1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Manphool Vs. State of Raj. & Anr. S.B.CIVIL WRIT PETITION NO.6183/2007 Date of Order : : 21/10/2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.J.L.Purohit, for the petitioner. Mr.Deepak Choudhary,Dy.Govt.Counsel for the respondents. Mr.Vijay Jain, counsel for the intervener. BY THE COURT: By the instant writ petition under Article 227 of the Constitution of India, the petitioner seeks a direction in nature of prohibition restraining the respondent No.2 from constructing a new water course in his land without proceedings under Sections 22, 24 and 25 of the Irrigation and Drainage Act, 1954 (for short “the Act of 1954” hereinafter) and further restraining the respondent No.2 to bring about the change in the existing irrigation system under 2 Rule 11(2) of the Irrigation and Drainage Rules, 1955 (for short “the Rules of 1955” hereinafter. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the petitioner is an agriculturist having possession over the land in Chak No.5 KNN in squares covered by stone Nos. 344/371 and 344/372. The land belonging to the petitioner is irrigated from the Canal in Chak No.5 KNN. The water courses shown in the original Plan Annexure-2 are the existing water courses, which have been sanctioned by the Irrigation Department, however, now the respondent No.2 wants to change the water course without following the procedure provided under Sections 22, 24 and 25 of the Act of 1954 as also the Rule 11(2) of the Rules of 1955. Learned counsel for the petitioner has relied on the decision of this Court in Indraj Vs. Executive Engineer, 1986 RLR 547 and Amar Singh & Ors. Vs. State of Raj. & Ors, 1995(1) WLC (Rauj.) 744. Learned Deputy Government Counsel appearing for the respondents submits that in the existing irrigation system, there is Kuchha Khala and now Chak No.5 KNN falls in command area and therefore, Pucca Khala is being constructed for providing better irrigation facilities and at the 3 same time to stop the unnecessary pilferage of the water and, therefore, there arise no question of new water course. It is further contended that the construction of Pucca Khala is in the larger interest of the agriculturists irrigating their filed and such construction does not fall within the scope of Rule 11(2) of the Rules of 1955 and therefore, even the notice as envisaged under Sub-rule (3) of Rule 11 of the Rules of 1955 is not required to be issued for construction of such pucca khala and before construction of Pucca Khala on area being in command area, project report ascertaining technical feasibility has been prepared by competent authority on the basis of technical advise of expert. It is further submitted that there is no change/ reduction in existing Moga and, therefore, the provisions of Rule 11 (2) of the Rules of 1955 are not applicable. It is also submitted that for the very cause, the near relative of the petitioner filed a civil suit involving similar controversy and raising the similar contention before the Civil Judge (Senior Division), Nohar in which an interim order was passed on 7th February, 2007 in favour of the petitioners therein. However, on appeal filed by the respondents State before the Additional District Judge, Nohar, the interim order came to be vacated by order dated 21st August, 2007 and that order came to be challenged before this Court by way of filing 4 writ petition being S.B.C.Writ Petition No. 5908/2007 which came to be dismissed on 17.09.2007 and since the civil suit for the very cause is pending before the competent court, therefore, the writ petition is not maintainable. Learned Deputy Government Counsel further submits that the decision of the Superintending Engineer sanctioning construction of Pucca Khala will be in the larger interest of the agriculturists of the area facilitating better irrigation facilities and the respondents being the expert bodies in the field has rightly sanctioned the construction of Pucca Khala. Learned Additional Government Counsel has relied on decisions of this Court in Shiv Lal Vs. State of Rajasthan, 1976 WLN 485 and in Jarnel Singh & Anr. Vs. State of Rajasthan & Ors., 1992(1) RLR 264. I have given my thoughtful consideration to the submissions made by learned counsel for the parties. Carefully gone through the material available on record. In Indraj Vs. Executive Engineer (supra), this Court held that for construction of new water course, only the Collector who is the competent Authority to deal with the application and pass a final order thereon. While considering the provisions of Rule 22 and 23 of the Rules of 1955, whether notice is to be general or to be addressed to individual interested person, this Court held that these provisions 5 provide only for publication of notice in every village and publication does not envisage or contemplate individual notice. In Amar Singh Vs. State of Raj. & Ors. (supra), this Court while considering the provision of Rule 11(3) held that no order introducing material change in the out-let could be passed without an opportunity of hearing to the person effected. This Court in that case observed as under:-. “Material change in the out-let has been introduced without affording an opportunity of being heard to the petitioners while under the Statutory Rules as well as under