MAHIMA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ petition under Art. 226 of the Constitution by one Mahima Singh and 9 others questioning the legality of an order Ex. 3, made by the Minister of the State for Irrigation Shri Manphool Singh Choudhary ordering the stopping of exchange of the tube well water with the water of the canal distributary and ordering the dismantling of the outlet therefor. The petitioners have prayed for an appropriate writ, direction or order commanding the respondents to restore the exchange of water supply to the petitioners and not to otherwise interfere with the right created in favour of the petitioners. The relevant facts emerging from the writ petition may be stated as follows:

(2.) THE petitioners are the owners of agricultural land in Chak 5 'o', in Tehsil Karanpur, District Ganganagar. THEir lands were served by a distributary 'o' Minor which takes water from 'f' Distributary of the Gang Canal. THE petitioners' lands were getting water from this Distributary like other land-holders on usual terms. According to the petitioners, the Indus Water Treaty between India and Pakistan resulted in diminution of the water supply available for the Gang Canal which brings water from Beas-Sutlej through various Headworks to Ganganager. For meeting the situation created by this reduction the Government of Rajasthan devised a scheme of augmenting the available supply. Petitioners proceed to say that on 18-12-63 there was a conference in the chamber of the then Agriculture and Irrigation Minister of Rajasthan and as a result of its deliberations it was thought that if a series of tube welis were set up along both sides of the Canal the water supply could be augmented. For implementing the suggestion the Government constituted a Committee of Officers namely, Director of Agriculture, Additional Chief Engineer, Irrigation, Additional Chief Engineer, Rajasthan State Electricity Board, the Superintending Engineer, Irrigation Ganganagar and the Deputy Director of Agriculture, Ganganagar. This committee of officers ultimately submitted a report and it was mentioned therein that some private tube wells had already been successfully sunk and for encouraging the augmentation of the available supply persons should be encouraged to sink more tube wells on their lands at their cost. However, it was felt that in order to remove uncertainty about availability of sweet water measures should be devised and in the event of brackish water being struck instead of sweet water, the brackish water should be accepted by the Government and in lieu thereof sweet water should be made available from the canal for cultivation. THE details of the scheme proposed were, however left to be worked out in due course, Petitioners maintain that in view of the suggestion made by the Committee it was decided that in Chak 5 'o' also five tube welis be sunk near 'o' Minor. Petitioners claim that it was on this clear understanding that, if brackish water be found in the wells to be sunk by them on their lands the same would be exchanged with canal water of equivalent quantity that the petitioners, had sunk a tube well on their land and then entered into an agreement with the Government. I will have occasion to deal with the terms of the agreement in the course of this judgment. THE petitioners go on to state that on 2-6-64 the Superintending Engineer, Irrigation, Ganganagar had written to the Executive Engineer, Gang Canal that brackish water from private tube wells be exchanged with the canal water. THE high-lights of that letter were that the policy of exchanging brackish water from tube wells had been accepted by the Government and accordingly arrangements be made for exchange of water from the tube wells on measured basis and for this a separate outslet be provided for the sweet water of the canal to be delivered to the fields to be irrigated from the tube wells and the link water courses from the canal to the tank and tank to the canal be also constructed. Further the outlets shall be having logging arrangements and Log Books shall be maintained for recording the timings when such outlets shall be opened and closed. THE Executive Engineer was further desired to check up the discharge of each tube well and also to propose the proposals forms for the exchange outlets. THE discharge was to be personally checked up by the Executive Engineer. It was contemplated that the discharge from the tube wells would be restricted to 10% of the total authorised discharge of each channel so that the salinity of the canal water remained within permissible limits. According to the petitioners, provision was also made for giving financial aid to those farmers who would be sinking tube wells in their fields within the command area of the Gang Canal, but it is not necessary for the purposes of this case to advert to the financial arrangements. THE petitioners submit that in view of the scheme and as per the advice of the Rajasthan Underground Water Board they sunk a tubewell on their land and invested a substantial amount of Rs. 50,000/ -. THEy also executed an agreement with the Rajasthan State Electricity Board undertaking to consume electric energy of the value of Rs. 10,000/-annually in working the tube wells and accordingly the electric installations were set up for the working of the tube wells. In pursuance of this arrangement the Divisional Irrigation Authorities established a water course on the petitioners' land as an exchange outlet for the exchange of tube wells water with the sweet water of the canal after chemical tests. THE case of the petitioners is that after this water course was constructed the tube wells of the petitioner started functioning from about December, 1964. It is thereafter, that, according to the petitioners, their trouble started. THE party of the petitioners had fallen out with one Shri Gurdeep Singh who had stood as a candidate for Rajasthan Legislative Assembly and one of the petitioners Bagh Singh also stood as a candidate. Shri Gurdeep Singh won the election but, according to the petitioners, he wanted to wreak vengeance on the petitioners for the opposition offered by them at the time of elections. Shri Gurdeep Singh animated by this ill will was alleged to have written a letter to the Government complaining that the water of the tube well that was being mixed with canal water and which was being utilised for agricultural purposes by the cultivators down the channel 'o' Minor and by the Municipality of Karanpur for drinking purposes of the inhabitants was proving a health-hazard on account of excessive salinity above the usual standards. It was on this letter that eventually Shri Manphool Singh Choudhary, Minister of State, came to order the Executive Engineer, Gang Canal, Irrigation as per Ex. 3. Before this, according to the petitioners, there were some complaints which were engineered against them and on 30. 