Rajasthan High Court - Jaipur
Jarnel Singh And Anr. vs State Of Rajasthan And Ors. on 6 January, 1992
Equivalent citations: AIR1992RAJ173, 1992(3)WLC24, 1992WLN(UC)481
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT Balia, J.
1. By this writ petition, petitioners challenge the order Ex.1 dated 6-10- 1986 by the Executive Engineer, Gang Canal, North Division, Sriganganagar, order Ex.2 dated 26-12-1988 by the Superintending Engineer, Irrigation Circle, Sriganganagar and order Ex.3 dated 5-9-1991 by Additional Chief Engineer, Irrigation, North Division, Hanumangarh.
2. Brief facts giving rise to the aforesaid petition, may be stated thus petitioner No. 1 Jarnel Singh is a resident of Chak 49, G. G. Tehsil Karanpur and petitioner No. 2 Harchand Singh is co-sharer of Chak 47, G.G. I of Tehsil Karanpur, District Sriganganagar. Land falling in Chak 47 G.G, I is being irrigated by water supply through an outlet situated at Stone No. 143 of Canal G.G. Minor. Two separate outlets for supply of water for irrigating lands of Chak 49 G.G., and Chak 47 G.G. I were situated at Stone No; 151 of Canal G.G. Minor. Two outlets through which Chak 47 G.G. II and Chak 49 were supplied water for irrigation were situated at the tail end of the Canal G.G. Minor. On an application made by respondent No. 5 Mukhtiar Singh, Executive Engineer, Gang Canal, North Division, Sriganganagar passed an order on 6-10-19S6 (Ex.1) and ordered shifting of the outlet through which Chak 47 G.G. II was supplied with water from Stone No. 151 of Canal G.G. Minor to Stone No. 106 of Canal F.G. Minor. It is not disputed that before passing the said order, notices were issued to all co-sharers of 47 G.G. II and no objection on behalf of any of the co-sharer of Chak 47 G.G. II was raised. However, the present petitioners preferred appeals before the Superintending Engineer respondent No. 3 against the order dated 6-10-1986 (Ex, 1). The appeals filed by the petitioners were dismissed by a common order dated 26th December, 1988 (Ex.2).
Further appeal before the Additional Chief Engineer also met with ho success. The order passed by the Addl. Chief Engineer is dated 5-9-1991 (Ex.3). The petitioners have challenged the aforesaid three order's through the above writ petition.
3. A caveat has been entered on behalf of respondent, No. 5 Mukhtiar Singh to oppose the admission of the petition and a reply oh behalf of Mukhtiar Singh has also been filed.
4. We have heard Mr. S. N. Sharma, learned counsel for the petitioners and Mr. H. S. Sandhu, learned counsel for the caveator respondent No. 5 and perused the orders.
5. It has been urged on behalf of the petitioners that impugned orders have been passed in exercise of powers conferred under Rule 11(3) of the Rajasthan Irrigation and Drainage Rules, 1955, hereinafter called as "the Rules" which is purported to have been framed for giving effect to Section 31 of the Rajasthan Irrigation and Drainage Act, 1954, hereinafter called as "the Act". It is contended before us that Rule 11(3) of the Rules is ultra vires the provisions of the Act and, therefore, the orders passed under the said rule of the Rules Are wholly without jurisdiction. The Act does not authorise shifting, varying or opening of any outlet under the provisions of the Act. As a limb of this contention, it was also contended that Rule 11(3) of the Rules has been stated to have been framed to give effect to provisions of Section 31 of the Act but a reading of Section 31 goes to show that no such rule can be framed for giving effect to Section 31 as the Rule 11(3) of the Rules.
6. It will be appropriate to make reference to the text of Rule 11(3) and other relevant provisions of the Act which have a bearing on the controversy which are as under :--
"Rule 11(1) and (2).......................
