Sukhdev Singh and Others vs State of Rajasthan and Others

Sangeet Lodha, J.—1. By way of this writ petition, the petitioners have questioned legality of order dated 15.10.15 issued by the State Government granting sanction for amending the Lalewala Minor Head of LNP Distributary of Gang Canal Project on the conditions specified. It is further prayed that the irrigation authorities be restrained from amending the Lalewala Minor Head.

The relevant facts are that the petitioners'' agriculture lands situated in various chaks are being irrigated through LNP Canal Distributary of Gang Canal Project. The Chief Engineer, Water Resources (North), Hanumangarh, vide letters dated 10.7.14 and 1.9.15 made recommendation to the State Government for amending Lalewala Minor Head of LNP Distributory. The State Government in its turn accepting the recommendation, accorded the sanction as prayed for on the following conditions:

The petitioners raised objections against the proposed amendment of Lalewala Minor Head by way of representation submitted to the District Collector, Hanumangarh, Chief Engineer, Water Resources (North), Hanumangarh Junction and Superintending Engineer, Water Resources Circle, Sri Ganganagar. Under the apprehension that the respondents authorities may amend the Lalewala Minor Head, without due process of law, the petitioners have approached this court by way of this petition.

The respondents have filed a reply to the petition taking the stand that the recommendations for amending the head was made after examination of the objections raised by the cultivators and taking into consideration the technical aspects of the matter. It is submitted that on account of the head being amended, other moghas/outlets shall not be adversely affected. It is submitted that the decision to amend the head has been taken after following the procedure laid down. According to the respondents, the decision to amend the head has been taken after giving an opportunity of hearing to the affected cultivators.

By way of an additional affidavit, the respondents have taken the stand that LNP Distributary of Gang Canal was earlier made of mud which is now being made pakka and in this process, the amendment of the heads has been made to meet the technical requirement. It is reiterated that before amending the head, the petitioners were extended an opportunity of hearing. According to the respondents, the amendment of the head was done on 9.12.15 as per the approval granted and the certificate of amendment of head was issued on 23.12.15. It is submitted that on account of the amendment of the head, the water supply to the petitioners'' agriculture field is not reduced and therefore, the petitioners are not adversely affected in any manner, on account of amendment of head.

By way of counter affidavit, controverting the stand taken by the respondents as aforesaid, the petitioners have averred that Lalewala Head was pakka constructed but, so as to take additional advantage, the agriculturists of Lalewala Minor Head damaged the same so as to create the occasion to amend the head. Giving the details of the existing design of Lalewala Minor Head and the amendment made, it is submitted that on account of the amendment made, losses have been caused to the agriculturists of LNP Distributary No. 8, Ratanpura Minor and Newlewala Minor. It is submitted that on 19.11.15, the District Collector apprised the agriculturists that amendment of the head has already been sanctioned by the State Government and therefore, the execution of amendment has to be done. It is submitted that during the pendency of the petition, execution of the amendment was done on 9.12.15, which amounts to over reaching the process of court. It is submitted that so as to extend additional benefits to the agriculturists of Lalewala Minor, B of the head has been increased from 1.00 to 1.23 whereas, only R.L. of crest was not found as per design data.

Learned counsel appearing for the petitioners contended that the sanction was granted by the State Government on the conditions specified, however, ignoring the conditions incorporated, without extending an opportunity of hearing to the petitioners and other affected agriculturists and without ascertaining the fact as to whether interest of any of the agriculturists, is likely to be adversely affected by the amendment of the head, the respondent authorities proceeded to amend the head taking the order dated 15.10.15 issued by the State Government, as the sanction granted for amendment of Lalewala Minor Head. Learned counsel submitted that as a matter of fact, the occasion for amendment of Lalewala Minor Head was created by the agriculturists by damaging the head so as to avail the undue advantage. Drawing the attention of this court to the details of existing and amended design of Lalewala Minor Head of LNP Distributory, learned counsel submitted that initially Lalewala Minor Head was designed to discharge sanctioned water of 9.51Q, the crest design was of 563.45 and B was 1.00 but on account of damage caused by the agriculturists of Lalewala Minor Head, the existing crest was found 562.88 therefore, only the crest was to be restored as per the designed data but in the garb of the amendment, the irrigation authorities also proposed amendment in the B from 1.00 to 1.23. Learned counsel would submit that apparently, on account of amendment of the head as aforesaid, the water supply to the fields of agriculturists of LNP Distributary No. 8, Ratanpura Minor and Newlewala Minor is bound to be reduced. Learned counsel submitted that the action of the respondents in amending the head without extending an opportunity of hearing to the petitioners and their likes, is ex facie illegal, arbitrary and violative of principles of natural justice.

