1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Manohar Lal Vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO.7609/2007 Date of Order : : 05/09/2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.Trilok Joshi, for the petitioner. Mr.Arjun Singh Rathore, Dy.Govt.Counsel for the State. Mr.Sandeep Shah, for the private respondent. BY THE COURT: By the instant writ petition under Article 227 of the Constitution of India, the petitioner seeks quashing of the orders Annexure-4 dated 24th September, 2007 and Annexure- 5 dated 29th October, 2007 passed by respondent No.2 Executive Engineer and respondent No.1 Superintending Engineer respectively. I have heard learned counsel for the parties. Carefully gone through the record. It is contended by learned counsel for the 2 petitioner that the petitioner has not violated any of the terms and conditions of the supply of water turn and the order impugned has been made because of the some of the villagers of Chak No.16 KWD had a grudge against the petitioner's water turn from Chak No.28 DWD to Chak No.16 KWD. It is further contended that by the order impugned, the petitioner has been deprived of irrigating his field. Learned Deputy Government Counsel as also Counsel appearing for the private respondents submit that the petitioner has made an effort to take water from Johad and Diggi without there being any turn of supply of water. I have carefully gone through the order passed by Executive Engineer and also Superintending Engineer on an appeal. It appears that the various agriculturalists of Chak No.16 KWD through the Sarpanch of Gram Panchayat 15-16 KWD filed a complaint against the petitioner and his father that water turn from Johad and Diggi has been diverted by the petitioner taking water without there being any turn of water supply to the field of the petitioner. By communication dated 29th July, 2007, the Ziledar of the area was asked to submit a report. The Ziledar has inspected the sight with Patwari of the area and noticed that various Killa and Murabba numbers mentioned in order dated 24.9.2007 Annexure-4 measuring 3 6.65 bigha has been irrigated by the petitioner by cultivating the crop of Narama (Cotton). It is contended by learned counsel for the petitioner that for the said Chak i.e. 16 KWD, the respondents had sanctioned the water turn in favour of Richpal and Sohan Lal, both sons of Girdhari. The duration of water turn in favour of Sohan Lal to irrigate 11 bighas of land is 2.01 hours and in favour of Richpal to irrigate 16 bighas of land is 2.25 hours and the date of turn is Thursday i.e. 19-23 hours to 23-49 hours. Thereafter, for two hours, there is a water turn to Diggi and according to learned counsel for the petitioner, since there is a water turn in favour of the petitioner's father Richpal, therefore, according to the sanction, the petitioner irrigated his land and as such, he has not violated any of the terms and conditions of the sanctioned water turn as also did not disturb the water turn to the Diggi. It appears from the order passed by the respondent Superintending Engineer Annexure-5 that some of the witnesses stated that on intervening night of 26th and 27th of July, 2007, the petitioner was found irrigating his field. However, on close scrutiny of the statements of the witnesses discussed by the Executive Engineer, it appears that witness like Bhanwar Singh stated that he heard some of the persons talking about irrigating the filed. The other witness Banshi Lal 4 also does not say that the petitioner was found irrigating the land. The witness Jai Narayan also does not state that it was the petitioner who was taking water against the turn of Diggi. He only stated that he had seen water being taken towards Johad. If the water was taken towards Johad then there could be no violation of water turn since according to private respondents, there was 2 hours water turn and during that period the water was taken to the Johad and Diggi. It is only on the assumption and showing on some of the persons that the water has not reached to Johad. The witnesses Krishna, Satpal, Mahavir have stated that on the intervening night of 26th and 27th July, 2007 at midnight, the petitioner had a water turn between 19:23 hours to 21:24 hours and thereafter, at about 23:47 hours, the water was left to Johad. Thus, from the statements of these witnesses, it appears that the petitioner irrigated his filed by taking water as per sanctioned water turn and thereafter, allowed the water to Johad. The respondent Superintending Engineer also observed that on the intervening night of 26th and 27th July, 2007, the water to the Johad was allowed but it was not sufficient. Be that as it may, at any rate, it has not been disputed that on the date and relevant time, there was a water turn sanctioned in favour of the petitioner's father as also in favour of Sohan 5 Lal for irrigating the land measuring 11 bighas and 16 bighas respectively i.e. total 27 bighas for a duration of 4 hours and 26 minutes and the fact that water reached to the Johad/Diggi. Whether it was sufficient in quantity or not cannot be a ground to say that the petitioner has violated any of the terms and conditions of the sanctioned water turn and therefore, in my view, the order impugned Anneuxre-4 and 5 passed by the respondents No.2 and 1 respectively cannot sustain and liable to be quashed. Consequently, the writ petition is allowed. The orders impugned Annexure-4 and 5 dated 24th September, 2007 and 29th October, 2007 respectively passed by Executive Engineer and Superintending Engineer respectively are set aside. There shall be no order as to costs. (H.R.PANWAR), J. NK 6 S.B.CIVIL MISC.STAY APPLICATION NO.7449/200 IN S.B.CIVIL WRIT PETITION NO.7609/2007 Date of Order : : 05/09/2008 HON'BLE MR.JUSTICE H.R.PANWAR Mr.Trilok Joshi, for the petitioner. Mr.Arjun Singh Rathore, Dy.Govt.Counsel for the State. Mr.Sandeep Shah, for the private respondent. Since the writ petition itself has been allowed, the stay petition stands disposed of. (H.R.PANWAR), J. NK