The High Court dismissed the writ petition challenging the sanction of a water course through the petitioner's land. The Court observed that the water course had been running for 32 years without objection and found no cogent reason to obstruct the long-standing irrigation facility.
Petition dismissed; pending applications disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 994/2023
Charan Singh S/o Shri Thanda Singh, Aged About 59 Years, R/o Chak 12H Ward No. 4 Tehsil Sri Karanpur, District Sri Ganganagar.
----Petitioner
----Respondents
For Petitioner : Mr. N.R. Budania For Respondents : Ms. Abhilasha Bora, AGC with Ms. Akanksha Choudhary. Mr. Kanishk Singhvi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment
Reserved on 28/03/2023 Pronounced on 04/04/2023
ii) Any other appropriate writ or direction necessary for justice be issued.
iii) Cost of the writ petition may kindly be awarded in the favour of petitioner.”
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2.2 And that the executive engineer allowed the aforementioned application, vide the impugned order dated 07.10.2022, and sanctioned/regularized the water course through the land of killa nos. 1, 10, 11, 20, 21 of murabba no.7.
2.3 The petitioner filed an appeal before the Superintending Engineer, which however, was rejected vide the impugned order dated 04.01.2023, on the ground of the appeal being barred by limitation.
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2.4 Aggrieved by the order passed on 07.10.2022 by the Executive Engineer and the order passed on 04.01.2023 by the Superintending Engineer, the present petition has been preferred claiming the afore-quoted reliefs.
3.1 However, as per learned counsel, the Executive Engineer without sending the record to the District Collector and without following the mandatory provision as mentioned above, allowed the application filed by the private respondent vide the impugned order dated 07.10.2022, while ignoring the objection filed by the petitioner.
3.2 Learned counsel thus made an assertion that the said impugned order order was passed de hors the mandatory provisions of the Rules of 1955 and the Act of 1954. He submitted that the impugned order dated 07.10.2022 was passed while placing reliance on Section 29(2) of the Act of 1954, which is nothing, but misreading of the said provision by the executive engineer concerned, as in the present case, the provision contained in Section 29(2) is not at all applicable.
3.3 Learned counsel for the petitioner assails the impugned order dated 07.10.2022 on the ground that the same is not in
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consonance with the law, as laid down by a Coordinate Bench of this Hon’ble Court in the judgment rendered in the case of Inder Raj Vs. Executive Engineer, 1986 (2) WLN 57 , whereby, upon due consideration of the provisions of Sections 21 to 25 of the Act of 1954, it was categorically held that the Collector is the only competent authority to deal with the application seeking sanctioning of a new water course and pass final orders thereon. 3.4 To fortify such submissions, learned counsel also relied upon the judgment rendered by a Coordinate Bench of this Hon’ble Court in Hanuman & Anr. v. The State of Rajasthan & Ors. ( S.B. Civil Writ Petition No. 10809/15, decided on 02.03.2016) .
3.5 Learned counsel further submitted that the impugned order dated 07.10.2022 was not pronounced on that date, rather it was pronounced later on; the petitioner, as averred in the petition, came to know about such pronouncement only on 30.11.2022, whereupon he has filed the appeal before the appellate authority, which was dismissed vide the impugned order dated 04.01.2023 on the ground of delay.
3.5.1. Learned counsel submitted that though as per Rule 56 of Rules of 1955, limitation for filing of an appeal is 30 days, but alongwith the appeal, the petitioner also filed an application under Section 5 of the Limitation Act, specifically mentioning the circumstances, which prevented him from filing the appeal in time. However, the Superintending Engineer, without considering the same, dismissed the appeal vide the impugned order dated 04.01.2023.
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3.6 It was further submitted that no water course existed on the land of murabba no.7, but an internal field channel ( Aad ) was put in place by the petitioner in killa nos. 1, 10, 11 of murabba no.7 for irrigating his land, and that, the entire land of killa nos. 1, 10, 11 and the same is in the khatedari of the petitioner. Nonetheless, as per learned counsel, the Executive Engineer, passed the impugned order, while treating the internal field channel, constructed by the petitioner, as running water course. As an effect of the sanction in question, the khatedari land of each killa of the petitioner would be reduced by 2 biswas, and consequent whereupon, an entry would also be made in the revenue records, showing the same as a water course (khala).
4.1 Learned counsel submitted that the private respondent filed the application seeking the sanction in question, as no water course was existing so as to enable her to cultivate her field from the sanctioned inlet for square no. 15 at killa no. 21, on count of the fact that the same falls in the burial ground. It was further submitted that the private respondent has been cultivating her field from the water course of square no.7 running from killa nos.1, 10, 11, 20, 21, and thus, by way of the aforesaid application, it was prayed that the water course running earlier in killa nos. 1, 10, 11, 20, 21 of square no. 7 be regularized and inlet of petitioner’s land be sanctioned at killa no.1. As per learned counsel, even the Executive Engineer vide report dated
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06.11.2020 recommended the same in the interest of providing irrigation facility to the private respondent.
4.2 It was further submitted that the water course is running through killa nos. 1, 10, 11, 20, 21 of murabba no. 7, for the last 32 years when the land was bought by the private respondent, and since then, both petitioner as well as the private respondent have been irrigating their lands through the said water course.
