Kalawati @APPELLANT@Hash State of Rajasthan & Ors.

By way of this writ petition, the petitioners herein, who own agricultural lands falling in Chak No.3BHM ‘A’, Muraba No.90/373, Killa No.18 to

25, have approached this Court for assailing the order (Annexure-P/4) dated 20.05.2016 passed by the Executive Engineer, Water Resources, Division

First, Suratgarh and the order (Annexure-P/6) dated 15.07.2016 passed by the Superintending Engineer, Water Resources, Circle Sri Vijay Nagar in

connection with the water supply being made to the petitioners.

It is undisputed fact that water supply had been lawfully sanctioned to the petitioners’ field long back. The petitioners, created an internal

additional opening (Naaka) for optimizing distribution of water in their own field on which, the respondent No.4 Om Prakash submitted an objection

before the Executive Engineer, Water Resources, Suratgarh who, turned the same down by order dated (Annexure-P/2) dated 19.10.2011 with the

following findings:

“pd 3 ch,p,e&, ds eqjCck ua- 90@373 ds fy, [kkyk eqjCck ua- 90@374 esa ls vk jgk gSA rFkk eqjCck ua- 90@373 ds fdyk ua- 25 o eqjCck ua-

91@373 ds fdyk ua- 21 esa uDds cus gq, gSA eqjCck ua- 90@373 ds fdyk ua- 25 esa lM+d ds uhps iqfyl;ka cuh gqdbZ gSA ftlesa ls eqjCck ua-

90@373 o 91@373 esa o vU; eqjCcksa esa flapkbZ gsrq ikuh tkrk gSA lM+d ls iwoZ tks [kyk 90@373 dks tkrk gS mlesa eqjCck ua- 91@374 ds

fy, ,d iDdk ukdk lh,Mh foHkkx }kjk fufeZr fd;k gqvk gS rFkk vizkFkhZ }kjk mlh uDdk ds cjkcj esa eqjCck ua- 90@374 esa ,d u;k ukdk fufeZr dj fy;k

ftl ij izkFkhZ dks ,rjkt gSA tcfd ekSdk fujh{k.k eqrkfcd ml fufeZr uDdk ls izkFkhZ dks dksbZ uqdlku ugha gSA D;ksafd tc pd esa dPps [kkys

fufeZr Fks rks vizkFkhZ mlh uDdk ls ikuh ys tkdj lM+d ds uhps cuh iqfy;k ls vius [ksr esa cuh vkM+ ls flapkbZ djrk FkkA flapkbZ lqfo/kk ds n`fâ€Vxr

vizkFkhZÂ Â }kjk mlh uDds dks iDdk u;k ukdk esa fufeZr dj vius jdcs esa cuh vkM+ ls flapkbZ dj jgk gSA ftlls izkFkhZ dks dksbZ uqdlku ugha gSA

vr% i=koyh n¶rjh nkf[ky dh tkrh gS rFkk vizkFkhZ dks vknsf’kr fd;k tkrk gS fd og vfrfjDr uDdk Lohd`fr gsrq fu;ekuqlkj dk;Zokgh djsaA â€​

Manifestly, crux of the above finding was that the petitioners had constructed the additional Naaka in their own filed for an optimizing use of water

being received by them and volume of the water being drawn by the petitioners was neither effected nor increased by setting up of the additional

Naaka. Be that as it may. Being aggrieved with the order passed by the Executive Engineer, the respondent No.4 filed an appeal before the

Superintending Engineer which came to be rejected by order (Annexure-P/3) dated 14.05.2012. However, the respondent No.4 again filed the very

same objection before the Executive Engineer in the year 2016 who directed closure of the additional Naaka built by the petitioners in their fields. It is

relevant to mention here that while deciding the objection, the Executive Engineer did not even barely advert to the earlier round of proceeding

wherein, similar objection raised by the respondent was turned down by the divisional authority as well as the appellate authority.

