1 BALKARAN SINGH & ANR. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 8225/09) Dated:- 8 .12.09. HON'BLE MR.JUSTICE SANGEET LODHA Mr. B.S.Sandhu, for the petitioners. Mr. L.K. Purohit, Additional Government Counsel. Mr. V.K.Agarwal, for respondent no. 4. Mr. Sanjeet Purohit for respondent nos. 5 to 7. 1. This writ petition is directed against order dated 24.7.09 passed by the Superintending Engineer, Water Resources Circle, Sri Ganganagar whereby an appeal preferred by the respondent nos. 5 to 7 against the order dated 13.7.09 of the Executive Officer, Water Resources, South Division, Sri Ganganagar has been allowed and the matter has been remanded to the Executive Engineer to check the tail gauge of RB minor running through Chak 8 RB and pass an appropriate order afresh after giving an opportunity of hearing to the parties. The petitioners have sought further direction to the respondent no. 3 to install the extra pipe outlet for sugarcane fields of the petitioners in Chak 8 RB in terms of order dated 14.6.09(Annex.9) and to fix the water turn accordingly. 2. The petitioners are sugarcane growers who supply the sugarcane to the Ganganagar Sugar Mill Limited( “Sugar Mill”) which is engaged in manufacture of sugar and country liquor. The State Government has reserved 50 cusecs of water from 2 the Gang canal for cultivation of sugarcane. The petitioners and their likes who are engaged in growing sugarcane are supplied water according to the norms laid down out of the water kept at the disposal of the Sugar Mill. As per the procedure laid down, the farmers engaged in cultivation of sugarcane submit their forms for allotment of extra water for a period of one year . After due enquiry, the Sugar Mill makes the recommendation to the Department of Irrigation for allotment of the extra water. The Department of Irrigation in its turn after satisfying itself with regard to the eligibility of the agriculturist supplies the water by putting extra pipe near the outlet. The size of the pipe is fixed on the basis of the total area on which sugarcane is cropped. 3. The petitioners used to cultivate sugarcane in their 64 bighas of land and the water was being supplied to them accordingly. However, on account of report submitted by Patwari, in the year 2008-09 vide order dated 3.10.08, extra pipe installed for supply of the water to the petitioners' sugarcane fields were ordered to be removed. Aggrieved thereby, the petitioners preferred a writ petition( No. 9307/08) which was disposed of by this court vide order dated 12.1.09 giving opportunity to the petitioners to approach the Sugar Mill. It was directed that Sugar Mill after ascertaining the correct position with regard to production of the sugarcane by the petitioners may instruct the Irrigation authorities to supply the 3 water to agriculture fields of the petitioners for sugarcane crop out of the 50 cusecs water kept reserved by the State Government for the Sugar Mill . 4. In pursuance of the directions of this court, the matter with regard to the supply of the water to the petitioners sugarcane fields was considered by the Coordination Committee of the Sugar Mill and after survey conducted it was found that petitioners' 62 bighas and 12 biswas of land was under the cultivation of sugarcane and accordingly, vide communication dated 21.4.09,the recommendations were made by the Sugar Mill to the authorities of the Irrigation Department to allow the additional water supply for the petitioners' agriculture fields. After recommendations being made by Sugar Mill as aforesaid, the Executive Engineer again got the inspection conducted from the Junior Engineer vide order dated 16.6.09 wherein it was confirmed that the petitioners' 62 bighas and 12 biwas of land is under sugarcane cultivation. Accordingly, order dated 14.7.09 was issued by the Executive Officer, directing installation of extra pipe outlet of 3 inches. However, aggrieved thereby certain persons of Chak No.46 RB(B) & 10 RB(B) preferred an appeal before Superintending Engineer stating that if the extra water supply is allowed to the petitioners' chak then the water at the tail of the canal shall stand reduced. The Superintending Engineer after hearing both the parties vide order dated 24.7.09 4 has remanded the matter to the Executive Engineer as aforesaid . Hence, this petition. 