6. 65, after getting the water chemically analysed, the Chief Engineer, Irrigation had reported to the Government that the complaint was an inspired one and there was absolutely no fear of any contamination of supply of water. On 27. 2. 67, the Executive Engineer, Gang Canal Division, Ganganagar wrote to say that there were complaints from Municipal Board, Karanpur as well as from other cultivators regarding exchange of brackish water allowed in Chak 5 'o' and accordingly the petitioners were served with the notice to suspend forthwith the exchange of brackish water without prejudice and they were directed to have chemical analysis of water afresh and submit the result thereof to the Executive Engineer. THE petitioners' supply of water was then stopped. THE petitioners went on representing and then the supply was resumed eventually upto 15-4-67. THEse orders, according to the petitioners, were passed by the Government on an application of Shri Gurdeep Singh and ultimately on 28-12-67 Shri Manphoolsingh, Minister of State passed the impugned order. A copy of the telegraphic order in question was endorsed by the Technical Asstt. to the Superintending Engineer, Bikaner Irrigation Circle, Ganganagar, to the Sub-Divisional Officer, Sri Karanpur with copies to Executive Engineer, Gang Canal Division and it was mentioned in the endorsement of the last mentioned that he was to comply with the Minister's order and report compliance. In the result, the supply of water to the petitioners came to be stopped. THE petitioners then approached the Collector, Ganganagar to use his good offices for getting the supply restored as otherwise their standing crops would be destroyed. On the petitioners' representation the then Collector, Ganganagar addressed a letter to the Executive Engineer on 26. 12. 67 asking him for a report and pending that he was desired to effect the exchange of water to the tubewell, unless there were extraordinary strong technical reasons for discontinuing the exchange of water. In reply to the Collector's letter the Executive Engineer on 28. 12. 67, wrote to say that the water course had been stopped in pursuance of the orders of the State Minister for Irrigation received by the Executive Engineer through the Superintending Engineer. Petitioner then approached the Superintending Engineer protesting against the closure of the outlet of the tube well and that also made a representation to the Minister for Irrigation, but that did not bring any result. However, on 30. 1. 68 on petitioners' persistent efforts the Superintending Engineer, Bikaner Irrigation Circle addressed a letter to the Executive Engineer, Gang Canal Division, Ganganagar that he may provisionally allow the petitioners quantity of sweet water equivalent to 50% of the tube well discharge without discharging the saline water into the canal. It was further desired by the Superintending Engineer that the tube well water be tested by the Public Health Engineering Research Institute and the result of the chemical analysis be intimated to the Chief Engineer for prescribing the normal for exchange of tube well water with canal water. Thus the reduced supply continued till the end of April 1968. Petitioners further sumbit that one Shri K. L. Saxena, Scientist Incharge, who had done chemical analysis of the sample of water of the tube well, had reported that the water was fit for cultivation as well as human consumption. THE petitioners grievance is that inspite of this report the water supply was not being restored and they were suffering huge losses on account of their commitments with the Rajasthan State Electricity Board as also on account of the investments made by them on the land. THE petitioners add that four other persons had sunk tube wells on their respective lands, but their supply was not being stopped and the petitioners had been discriminated against on account of their animosity with Shri Gurdeep Singh, M. L. A. and Shri Man-phool Singh.

(3.) NOW, it is common ground that the additional supply of water was agreed to be made because the petitioners were to supply brackish water from their tubewell to the State Government to be utilised in augmenting the supply of water in the distributory. The respondents are the best judge as to whether in view of increase in the salinity of water to be utilised either for agricultural or for human consumption beyond the limits, they should accept the supply of brackish water at all or accept it in any reduced quantity, but that alone will not relieve them from performing their part of the obligation namely, for supplying water at cost. Here also on account of the obvious difficulties I refrain from saying as to how long this agreement was to last, but as I have already observed the respondents have not at all examined the equities in favour of the petitioners. NOW, if the respondents do not accept the brackish water from the petitioners' well as they would be free to do, then naturally on equitable considerations the petitioners cannot insist on equivalent quantity of water as by not supplying brackish water to the respondents the petitioners are bound to save the expenditure for pumping out brackish water from their well. Here it is also difficult to decide in exercise of the extra ordinary jurisdiction of this Court as to what should be the actual quantity of additional supply, if the respondents do not accept any brackish water from the petitioners, but it does not appear that the Superintending Engineer accepting the position that brackish water be not taken from the petitioners ordered that 50 per cent of the additional supply be restored to the petitioners. This order came to be passed on 31-1-68 vide para 33 of the writ petition. The petitioners have not disputed that restoration of 50 per-cent of the supply maturing crops that they had sown before the water supply was once stopped. It is, therefore, just and proper that pending consideration of the equities of the petitioners on account of the Government's sponsoring the sinking of tubewells on certain terms the 50 per cent of the additional supply made to the petitioners as was done by the Superintending Engineer by his order dated 31-1-68 should be restored to the petitioners.