1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.2715/2008 (Iqbal Sing & Ors. Vs. State of Raj. & Ors.) Date of order :: 19.9.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr.Ramandeep Singh Sidhu, for the petitioners. Mr.Arjun Singh Rathore, Dy. Govt. Counsel. Heard learned counsel for the parties. It is submitted by learned counsel for the petitioners that the impugned order Annexure- P/12 dated 17th March, 2008 has been passed by the respondent No.3 - Superintending Engineer, Suratgarh upon appeal filed by respondent No.5 – Jogender Singh against the order dated 28th November, 2007 (Annexre-P/11) which is said to be passed by the Executive Engineer, Irrigation Division, Suratgarh whereby certain instructions were given to Jiledar, Irrigation Circle, Suratgarh. 2 The main contention of petitioner is that respondent No.-5 Jogender Singh preferred an appeal earlier against the order dated 16th April, 1987 before the Superintending Engineer, (CAD) Suratgarh. The said appeal was rejected vide order dated 21st May, 1987 which is placed on record as Annexure-P/2. Further it is submitted that a suit was filed with regard to controversy in question before the Civil Judge (Junior Divisoin), Pilibanga, District Hanumangarh by Thakar Singh and Jogendra Singh and alongwith suit an application under Order 39 Rule 1 and 2 CPC was also filed, in which, after considering entire aspect of the matter, the application filed under Order 39 Rule 1 and 2 CPC was rejected. Against that order, an appeal was preferred to the Additional District & Sessions Judge No.1, Hanumangarh by Jogendra Singh & Thakar Singh. The said appeal was rejected by the Additional District and the cross-objections raised by the State were accepted. It is also pointed out by learned counsel for the petitioner that one Javana Ram preferred writ petition before this Court and the said writ petition was registered as S.B.C.W.P.No.4790/2006, 3 in which,the learned Single Judge has passed the following order:- “Heard. Both the courts below have rejected the injunction application. This has been found that only 5% work is incomplete and 95% has already been completed. Both the Courts below have taken note of the fact that technically the water will flow smoothly in the new water canal. The 5% work has not been completed due to resistance of the petitioner then it does not mean that any injunction can be granted in favour of the petitioner. If any claim, or compensation on account of his land coming into or on water canal then, that can be settled by negotiations or otherwise. Both the courts below have not found that any injunction should be granted in favour of the petitioner. This Court also does not think it proper to grant injunction in favour of the petitioner in exercise of writ jurisdiction. No interference is called for. The writ petition is dismissed.” As per learned counsel for the petitioner when an appeal was filed by Jogendra Singh against communication dated 28th November, 2007, then Superintending Engineer, Suratgarh was under an obligation to consider all these aspect of the matter, but the Superintending Engineer, Suratgarh without considering all these judgments in right perspective, passed an order upon appeal filed by 4 Jogendra Singh. In this view of the matter, the order impugned dated 17th March, 2008 passed by respondent No.3 is quashed and the said authority is directed to decide the matter afresh after considering all the aforesaid judgments within a period of three months from the date of filing certified copy of this order. With these observation/direction, this writ petition is disposed of. (GOPAL KRISHAN VYAS), J. A.K. Chouhan/- A.K. Chouhan/-