4.3 As per learned counsel, though the said water course is not recorded in the Chak map, no objection was raised by the petitioner either with regard to his water turn, or that of the private respondent, having been fixed through the same. Learned counsel submitted that the said position with regard to irrigation of the fields of the parties has been continuing for the last 32 years, and thus, after lapse of such a long period, the petitioner cannot raise any objection with regard to such sanction, at such a belated stage.
4.4 Learned counsel submitted that though at times, it happens that water courses do not run in the exact places, where they are marked in the Chak maps; the same happens due to certain topographical and slope issues, and thus, and in those circumstances, certain water courses are constructed, for the benefit of the agriculturists of the Chak concerned, so as to enable them to get sufficient share in the water course; the same has been the position in the present case also. In addition, learned counsel asserted that there is water course in killa nos.1, 10, 11, 20, 21 in square no.7, but the petitioner, while annexing the Jamabandi of square no. 4, is trying to show that there is no water course in square no.7, and thus, the petitioner has intentionally
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and deliberately concealed the material information regarding square no. 7, by not annexing the Jamabandi of square no.7. Thus, as per learned counsel, it is apparent on the face of the record that the petitioner has not approached this Court with clean hands.
4.5 In furtherance, learned counsel submitted that the application made before the Executive Engineer by the private respondent was not for sanctioning of a new water course on the petitioner’s land, but to regularize the existing water course and for sanctioning of inlet at killa no.1; and on that count, the objection filed by the petitioner in pursuance of notice dated 07.04.2022 was not required to be forwarded to the District Collector by the Executive Engineer.
4.5.1. Furthermore, as per learned counsel, the procedure mandated under Sections 21 to 28 of the Act of 1954 is only required to be adopted when a new water course is being sanctioned. Learned counsel also submitted that the Executive Engineer, while passing the impugned order dated 07.10.2022, has rightly placed reliance on Section 29(2) of the Act of 1954 as the sanctioned inlet at Killa no. 21 in square no. 15 was never in use, and therefore, the same ought to be considered as cancelled, in view of the said provision of law. Moreover, as per learned counsel, the petitioner never raised any objection in the year 1997 itself, when for the first time, the application was moved by the private respondent, rather the objection was raised by the petitioner only in the year 2007.
4.6 Learned counsel asserted that the averment made by the petitioner to the effect that the impugned order of the Executive
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Engineer was not pronounced/passed on 07.10.2022, is apparently incorrect and false, for nothing is forthcoming on record from the side of the petitioner to substantiate the same. 4.6.1 Learned counsel submitted that the impugned order was passed on 07.10.2022 itself, and that, upon the said order being challenged by filing an appeal before the Superintending Engineer, the same was rightly dismissed vide the impugned order dated 04.01.2023 on the ground of delay in absence of a sufficient explanation furnished by the petitioner to justify such delay; the said appeal was rightly rejected in view of a clear provision regarding period of limitation, as contained in Rule 56 of the Rules of 1955, for filing an appeal. 5. Heard learned counsel for the parties as well as perused the record of the case along with the judgment cited at the Bar. 6. This Court observes that the issue in question is regarding the water course running through the petitioner’s land and irrigating the land of the private respondent. The water course has been running through the killa no. 1, 10, 11, 20, 21 of the murabba no. 7 of the Chak since 32 years when the land was bought by the private respondent and both petitioner and private respondent are irrigating their lands through the said water course. It is evident from the factual matrix that the petitioner had not raised any objection to the same however as soon as the private respondent applied for regularizing the existing water course objections were raised by the petitioner. 6.1 This Court further observes that the private respondent on 15.04.2022 applied before the Executive Engineer for regularizing the existing water course and for sanctioning of inlet at killa no.1.
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After perusal of the records the Executive Engineer and Superintending Engineer, it is clear that the averments made by the petitioner hold no substance.
6.2 Furthermore, though the learned counsel for petitioner submitted that the appeal could not be filed in time, due to the delay in pronouncement of the impugned order and knowledge thereof to the petitioner, but the petitioner completely failed to substantiate the same, while preferring the appeal.
6.3 Apart from the above, this Court also observes that in the given factual matrix, it would not be appropriate to obstruct the irrigation facility in question being availed by the respective party for last more than 32 years, as if it is so done, the same would have adverse impact upon the cultivation activities etc, which is not the appropriate course to be adopted; more particularly, when this Court does not find any cogent reason to make any interference in the impugned orders passed by the learned authorities below.
6.4 Also, the judgments cited on behalf of the petitioner do not render any assistance to his case, so as to warrant grant of any relief to the present petitioner.
(DR. PUSHPENDRA SINGH BHATI), J.
SKant/-
2 issues framed by the court
Whether the impugned orders sanctioning water courses though not strictly following the procedure laid down by the Act and Rules are acceptable in view of the long-standing usage of the water courses
Whether the objection raised by the petitioner regarding the regularisation of the existing water course warrants setting aside the orders of the authorities below?
Colour shows how this judgement treated each authority
Inder Raj Vs. Executive EngineerReferred¶38
Inder Raj Vs. Executive Engineer, 1986 (2) WLN 57
Hanuman & Anr. v. The State of Rajasthan & Ors.Referred¶39
Hanuman & Anr. v. The State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 10809/15, decided on 02.03.2016)
6 provisions across 3 enactments
Charan Singh S/o Shri Thanda Singh
State Of Rajasthan
Tejkour W/o Rajendra Singh
DR. PUSHPENDRA SINGH BHATI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
