Rajasthan High Court - Jodhpur
State Of Raj. & Anr vs Anni Devi & Ors on 8 August, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
State of Rajasthan & Anr. Vs. Ravindra Singh & Anr.
(S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
(1) State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10) (2) State of Rajasthan & Anr. Vs. Shri Salam Singh & Ors.
(S. B. CIVIL WRIT PETITION NO.864/10) (3) State of Rajasthan & Anr. Vs. Om Prakash & Ors. (S. B. CIVIL WRIT PETITION NO.865/10) (4) State of Rajasthan & Anr. Vs. Mohan Singh & Anr. (S. B. CIVIL WRIT PETITION NO.866/10) (5) State of Rajasthan & Anr. Vs. Surendra Singh & Ors. (S. B. CIVIL WRIT PETITION NO.867/10) (6) State of Rajasthan & Anr. Vs. Anni Devi & Ors. (S. B. CIVIL WRIT PETITION NO.884/10) (7) State of Rajasthan & Anr. Vs. Madan Singh & Ors. (S. B. CIVIL WRIT PETITION NO.885/10) (8) State of Rajasthan & Anr. Vs. Upendra Singh & Ors.
(S. B. CIVIL WRIT PETITION NO.886/10) Date of order : 8th August, 2016.
HON'BLE MR. JUSTICE SANGEET LODHA Dr. P.S. Bhati, Additional Advocate General assisted by Mr. S.S. Rathore ) Mr. Narendra Gehlot ), for the petitioners.
Mr. B.S. Sandhu ) Mr. Ripudaman Singh) Mr. Ravish Sharma ), for the respondents.
1. These writ petitions involving common questions of law and facts were heard together and are being decided State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters) 2 by this common order.
2. The petitions are directed against various orders dated 29.5.09, 2.6.09, 19.6.09 & 29.6.09 passed by the Circle Irrigation Officer cum Superintending Engineer, Phase-II Circle-I, Indira Gandhi Canal Project ('IGNP'), Bikaner, whereby the appeals preferred by the private respondents herein against the orders passed by the Divisional Irrigation Officer cum Executive Engineer, Division-16, IGNP, Bikaner, directing removal of illegal and unauthorised Siphons have been allowed and the irrigation facility extended to the private respondents through Siphons of specified sizes duly sanctioned stands restored.
3. Precisely, the State Government is aggrieved by the orders impugned passed by its own Irrigation Authority taking the stand that the irrigation in canal area is regulated by the provisions of the statute and the Siphon is not recognized as means of irrigation under the Rajasthan Irrigation and Drainage Act, 1954 (for short "the Act") and the Rajasthan Irrigation and Drainage Rules, 1955 (for short "the Rules"). Besides, it is contended that the State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters) 3 agriculturists of uncommand area have no right to claim canal irrigation in the colony area as a matter of right.
4. It is to be noticed that the facility of irrigation by Siphon to the private respondents herein, was extended pursuant to the decision taken by Cabinet of the State vide order No.207/82 dated 10.8.82. As per the said order, it was decided to provide irrigation facility to lands in uncommand area situated below Birdawal as specified in the order. It was directed that keeping in view, the area to be irrigated, as per the need, small outlets of the capacity 1.5 cusec or more, may be constructed at the cost of the Government. It was further directed that keeping in view, the area where the water required is less than 1.5 cusec, the irrigation facility may be provided through Siphon at the Government cost.
5. Learned AAG submitted that pursuant to the Cabinet order dated 10.8.82, the Siphons of specified sizes were sanctioned between 620.00 to 860.00 of Burji of Indira Gandhi Main Canal so as to extend irrigation facility to the various agriculturists. Drawing the attention of this Court to State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters) 4 the order dated 23.3.93 issued by the State Government, learned AAG urged that the decision of the Cabinet providing the facility of irrigation to the specified uncommand area through Siphons stand revoked and it was specifically laid down that in future no Outlet or Siphons directly from Indra Gandhi Canal and its branches be sanctioned and thus, the orders passed by the Circle Irrigation Officer, in restoring the facility of irrigation through Siphons of specified sizes are not sustainable in the eyes of law and deserves to be quashed. Learned AAG further submitted that there is scarcity of the water and therefore, it is not possible to continue the irrigation facility through Siphons to the lands falling in uncommand area.
