reversed the order Annex. 2.

(3.) LEARNED Counsel for the petitioner relies on S.B. Civil Writ Petition No. 2120/95 wherein it has been held that under the provisions of the Act and the Rules, the Superintending Engineer is not empowered to review its own order as no such power has been prescribed in the Act and the Rules. If the non petitioners were aggrieved by the Annex. 2 or Annex. 3, they could have easily approached the Chief Engineer by filing an appeal. It is stated by the counsel for the respondent, Shri Garg that as per standing order Annex. 15 issued by the Irrigation Department, 'Nakedar' could not have been issued, as under the standing orders two type of Wari cannot be allowed to remain in one village. Be it be so, the order of the Superintending Engineer Annex. 7 cannot be sustained in the eyes of law as he has already on the same issue and between the same parties decided the appeal filed by the private non -petitioners vide Annex. 3 and in the event of the asking of the Irrigation Minister, he at least could not have received its own /order by impliedly reversing his own order Annex. 3.