principles of natural justice, the 0petitioners are entitled to have notice about material alteration in the out- let and no order introducing material change in the out-let could be passed without affording an opportunity of hearing to the petitioners.” In Shiv Lal Vs. State of Rajasthan (supra), this Court held that the decision of the Superintending Engineer as to whether there sanctioning a new water course will be for the benefit of respondents 5 and 6, is a matter which is within his jurisdiction under the Rajasthan Irrigation and Drainage Act and this Court does not possess the specialist's knowledge of the Irrigations Engineers so as to be able to say as to and in what particular manner or through which water course 6 should the water be supplied to lands of various cultivators. This view has been reiterated by a Division Bench of this Court in Jarnel Singh & Anr. Vs. State of Rajasthan & Ors. (supra), wherein, while considering the scope of interference under Article 227 in the matters requiring specialised knowledge about functioning of irrigation system, the Division Bench held that the opinion of experts in the field is to be ordinarily accepted to be correct in the absence of any allegation of malafide. In the instant case, firstly, the area in question having become command area, the construction of Pucca Khala is sought to be made, since before this, it was only a Kucha Khala and the existing irrigation system was through Kucha Khala and for the construction of Pucca Khala the project report has already been prepared and obtained ascertaining the technical feasibility on the basis of technical advise and expert opinion before construction of Pucca Khala. The petitioner's case is with regard to Chak NO.5 KNN Murabba No.344/ 371 and 344/372. For very chak number and Murabba number, a civil suit was filed by Pemaram, Munshiram, Niranram and Bhagwanram in respect of Murabba No. 344/371, 344/372, 343/371, 343/372 etc. seeking to 7 restrain the respondents from constructing the Pucca Khala and in that suit on an application for temporary injunction, the interim order was passed by the Civil Judge, Sr. Division, Nohar. However, on an appeal before the Additional District Judge, Nohar, the same came to be set aside and interim order was vacated, against which, a writ petition was filed by co-cultivators before this Court being SBCW No.5908/07 which came to be dismissed by this Court on 17.09.2007. Even otherwise, the construction of Pucca Khala is in the larger interest of various cultivators of the area and such a construction of Pucca Khala has been undertaken in order to provide better irrigation facilities on minimum costs after having taken the approval of Chak Scheme by the competent authority by letter dated 14.02.2006 (Annex.R/1). The orders Annex.R/2 and Annex.R/3 are the orders of the Civil Courts in respect of very Murabba numbers in question and the construction of Pucca Khala is as per the approved sanctioned plan Annex.R/4. So far as the land of the petitioner is concerned, it does not fall between the water course except LAT-2 in Murabba No.344/371 at Killa No. 23 and 24 and the construction of Pucca Khala is for providing better irrigation facilities to the cultivators of the area with maintaining equilibrium in distribution of water with minimum costs and to 8 stop unnecessary pilferage of the water and for construction of such Pucca Khala it cannot be left at the choice of the petitioner alone and the larger interest of the cultivators has to be kept in view, therefore, in my view, the construction of Pucca Khala is in the larger interest of the cultivators and the respondent department for better supply of water to the more and more persons. The decisions relied on by learned counsel for the petitioner turn on their own facts. The construction of Pucca Khala, in my view, would not amount to material change in the outlet warranting any opportunity of hearing before constructing the Pucca Khala on the area having become command area and therefore, neither there is violation of any of the provisions of the Irrigation and Drainage Act nor the Rule 11 (2) of the Irrigation and Drainage Rules, 1955. Keeping in view the two decision of this Court in Shiv Lal Vs. State of Rajasthan and Jarnel Singh & Anr. Vs. State of Rajasthan (supra) wherein it has been held that the Executive Engineer and Superintending Engineer in the Irrigation Department is expert bodies and their opinion on such matters does not require any interference. Hence, no interference is called for. In this view of the matter, I do not find any merit in the writ petition and the same is, therefore, dismissed. Ad 9 interim stay order dated 24th September, 2007 is vacated. Stay petition stands dismissed. The respondents are to proceed with the construction of Pucca Khala as per project report. No order as to costs. (H.R.PANWAR), J. NK 10 S.B.CIVIL MISC.STAY APPLICATION NO.5197/2007 IN S.B.CIVIL WRIT PETITION NO.6183/2007 Date of Order : : 21/10/2008 HON'BLE MR.JUSTICE H.R.PANWAR Mr.J.L.Purohit, for the petitioner. Mr.Deepak Choudhary,Dy.Govt.Counsel for the respondents. Mr.Vijay Jain, counsel for the intervener. Since the writ petition itself has been dismissed, the stay petition also stands dismissed. Ad interim stay order dated 24th September, 2007 is vacated. (H.R.PANWAR), J. NK