Sucha Singh & Anr. @APPELLANT@Hash State of Rajasthan & Ors.

The petitioners herein are agriculturists having lands in Murabba Nos.36 and 37 of Chak 37BB Tehsil Padampur. The respondents No.4 and 5 are also

having agricultural lands in the same Chak. The petitioners are getting water supply for their land from the Naka located at Kila Nos.21 and 25 of

the Murabba No.37. The petitioners claim that the respondents No.4 and 5 were getting water supply from unauthorised Nakas located between Kila

Nos.20 to 21 and Kila Nos.16 to 25 respectively. These respondents moved an application before the Superintending Engineer for regularising water

supply to their fields from these Nakas which the petitioners allege were unauthorized. The Superintending Engineer, passed an order dated 16.2.2010

turning down this prayer by order (Annex.P/1) dated 16.2.2010 directing that the respondents shall get water supply from these Nakas upto 15.4.2010

whereafter, water shall be supplied to their fields from the regularly sanctioned Nakas. After the Superintending Engineer had turned down the prayer

of the respondents to sanction the questioned Nakas, they moved another application for sanctioning the same Nakas to the Executive Engineer, who

sought the FKL report from the Assistant Engineer who in turn, sought the reports from the Junior Engineer as well as the Patwari. The Junior

Engineer prepared the map giving the FKL of both the Nakas. The Patwari forwarded a report that the Nakas being used by the respondents were

not sanctioned and that the same had been closed as per the order of the Superintending Engineer. The respondent Nos.4 & 5 filed a Civil Suit

No.20/2010 in the court of the Civil Judge, Sriganganagar praying that the unsanctioned Nakas situated between Kila Nos.20 and 21 of Murabba

No.37 and Kila Nos.16 to 25 of Murabba No.36 being used by them since long be regularised and the Irrigation Authorities be restrained from

interfering in the water supply being made to them from these Nakas. The said civil suit was got dismissed as not pressed by order dated 8.7.2010.

The petitioner No.2 moved an application dated 14.5.2010 before the Superintending Engineer praying that the Executive Engineer be directed to

ensure compliance of the order (Annex.P/1) dated 16.2.2010. The Superintending Engineer, on receiving such application directed the Executive

Engineer to submit compliance report of the order dated 16.2.2010. The order was accordingly complied; the disputed Nakas were shut down and the

compliance report was submitted by the Assistant Engineer concerned on 23.9.2010. The petitioners claim, that inspite of the fact that the

Superintending Engineer had turned down the prayer of the respondents to regularise/sanction the disputed Nakas, the Executive Engineer again

issued a notice dated 27.7.2010 for the purported regularisation of the very same Nakas in relation whereto, the order dated 16.2.2010 had been

passed by the superior authority. The said notice has been annexed as Annex.P/10 and is assailed in this writ petition. The petitioners have challenged

the impugned notice on the ground that the same, apart from being totally illegal also tantamounts to insubordination in reference to the order passed

by the superior authority i.e. the Superintending Engineer. The petitioners crave quashing of the impugned notice (Annex.P/10) dated 27.7.2010

through the instant writ petition preferred under Article 226 of the Constitution of India.

While entertaining the writ petition on 26.11.2010, this Court stayed proceedings sought to be undertaken in furtherance of the impugned notice dated

27.7.2010. The respondent, Irrigation Authorities have filed a reply to the writ petition without seriously denying the submissions made by the

petitioners in their writ petitions and it is stated that the impugned notice was issued in a routine manner. The contesting private respondents Nos.4 &

5 have not filed any reply to the writ petition despite service of notice.

Having heard and considered the arguments advanced by the learned counsel for the parties and after going through the documents annexed with the

writ petition more particularly, the order dated 16.2.2010 passed by the Superintending Engineer; the order dated 8.7.2010 whereby the civil suit filed

by the respondents was rejected and the impugned notice (Annex.P/10) dated 27.7.2010, this Court is of the firm opinion that there existed no cause

with the Executive Engineer to even entertain the application filed by the respondents for sanction of the disputed Nakas. The superior authority i.e.

the Superintending Engineer had rejected the very same prayer made by these very respondents by order dated 16.2.2010. The controversy regarding

sanctioning of these Nakas stood settled with rejection of the civil suit filed by the respondents vide order (Annex.1) dated 16.2.2010. Thereafter, the

Executive Engineer concerned could have entertained any application for sanction of the same Nakas only under significantly changed circumstances

and that too after seeking the permission of the Superintending Engineer.

In view of the above discussion, this Court is of the firm opinion that the impugned notice (Annex.P/10) dated 27.7.2010 is absolutely illegal and was

issued with total non-application of mind to the material facts and by virtual transgression of jurisdiction and hence, the same cannot be sustained.

The writ petition thus deserves to be and is hereby allowed. The impugned notice (Annex.P/10) dated 27.7.2010 is hereby quashed and set aside. Stay

application is disposed of.

No order as to costs.