Barkat Ali vs State of Rajasthan and Others

Sangeet Lodha, J.

This writ petition is directed against order dated 30.10.13 passed by the Superintending Engineer, Sahwa Lift Circle, Indira Gandhi Canal Project (IGNP), Bikaner, whereby the appeal preferred by the petitioner herein, against the order dated 31.5.13 passed by the Executive Engineer, Kanwarsen Lift Division, IGNP, Bikaner, curtailing the water turn of the agriculture land comprising Murabba No. 9/50, 9/51 ad measuring 46 bighas 4 biswas in Chak 15 JMD and 14 JMD village Bherukhera, Tehsil and District Bikaner, to the extent of share of the respondent No. 3 and 4 in the land in question, on the request being made on their behalf, stands dismissed.

The relevant facts are that the land description whereof is given hereinabove, is ancestral joint khatedari land of the petitioner and the respondent No. 3 and 4 herein. It is submitted that the petitioner alone is cultivating the said land, the water supply turn whereof was fixed by the authorities of the IGNP.

The respondent No. 3 and 4 herein, made an application dated 8.5.13 before the Executive Engineer, Kanwarsen Lift Division, Loonkaransar, for cancelling the turn of water supply in respect of their 2/3rd share in the ancestral land in question. It was stated that the water supply slip has been wrongly issued in the name of Barkat Ali, the petitioner herein, who is using the entire quantity of water supply in his share of the field. Accordingly, it was prayed that the water turn may be fixed in the name of the respondent No. 3 and 4 to the extent of their share in the land and in the alternative, it was prayed that the turn of water supply to the extent of their share in the agriculture land may be cancelled.

The application preferred by the respondent No. 3 as aforesaid was allowed by the Executive Engineer, Kanwarsen Lift Division, Loonkaransar vide order dated 31.5.13 and accordingly, the turn of the water supply to the extent of 2/3rd share of the respondent No. 2 and 3 herein, in the land in question was ordered to be curtailed. Aggrieved thereby, the petitioner preferred an appeal before the Superintending Engineer, Sahwa Lift Circle, IGNP, Bikaner, which stands dismissed by the order impugned. Hence, this petition.

Learned counsel appearing for the petitioner contended that the appellate authority has not examined the matter on merits and the appeal has been dismissed by observing that the order passed by the Executive Engineer, keeping in view the technical aspects and to check the wastage of the water is just and proper. Learned counsel submitted that the appellate authority was under an obligation to examine the matter on merits and record the reasons for conclusion arrived at. Learned counsel submitted that before passing the order canceling the water turn to the extent of 2/3rd share of the agriculture land, no opportunity of hearing was afforded to the petitioner and therefore, the order passed by the Executive Engineer was liable to be set aside on this count alone. Learned counsel submitted that the respondent No. 3 and 4 are not in possession of the land and are not cultivating their share of the land as claimed and therefore, there was no occasion for the Executive Engineer to curtail the turn of the water supply to the extent of their share in the land in question. Learned counsel submitted that the ancestral land in question has not been partitioned as yet and therefore, the order fixing the water turn for the entire land could not have been disturbed by the Executive Engineer on the request being made on behalf of the respondent No. 3 and 4. Learned counsel submitted that the order impugned passed by the respondent No. 2 is violative of Rule 10 of Rajasthan Irrigation and Drainage Rules, 1955 (for short "the Rules"). Learned counsel submitted that the action of the respondents in abruptly stopping supply of water without affording any opportunity of hearing to the petitioner, who is in possession of the land and cultivating the same, is ex facie violative of principles of natural justice. In support of the contention, learned counsel has relied upon decisions of this court in the matters of "Amar Singh and Ors. vs. State of Rajasthan and Ors.", RLW 1995 (1) (Raj.) 34 and "Sukhveer Singh vs. State of Rajasthan and Ors.", 1999 (1) WLC (Raj.), 175.

On the other hand, the counsel appearing for the respondent No. 3 and 4 submitted that the petitioner and the respondents are joint khatedar of the ancestral land measuring 46.14 bighas and all three brothers are having 1/3rd share in the land and therefore, the competent authority has rightly stopped the supply of the water to the extent of the share of respondent No. 3 and 4 in the land in question so as to check the misuse of the water. Learned counsel submitted that the water slip was issued in the name of the petitioner illegally and thus, he was using the water falling in the share of the respondents as well and as a result thereof, their crops have been adversely effected. Learned counsel submitted that the petitioner has no right to use the 2/3rd share of water of answering respondent in his field for cultivation. It is submitted that the respondent-Gani Khan had already filed a civil suit for partition before the Sub Divisional Officer, Bikaner on 12.2.09 wherein a preliminary decree has been passed in favour of Gani Khan and thereafter, the Patwari, Bherukhira has already submitted a proposal alongwith the map on 9.11.10 to the Sub Divisional Officer, Bikaner, for division of the holding. Learned counsel submitted that the water turn has to be fixed on the basis of the record of rights and therefore, the impugned order passed by the Superintending Engineer, affirming the order dated 31.5.13 passed by the Executive Engineer, Kanwarsen Lift Division, IGNP, Bikaner, does not suffer from any infirmity or illegality so as to warrant interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India.

I have considered the rival submissions and perused the material on record.

As per the provisions of Rule 11(4) of the Rules, in case the Divisional Irrigation Officer is of the opinion that the distribution of irrigation in a ''chak'' is not being ensured equitably and economically and ''Barabandi'' is essential, he may enforce ''Barabandi'' in the chak concerned after giving adequate publicity through panchayats of his intentions of doing so. It is a common ground between the parties that the ''Barabandi'' for coordinated distribution of the water is governed by the Guidelines issued by the State Government in this regard. It is not disputed before this court that ordinarily, the water turn in terms of the ''Barabandi'' effected, is fixed on the basis of the record of rights. It is also not in dispute that the land in question in respect whereof a preliminary decree for partition is already passed by the court of competent jurisdiction, is presently recorded in the record of rights in the names of all the three brothers i.e. the petitioner and the respondent No. 3 and 4 herein, however, the petitioner claims to be in exclusive possession of the land. A perusal of the order impugned reveals that the water turn to the extent of 2/3rd share of the respondents herein in the land in question was curtailed by the Executive Engineer, so as to avoid the dispute between the parties and to check the misuse of the water. A perusal of the order of the Appellate Authority reveals that the contention raised by the parties questioning the correctness of the order passed by the Executive Engineer, has not been examined by the Appellate Authority in its entirety and objectivity. The appeal has been dismissed by the Appellate Authority by merely recording its ipse dixit that keeping in view the technical aspects and to check the misuse of the water, order passed by the Executive Engineer, IGNP, Kanwarsen, Division Loonkaransar, is just and proper. The contentions of the parties regarding their claim for fixing the water turn on the basis of the record of rights/possession have not been considered by the Appellate Authority, in conformity with the provisions of the Rules and the Guidelines issued by the State Government in this regard. In this view of the matter, in the considered opinion of this court, the matter deserves to be remanded to the Appellate Authority i.e. the Superintending Engineer, Sahwa Lift Circle, IGNP, Bikaner for decision of the appeal afresh, after due consideration of the rival submissions.

Accordingly, the writ petition is partly allowed. The order impugned 30.10.13 passed by the Superintending Engineer, Sahwa Lift Canal, is set aside. The matter shall stand remanded to the Superintending Engineer for decision of the appeal afresh, after due consideration of the rival submissions of the parties, in accordance with law. No order as to costs.