(3) Notice for the reduction and removal of outlets with brief reasons therefore, shall be issued by the Divisional Irrigation Officer and given adequate publicity through Panchayats requiring all persons affected by such reduction or removal, who may wish to make objections to submit their objections in writing to the Divisional Irrigation Officer within 15 days from the date of issue of such notice. The Divisional Irrigation Officer shall, after considering all such objections, make necessary orders. Appeal if any, against the orders of the Divisional Irrigation Officer shall lie to the Superintending Irrigation Officer within 15 days from the date of issue of the orders and his decision in the matter shall be final.
Section (i)...............................
(ii) Irrigation works means a work or system or works, natural or artificial, not being a minor irrigation work as defined in Section 2 of the Rajasthan Minor Irrigation Works Act, 1953, and includes -
(a) any canal, channel, pipe or reservoir constructed, maintained or controlled by the State Government for supply or storage of water,
(b) any work, embankment, structure or supply and escape channel connected with such canal, channel, pipe of reservoir,
(c) any water course,
(d)any part of a river, stream, lake or natural collection of water or natural drainage channel to which the State Government applies the provisions of Part II of this Act;
(iii) "drainage work" includes escape channels from a canal, dams, weirs, embankments, sluices, groins and other works for the protection of lands from flood or from . erosion, but does not include works for the removal of sewage from towns;
(iv) "water course" means any channel (not constructed and maintained) at the cost of (State Govt.) which is supplied with water from a canal, channel, pipe or reservoir and includes any subsidiary work belonging to such channel;
(v) "outlet" means an opening constructed in a canal through which water passes into a water course or directly on to any land.
Section 4(1) and (2)......................
(3) The State Government may, from time to time, by notification in the official Gazette, appoint--(i) an Officer to exercise general control over all irrigation and drainage throughout the State of Rajasthan, and
(ii) Such other officers as it considers necessary to exercise control over irrigation and drainage works in a circle or a division or a sub-division constituted under Sub-section (1).
(4) The State Government may, from time to time, declare by notification in the (official Gazette) the Officers by whom and the local limits within which all or any of the powers or duties hereinafter conferred or imposed shall be exercised or performed.
Section 6. Powers of Irrigation Officers --At any time after the day so named any Irrigation Officer, acting under the orders of the State Government in this behalf, may enter or any land or remove any obstructions and may close any channels and do any other thing necessary for such application or use of the said water.
Section 30. Procedure applicable to occupation for extensions and alternations. The procedure hereinabove provided for the occupation of land for the constructions of a water course shall be applicable to the occupation of land for any extension or alternation of a water course, and for the deposit of soil from water course clearances.
Section 60. Power to make rules --(1) The State Government may, from time to time, make rules to regulate the following matters:--
(a) the proceedings of any officer who, under any provision of this Act, is required or empowered to take action in any matter;
(b) the cases in which, and the officers to whom, and conditions subject to which, orders and decisions given under any provisions of this Act, and not expressly provided for as regards appeal, shall be appealable;
(c) the persons by whom, the time place or manner in which anything for the doing of which provision made in this Act, shall be done;
(d) the amount of any charge made under this Act;
(e) and generally to carry out the provisions of this Act.
(2) Such rules shall be published in the official Gazette and shall thereupon have the force of law."
7. Section 60 which authorises State Govt. to frame rules does not specify that rules can be framed for the purposes of empowering closing, varying, shifting, or opening of outlet.
8. The principles on which the validity of delegated legislation, which undoubtedly Rule 11 is, are well established. The power to make subordinate legislation is derived from the enabling act and it is fundamental that the delegate on whom such a power is conferred is to act within the limits conferred on it. Where power has been conferred on the delegate in the general term like 'to carry out the purposes of the Act', it is well established that the powers are of widest amplitude and are not circumscribed by the fact that certain other specific matters have also been stated in addition to the general power of framing rules in the authority conferring such delegation. The only inhibition where power has been conferred generally to frame rules to carry out the purposes of the Act is that delegated legislation must be capable of being related to one of the prescribed purposes and the Court is entitled to read the Act in this way.
