Kishan Lal and Others vs State of Raj.

N.K. Jain, J.—This special appeal u/s 18 of the Rajasthan High Court Ordinance, 1949 has been filed by the appellants against the order of learned Single Judge dt. 29.3.93 whereby while disposing of the writ petition granted 15 days time to the appellant to file an appeal before the Competent Authority and the authority was directed to decide the appeal if so filed objectively without being influence by its prior order.

This special appeal has been filed on 3.5.93. Notice to show cause was issued on 6.5.93 and in the meanwhile status quo as regards water course and outlet as it existed on that day was maintained. In pursuance of notice Mr. B.C. Mehta, appeared on behalf of the respondents.

Mr. Saluja, learned Counsel for the appellant submitted that the learned Single Judge had erred in directing the petitioners-appellants to first file an appeal before the competent authority and as the competent authority had already taken a contrary view in its administrative capacity, filing of an appeal will not be of any avail and as such the writ petition is maintainable. He has also submitted that the respondents in violation of principles of natural justice and in violation of Rule 11 of the Rajasthan Irrigation and Drainage Rules 1955 has passed the order changing outlet, therefore, the impugned order be set aside. He has relied on Firm Murlidhar Brijmohan of Jhunjhunu v. State of Raj. ILR (1957) Raj .-725, Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and Another, and 1985 SC 1147.

On the other hand Mr. Mehta has submitted that no interference is called for and the case law cited by the counsel for the appellant is not applicable to the facts of the present case. He has relied on Shivlal Vs. State of Rajasthan and Others,

Heard learned Counsel for the appellant and perused the record as well as the case law.

It is no doubt true that in exceptional circumstances, this Court may exercise its discretionary power under Article 226 of the Constitution even when an alternative remedy is available but it depends on the circumstances of each case.

Admittedly, the order regarding (he change in outlet or otherwise is appealable under the Rajasthan Irrigation and Drainage Rules. The learned Single Judge was aware of the fact that the order of change has been passed with the approval of the higher authorities which is clear from the observation that "though the order of change has been passed with approval of the Superintending Engineer and the Chief Engineer, but still the matter can be agitated by the petitioners by way of an appeal and there is no reason that when the correct facts are brought to the notice of the appellate authority they will stick to the administrative action." The learned Single Judge has also observed that the petitioner should file an appeal before the competent authority and the authority should decide the appeal objectively without being prejudiced to their earlier administrative order as they are deciding the appeal as quashi judicial authority." Thus, the learned Single Judge in the exercise of his discretionary power did not think it proper to go into the facts and to decide the present change in the outlet would yield better result or otherwise as there are essential facts of dispute, which could only be examined by the authorities concerned after hearing them. Under the circumstances the case law cited by the petitioner-appellants is not helpful to them appellants. No injustice has been caused to the petitioners-appellants and we do not find any infirmity or illegality in the order passed by the learned Single Judge. In view of this, no interference is called for. However, we grant further 15 days time from today to the petitioner-appellants for filing an appeal and the delay in filing the appeal will not come in his way as per order of learned Single Judge.

In the result, this special appeal stands disposed of with the above observations.