Nevertheless, aggrieved with the order passed by the divisional authority i.e. the Executive Engineer, the petitioners herein submitted an appeal to the

Superintending Engineer which came to be rejected by the order (Annexure-P/ 6) dated 15.07.2016. It may be stated here that the appellate authority

too, did not consider the earlier orders passed by the competent authorities in relation to the very same dispute and dismissed the appeal by a totally

non-speaking order, the concluding para whereof is reproduced herein below for the sake of ready reference:

“ bl izdkj i=koyh dk v/;;u ,oa vf/k’kkâ€kh vfHk;Urk ty lalk/kku lw0 czk0 [k.M izFke lwjrx}kjk izLrqr vihy@izkFkZuk i= ds v/;;u mijkUr vf/k’kkâ€kh vfHk;Urk ty lalk/ku lw0 czkap [k.M izFke lwjrx05-2016 dks cgky j[krs gq;s vihy e; LFkxu izkFkZuk i= vihykUV ds Lo;a ds gtkZ@[kpkZ ogu ij vikLFk@fujLr fd;k tkrk gSA â€​

Shri Sidhu learned counsel representing the petitioners vehemently urged that the orders under challenge are perfunctory, illegal, arbitrary and have

been passed without any application to the glaring admitted facts available on record. He urges that the divisional authority as well as the appellate

authority had, in the first round of litigation, passed the orders 19.10.2011 and 14.05.2012 respetively, disallowing the very same objection raised by the

respondent No.4. In this background, the second complaint submitted by the respondent No.4 on the very same set of allegations should not have been

entertained. He contends that despite the factum of the earlier orders being brought to the notice to the competent authorities, they made no effort to

examine the same and in a sheer mechanical fashion, directed removal of the additional Naaka which the petitioners had constructed in order to

ensure better distribution of the available quantity of water in their own field. He thus urges that the impugned orders are perverse and bad in the eye

of law and should be set aside.

Shri N.S. Rajpurohit, learned counsel representing the respondent Water Resources Department has filed a reply controverting the contentions raised

by the petitioners, but no explanation has been offered in the reply regarding the ignorance shown by concerned authorities to the earlier orders passed

in relation to the very same dispute interse between the parties while passing the impugned orders. It is also not denied in the reply of the respondent

Water Resources Department that the volume of the water being supplied to the petitioners would not be altered by setting up of the additional Naaka

in their own field.

The private respondent No.4 who filed the complaint against the petitioners has not filed any reply to the writ petition. However, Shri A.R. Beniwal,

learned counsel representing such respondent vehemently opposed the submissions advanced by Shri Sidhu and craved dismissal of the writ petition on

the ground that the petitioners acted in a totally illegal manner while constructing the additional Naaka in their field without sanction of the competent

authority. On these grounds, he implored the Court to dismiss the writ petition.

I have given my thoughtful consideration to the arguments advanced at bar and have gone through the material available on record.

This Court is of the firm opinion that the impugned orders whereby, the additional Naaka erected by the petitioners in their own fields was directed to

be closed and their appeal was rejected are per-functory and perverse to say the least. The competent authorities i.e. the divisional authority or the

appellate authority, who exercise quasi-judicial functions, cannot act on their whims and caprices. Both authorities totally ignored the crucial fact that

an exactly identical complaint made earlier by the private respondent met the fate of dismissal in the year 2011 and the appeal preferred there against

was also rejected on merits considering the aspect that the total water supply being drawn by the petitioners was in no manner effected or altered by

setting up of the additional Naaka which was simply a means to ensure better distribution of water sanctioned for the petitioners’ agricultural field.

The earlier orders 19.10.2011 and 14.05.2012 go to the root of the matter and since the same were not considered by the divisional authority as well

as the appellate authority while passing the orders dated 20.05.2016 and 15.07.2016. These orders are vitiated on account of non-

application of mind to material facts. Even in the reply filed by the Water Resources Department, it is not disputed that the water supply of the

petitioners would be altered in any manner by setting up of the additional Naaka in their own field.Â

In this background, this Court is of the opinion that the impugned orders do not stand to scrutiny on the aspect of reasonableness, legality and due

application of mind to material facts and hence, the same cannot be sustained.

Hence, the instant writ petition is allowed. The order dated (Annexure-P/4) dated 20.05.2016 passed by the Executive Engineer, Water Resources,

Division First, Suratgarh and the order (Annexure-P/6) dated 15.07.2016 passed by the Superintending Engineer, Water Resources, Circle Sri Vijay

Nagar are hereby quashed and set aside. Stay application is disposed of.

No order as to cost.