6. On the other hand, learned counsel appearing for the respondents submitted that the Circle Irrigation Officer has restored the irrigation to the respondents land through Siphons of the specified sizes duly sanctioned and thus, the State cannot be permitted to question the legality of the orders passed by its own authority empowered under the relevant statute to take decision in this regard. Learned State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters) 5 counsel submitted that the State has not approached the Court with clean hands inasmuch as, vide order dated 1.5.93, the Chief Engineer, IGNP, Bikaner, has sanctioned 49 Siphons between RD 620 to 860 and the list of the Siphons sanctioned was also attached to the order issued as aforesaid. Learned counsel submitted that the Circle Irrigation Officer has restored the irrigation facility to the respondents through Siphons, which are duly sanctioned and not otherwise. Learned counsel submitted that vide order dated 22.3.93, the State Government while reviewing the earlier decision of the Cabinet has restrained the Irrigation Officers from sanctioning the direct outlet/siphons from the Indira Gandhi Canal and its branches in future, however, the Siphons already sanctioned are not disturbed and therefore, the contention sought to be raised by the learned AAG on the strength of order dated 22.3.93, is absolutely devoid of any merit. Learned counsel would submit that unless and until, alternative method of irrigation is developed by the State for irrigation of the respondents' land, the Siphons already sanctioned cannot State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters) 6 be permitted to be removed. Learned counsel urged that as a matter of fact, the entitlement of the respondents to irrigation facility through Siphons stand determined by a Bench of this court vide judgment dated 28.10.09 rendered in D.B.Civil Special Appeal(Writ) No.683/09 and other connected appeals and thus, the order impugned passed by the Circle Irrigation Officer does not warrant any interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India and the writ petitions deserve to be dismissed. Learned counsel has also relied upon a decision of a coordinate Bench of this court in the matter of "Purna Ram & Anr. vs. State of Rajasthan & Ors." (S.B.Civil Writ Petition No.161/06, decided on 27.2.07).
7. I have considered the rival submissions and perused the material on record.
8. Indisputably, the supply of water inter alia from canal in the colony area is regulated by the provisions of the Act and the Rules made thereunder. It is also not in dispute that the Act and the Rules do not provide for irrigation State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters) 7 facility from canal through Siphons. But then, the fact remains that taking into consideration the difficulty of the agriculturists, the decision was taken by the Cabinet vide order dated 10.8.82 inter alia to provide irrigation facility to the agriculturists in uncommand area through Siphons where the requirement of the water is less than 1.5 cusec and pursuant thereto, the Chief Engineer, IGNP, Bikaner, sanctioned the irrigation facility through Siphons of specified sizes to the agriculturists of uncommand area, vide order dated 16.9.82. It is true that vide order dated 22.3.93, the decision taken by the State vide Cabinet order dated 10.8.82 was cancelled however, in respect of the irrigation facility through Siphons, it was laid down that in future, no Outlet or Siphon directly from the Indira Gandhi Main Canal and its branches shall be sanctioned. In this view of the matter, from the order dated 22.3.93, it cannot be inferred that the irrigation facility through Siphons already sanctioned was also ordered to be discontinued. In this view of the matter, in the considered opinion of this court, the order passed by the Circle Irrigation Officer State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters) 8 restoring the irrigation facility to the agriculture filed of the respondents through Siphons of the specified sizes and numbers, duly sanctioned prior to issuance of the order dated 22.3.93, cannot be faulted with.
9. In Purna Ram's case (supra), a coordinate Bench while deciding the writ petitions preferred by the agriculturists, aggrieved by removal of Siphons, issued directions in the following terms:
"Considering the totality of circumstances, I think it appropriate to direct that the petitioners may appear before the local Executive Engineer, and satisfy him individually, about the size of the pipe, and number of siphons sanctioned, and after so satisfying, the concerned cultivator shall be provided the irrigation facility, to the extent, originally sanctioned, till the otherwise irrigation facility is provided by the respondent. It is also made clear that in case, the Executive Engineer finds that in view of the subsequent events, like providing of other irrigation facility by the canal, the subsistence of siphon is not required, in that event, the siphon will not be sanctioned."
10. In Ajmal Singh's case (supra), the Division Bench upheld the finding of the learned Single Judge that the cultivators cannot draw more water by installing Siphons more than the number of Siphons sanctioned or by State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters) 9 installing the Siphons with the diameter of the pipes bigger than the size sanctioned. Suffice it to say that in Ajmal Singh's case (supra), the controversy involved before the Division Bench was whether any cultivator can avail the irrigation facility by installing Siphons beyond the number of Siphons sanctioned or the pipes of the size beyond the size sanctioned and the question was answered by the Division Bench in negative.
11. As noticed hereinabove, the Act and the Rules made thereunder provides for the irrigation facility through water course connected with the outlet at the head, carrying specific capacity of water. Undoubtedly, the irrigation facility through Siphons is not provided for under the Act and the Rules and therefore, nobody can claim irrigation facility through Siphons as a matter of right. But the fact remains that taking into consideration hardship of the agriculturists, the decision was taken by the Cabinet to permit the irrigation facility to the specified uncommand land of the colony area through Siphons and pursuant thereto, the Siphons were sanctioned by the Chief Engineer, State of Rajasthan & Anr. Vs. Ravindra Singh & Anr. (S. B. CIVIL WRIT PETITION NO.863/10 & 7 other connected matters) 10 IGNP, Bikaner. If in the changed circumstances, due to scarcity of the water, if the State Government intends to review its decision to provide irrigation facility through Siphons, nothing prevents it from taking the appropriate decision afresh, considering all relevant aspects including the fact that the respondents herein and their likes are availing the irrigation facility for all these years under the valid sanction issued by the Irrigation Officers pursuant to the Cabinet decision.
12. But, in any case, the order impugned passed by the Circle Irrigation Officer in conformity with the Cabinet decision to provide irrigation facility to the agriculture fields falling in the specified uncommand area through Siphons, does not warrant any interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India.
13. In the result, the writ petitions fail, the same are hereby dismissed. No order as to costs.
(SANGEET LODHA),J.
Aditya/