9. In Attorney General for Canada v. Hallet & Carey IO reported in 1952 AC 427 (PC) the question arose as to the scope of the delegated authority of Governor and Council "to authorise such acts and things as is being necessary or advisable for the purposes of National Emergency Transitional Powers Act, 1945". The Court opined : "Parliament has chosen to say explicitly that he shall do whatever things he may deem necessary or advisable..... That does not allow him to do as whatever he may feel inclined, for what he does must be capable of being related to one of the prescribed purposes and the Court is entitled to read the Act in this way". The same view was expressed in Mc Eldowney v. Forde reported in (1969) 2 All ER 1039.
10. Their Lordships of the Supreme Court in R. & H. Districts Electric Supply Co. v. State of U.P. reported in AIR 1966 SC 1471 (at pp. 1477-78) spoke thus:
"Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purpose of the Act; and Section 15(2) specifies some of the matters enumerated by clauses (a) to (e), in respect of which rules may be framed. It is well settled that the enumeration of the particular matters by Sub-section (2) will not control or limit the width of the power conferred on the appropriate Govt. by Sub-section (1) of Section 15; and so, if it appears that the item added by the appropriate Government has relation to conditions of employment, its addition cannot be challenged as being invalid in law."
11. While interpreting the scope of the Rule making power under the U.P. Municipalities Act (2 of 1916), their Lordships of the Supreme Court in Afzal Ullah v. State of U.P., AIR 1964 SC 264 observed as under :--
"It is now well settled that the specific provisions such as are contained in the several clauses of Section 298(2) are merely illustrative and they cannot be read as restrictive of the generality of powers prescribed by Section 298(1) are very wide and they take in within their scope bye-laws like the one impugned in the instant case, it cannot be said that the powers enumerated under Section 298(2) control the general words used by Section 298(1), so that any cases not falling within the powers specified by Section 298(2) may well be protected by Section 298(1) provided, of course, the impugned bye-laws can be justified by reference to the requirements of Section 298(1). There can be no doubt that the impugned bye-laws in regard to the markets framed by the Tanda Municipalities are for the furtherance of municipal administration under the Act, and so, would attract the provisions of Section 298(1)."
12. Judged in the light of the above principles, it is clear that under Section 60(i)(e) of the Act, the power has been conferred in a very general term on the State Government to frame rules for carrying out the purposes of the Act which is to regulate distribution of water supply through irrigation and drainage system for better irrigation of the area and if the impugned rule is related to this object, the same cannot be held to be ultra vires of the provisions of the Act merely because it is not referable to other items which have been specified for the purposes of framing the rules.
13. In a recent decision, their Lordships of the Supreme Court in Maharashtra State Board of Secondary and High Secondary Education v. Paritosh Bhupesh Kumarseth, AIR 1984 SC 1543 (at p. 1553), have observed as under:--
"The constitutionality of the regulations has to be adjudged only by a three-fold test namely, (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitation imposed by the Constitution."
14. Thus, it is clear that the validity of a delegated legislation has to be judged on three conditions viz.;
(1) Whether the provisions of such rules fall within in the ambit and power conferred on the delegate.
(2) Whether the rule is to any extent inconsistent with the provision of the enabling Act.
(3) Whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution.
15. Undisputedly, the case of the petitioners does not require our attention to conditions Nos. 1 and 3. The only ground urged before us for holding the impugned provisions to be ultra vires is that it is inconsistent with the provisions of the enabling act and we are required to consider the issue from that aspect.
16. From the perusal of the scheme of the Act, it is apparent that the purpose and intent of the Act is to regulate irrigation and drainage: in the State of Rajasthan for distributing water supply for the purpose of irrigation for furthering the interest of agriculture through better irrigation. From the combined reading of definitions of irrigation work, drainage works, water course and outlet, there cannot be any doubt that outlet is an essential part of the system of the canal irrigation and establishment of system of canal distribution will certainly include establishment of outlets. Therefore, opening, closing, varying and shifting of outlet is directly relatable to the purpose of the Act for which the powers by the authorities under the Act can be exercised. This way of the reading of the scheme of the Act is also not seriously disputed before us. What is in effect contended by the learned counsel for the petitioners Mr. S. N. Sharma is that there is no specific provision in the Act prescribing for opening, closing, and varying of outlet and in, the absence of any provision to that effect, no rule can be framed. It is contended with reference to reply submitted on behalf of respondent No. 5 and arguments raised on his behalf that the respondents have stated that the power has been exercised to give effect to Section 20 but Rule 11(3) of the Rules, 1955 cannot be related to Section 20. For this contention, learned counsel relies on the decisions rendered in Manjit Singh v. The Superintending Engineer, AIR 1964 Punjab 464 and Jaimal v. The State of Rajasthan, 1977 WLN (UC) 275.