On the other hand, learned Additional Advocate General reiterating the stand taken by way of reply and additional affidavit filed, submitted that the petitioners have not been able to demonstrate as to how on account of amendment of Lalewala Minor Head, water supply to their agriculture fields, is adversely affected. Drawing the attention of this court to the chart giving details of the design of Lalewala Minor Head existing and proposed, learned AAG submitted that while amending the head R.L. of crest has been reduced from 563.45 to 563.19 and the height of the head has been reduced from 2.37 to 2.06, which necessitated increase in the B from 1 to 1.23. It is submitted that on account of amendment of the head as aforesaid, neither the water supply to the agriculturists of Lalewala Minor has increased nor the water supply of the agriculturists of LNP Distributary No. 8, Ratanpura Minor and Newlewala Minor has reduced, in any manner whatsoever. Relying upon the proceedings of the meeting held on 19.11.15, learned AAG submitted that before taking a decision, the affected agriculturists were extended an opportunity of hearing. Learned AAG submitted that in any case, the petitioners who have not been able to show that their rights are adversely affected on account of amendment of the Lalewala Minor Head, cannot be permitted to raise the grievance against the decision of State Government in amending the head. Learned AAG would submit that as a matter of fact, the petitioners have not approached the with clean hands. It is submitted that this joint petition was initially filed by 9 persons including Iqbal Singh s/o. Harnek Singh. However, the petitioner-Iqbal Singh made an application seeking withdrawal of the writ petition, which was allowed by this court vide order dated 8.12.15 and accordingly, the writ petition was dismissed qua the petitioner-Iqbal Singh. Learned AAG submitted that as a matter of fact, before this petition could be taken up by this court for admission, Iqbal Singh alongwith 12 other persons, filed yet another writ petition being No. 13768/15, seeking similar reliefs, wherein, vide order dated 1.12.15, a coordinate Bench of this court while issuing notices to the respondents, granted interim relief in favour of the petitioners therein. It is submitted that the petition filed as aforesaid, was contested by the State by filing a reply thereto and the State also prayed for vacating the interim order by way of an application under Article 226(3) of the Constitution of India, however, the petitioners therein sought permission to withdraw the writ petition and accordingly, vide order dated 8.12.15, the said writ petition was dismissed as withdrawn. Learned AAG submitted that the conduct of the petitioners and their likes, disentitle them from invoking the extra ordinary jurisdiction of this court under Article 226 of the Constitution of India.

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

Indisputably, the sanction issued by the State Government for amendment of Lalewala Minor Head, vide communication dated 15.10.15, was conditional and therefore, before giving effect to the amendment of the Lalewala Minor Head as proposed, the respondents authorities were under an obligation to extend an opportunity of hearing to the affected agriculturists and were under an obligation to ascertain that on account of amendment of the head, the interest of other agriculturists is not adversely affected. A perusal of the proceedings of the meeting dated 19.11.15 placed on record as Annexure R/2, reveals that though it has been recorded therein that all the agriculturists were heard but it in no manner suggests that the objections raised by them were objectively considered. That apart, there is no finding recorded therein that on account of amendment of the head, right of none of the agriculturists is likely to be adversely affected. But then, the petitioners, who are agriculturists having their land irrigated by LNP Distributary No. 8, Ratanpura Minor and Newlewala Minor have also not been able to demonstrate as to how their water supply on account of amendment of Lalewala Minor Head, has been adversely affected. The contention of the petitioners that on account of the damage caused by the Lalewala Minor Head, the existing R.L. of crest was found 562.88 as against the crest designed of 563.45 and therefore, only crest was required to be amended, does not appear to be correct. It is to be noticed that apart from the R.L. of the crest, the variation was found in the depth and height as well. It is pertinent to note that after amendment of the head, R.L. of crest stands reduced from 563.45 to 563.19, the depth stands restored to 3.32 as designed but height stands reduced from 2.37 to 2.06 and the B stands increased from 1.00 to 1.23. According to the respondents, while giving effect to the amendment as proposed, the discharge of water at the head has been maintained and on account of amendment of the head, the water supply of the petitioners has not been reduced. There is nothing on record suggesting that on account of amendment of the head, the water supply to the petitioners'' agriculture fields, has been reduced. In this view of the matter, taking into consideration the fact that the amendment of the Lalewala Minor Head as proposed, has already been given effect to, this court in absence of any material on record showing that on account of amendment of head, the water supply to the petitioners'' agriculture fields, is adversely affected, is not inclined to direct the respondents to restore the position of Lalewala Minor Head, as it was existing prior to the amendment. However, on the facts and in the circumstances of the case, it would be appropriate that the petitioners are permitted to raise their grievance if any, by way of appropriate representation before the State Government, which in its turn, shall decide the same expeditiously, in accordance with law.

Accordingly, the writ petition is disposed of with liberty to the petitioners to make representation to the State Government for redressal of their grievances, if any, within a period of one month from the date of receipt of certified copy of this order. The representation if any, made by the petitioners within the stipulated period, shall be considered and decided by the State Government expeditiously, after giving an opportunity of hearing to the petitioners, in accordance with law, preferably within a period of two months. No order as to costs.