16-A. In Jaimal's case (supra), it was held by this Court that Section 20 applies only when supply of water is required from existing water course and, therefore, provisions of Section 20 does not apply to alteration of water course and, therefore, Rule 11(3) cannot be saved with reference to Section 20. Pursuing this contention further reliance has been placed on a decision rendered in Manjit Singh's case (supra).
17. We do not find any such inhibition to hold against the validity of the rules in the aforesaid decisions. On a close scrutiny of the authorities relied on by the learned counsel for petitioner, we find ample support for the proposition that establishment of outlets and any alteration in the same is very much part of the established system of irrigation and such an act is directly related to the purposes for which the Act has been enacted.
18. It has been held in Jaimal Ram's case (1977 WLN (UC) 275) (supra) as under :--
"There is no doubt that the established system of canal distribution Will certainly include establishment of outlets which form part of the system of canal irrigation, but two things required to be considered. Firstly, the provisions of the Act. Rule 11 was made to give effect to the provisions of Section 31 as its marginal note makes it clear. Secondly, the case with which we are concerned is not a case of changing or altering the distribution system. It is a case of allowing extra land to be irrigated from an existing outlet and such a situation is contemplated and provided for by Section 20 of the Act."
19. It has also been held in Manjit Singh's case (AIR 1964 Punjab 464 at p. 465) (supra) as under:--
"As rightly contended by the learned counsel for the petitioners, the Divisional Canal Officer may and indeed has the power to construct as many outlets as appear to him desirable for the supply of water to the water courses maintained by right holders.
The learned Judges further went on to state:
if that were so, there is nothing in the Act to prevent the authorities to construct another outlet and a proper and equitable distribution of the flow can be ensured."
20. From the above, it is apparent that through two decisions relied on by the learned counsel for the petitioner are suggestive of the fact that where water is to be supplied from a new outlet, the situation strictly does not fall within the four corners of Section 20 which governs the case of supplying water through existing water courses but it has been unhesitatingly accepted that power to establish new outlets for the purposes of Act vests in authorities under the Act.
21. Merely because the said impugned rule is not covered under Section 20, it cannot be said that establishment of new outlets or closure, shifting and varying in existing outlets is beyond the scope of power to be exercised under the Act. Section 6 authorises the irrigation officers appointed under the Act to enter on any land or remove any obstructions and he may close any channels and do any other thing necessary for such application or use of the said water. Section 30 provided that various provisions relating to procedure for supply of water through existing water course also apply for extensions or alterations. Section 31 also provided for laying down conditions for supply of water from an irrigation work. Thus, there are sufficient indications under the various provisions of the Act for eventualities of creating new water courses, extension of existing water courses and alteration in the existing water courses. Thus, any change in the established system or irrigation through various methodology would also include change in such system by having recourse to opening, closing, shifting or varying any outlet. We have no hesitation in holding that the impugned rule is related to prescribed purposes for which the Act has been framed and, therefore, the rule cannot be held to be ultra vires the provisions of the Act.
22. It may also be stated that even assuming that there is no specific provision to which the impugned rule can trace its origin even then undisputedly there is no prohibition against framing of such rule and so long as the rule can be related to general purposes for which the Act has been enacted. It would be within the province of the rule making authority to frame general rules for the purposes of the Act and to find purposes of the Act, the whole purport and the entire scheme of the Act have to be read together.
23. Learned counsel next invited our attention to the provisions of the Northern India Canal and Drainage Act (for short 'the Central Act') and contended that the provisions of the Central Act and the State Act are pari materia and while under the Central Act, Section 30A was inserted under the Act itself for the purposes of conferring power on the authorities under the Act for the purposes, the same having not been done under the State Act, the same could not have been achieved by framing rules. This argument is stated only to be rejected. Suffice it to state that it is inherent in the contention of the learned counsel for the petitioner that the impugned rule has direct nexus to fulfill the purpose for which the main Act has been enacted and applying the principles discussed above, the rule cannot be held to be ultra vires only for the reason that while Central Act has enacted certain provisions in the main Act, therefore, such power cannot be conferred by the State through framing rules only.
24. It may also be noticed that learned counsel for the petitioners laid a great stress on the fact that Rule 11(3) cannot be related to the purposes of Section 31 under which heading, the rule has been placed. It may be stated that Section 31 provides for framing general conditions under which water supply can be made and providing an opening, closing of an opening or shifting or varying of an opening through which water is supplied can well be embraced under the general conditions under which water can be supplied. Even if for the sake of the argument, it be assumed that such a rule could not have been framed under Section 31 as we have discussed hereinabove that impugned rule is directly related to the purposes of the Act and there are enough indications under Sections 6 and 30 conferring such power on the authorities appointed under the Act, the rule cannot be held to be ultra vires merely because it refers its origin to a wrong provision. Reference in this connection may be made to the decisions of their Lordships of the Supreme Court in Afzal Ullah's case (AIR 1964 SC 264) (supra) and in Gopal Narain v. State of Uttar Pradesh reported in AIR 1964 SC 370.
25. It was next contended by the learned counsel for the petitioners that the impugned orders are not sustainable on merits as they are not in the better interest of the irrigation. We may be traversing a thorny path, if we were to examine the expert opinion in this regard through a microscopic examination. Courts do not possess the specialised knowledge about the functioning of the irrigation system. When the authorities who are experts in the field having qualified engineers and scientists, in the absence of any allegations of mala fide, their opinion has to be accepted ordinarily to be correct on the point as to what is in the best interest of the irrigation. Nothing substantial of that sort has been pointed out so as to warrant any interference while exercising extraordinary jurisdiction under Article 226 of the Constitution of India to interfere with the impugned orders on the ground that alternative suggested could have been better in the interest of justice and irrigation. Suffice it to state that the Executive Engineer himself has stated that if the co-sharers of Chak 49 also feel that their Chak is not being properly irrigated through the existing outlets, they may also seek change in the established system or irrigation by making necessary application.
26. Lastly, it was contended by the learned counsel for the petitioners that on account of shifting of outlet of Chak 47 GG II from the existing place, the total water supply which reaches up to the point of the outlet for the two Chaks will be sufficiently reduced because one Chak is taken out of established system of irrigation and, therefore, it was necessary that co-sharers of adjoining Chaks also ought to have been issued notices before making any order about change in the existing system or irrigation. Undisputedly, the petitioners are not co-sharers of the Chak 47 GG II of which existing system of irrigation was being altered. There is no dispute about the fact that no co-sharer of Chak 47 GG II had objected to the impugned change. In view of these admitted facts, the contention of the petitioners about the lack of notice to co-sharers to other adjoining chaks cannot be accepted. It is only co-sharers of the Chak whose existing system of irrigation is sought to be changed are required to be given notice before such change is effected and that having been done, there is no breach of any rule or principles of natural justice in giving effect to the proposed alteration. It has rightly been pointed out by the Executive Engineer that if in the like manner, co-sharers of Chak 49 seek any alteration in the existing system or irrigation on the ground that it is not conducive for better irrigation, their application for alteration will also be considered on the same anvil.
27. In this connection, it may be pertinent to notice that both the petitioners are not co-sharers of Chak 47 GG 11. The existing system of irrigation was altered only with respect to Chak 47 GG II to which both the petitioners do not belong, therefore, prima facie there is justification for the objection raised by the counsel for the caveator that the petitioners have no locus-standi.
28. No other point has been raised.
29. We find no force in any of the contentions, raised by the petitioners and consequently, the writ-petition is dismissed in limine. There will be no order as to costs.