5. It is submitted by the learned counsel for the petitioners that this court while deciding the earlier writ petition preferred by the petitioners had directed the Sugar Mill to consider the claim of the petitioners for supply of the water to their sugarcane fields and direct the Irrigation authorities to allow the additional water supply out of 50 cusecs water reserved by the State Government for Sugar Mill. Therefore, after recommendation of the Coordination Committee of Sugar Mill , the respondents were under an obligation to take appropriate measures for supply of the water to the petitioners' 62 bighas and 12 biswas land which is under cultivation of sugarcane. The learned counsel submitted that the State Government has sanctioned 50 cusecs of water to Sugar Mill, which is distributed to the farmers to grow sugarcane in the Gang canal area, thus, the Irrigation Department is only a distributing agency through which water is distributed by installing extra pipes. The learned counsel submitted that by the supply of the water to the petitioners and their likes out of the water kept reserved for the Sugar Mill , the other cultivators are simply not affected therefore, the respondents agriculturists of Chak 9 RB, 10 RB, 40 RB and 46 RB have no locus standi to question the supply of the water to be made to the petitioners. The learned counsel submitted that the 5 respondents agriculturists can only claim the protection to the extent that the Irrigation authorities may not take such steps which may affect or reduce the water supply even in micro level, below the one originally sanctioned in their favour. In this regard, the learned counsel has relied upon a Bench decision of this Court in “Avtar Singh & Ors. vs. State of Rajasthan & Ors.” (D.B.Civil Special Appeal(W) No.273/07 and other connected matters) and a decision of this Court in “Avtar Singh & Ors. vs. State & Ors.(S.B.Civil Writ Petition No. 6225/05). The learned counsel submitted that the respondents agriculturists have no right to interfere with the supply to be made to the petitioners and their likes out of the 50 cusecs water reserved by the State Government in favour of the sugar mill. Accordingly, it is submitted by the learned counsel that the Superintending Engineer has seriously erred in remanding the matter to the Executive Engineer. The learned counsel submitted that the petitioners crops are standing and are at verge of being ruined due to non supply of the water, but the Executive Engineer is neither installing the extra pipe nor taking a decision in pursuance of the remand order passed by the Superintending Engineer. 6. Per contra, the learned counsel appearing on behalf of the respondents no. 5 to 7 submitted that the Superintending Engineer has committed no error in remanding the matter to the 6 Executive Engineer for making factual enquiry, to check the gauge of the RB minor running through the Chak 8 RB and pass a fresh order after giving opportunity of hearing to the parties. The learned counsel submitted that the Chak 8 RB is situated in RB minor and having Chak No. 9 RB , 10 RBA, 10RB(B), 46 RBA and 46 RB(B) on the tail of the said RB minor. It is submitted that the said RB minor is not having much capacity through which extra water for sugarcane can be provided without affecting other chaks situated on the tail. It is submitted by the learned counsel that the capacity of the RB minor touching the Chak 8 RB is only 13.18 cusecs. It is submitted that if the extra pipe for discharge of extra water for sugarcane is established on the said small canal, the land situated on the tail of said minor is bound to be adversely affected . Accordingly, it is submitted that the order impugned passed by the Superintending Engineer remanding the matter to the Executive Engineer does not warrant any interference by this court. 7. Indisputably, the petitioners are entitled to claim supply of extra water to their sugarcane fields out of the 50 cusecs water reserved by the State Government for the Sugar Mill. It is also not in dispute that in pursuance of the directions issued by this court, the Coordination Committee of Sugar Mill has considered the petitioners entitlement for supply of water out of the 50 cusecs reserved and has recommended that the petitioners' 62 7 bighas and 12 biswas land under sugarcane cultivation deserves to be extended extra water supply. It is true that the respondents agriculturists also cannot be made to suffer on account of the putting of the extra pipes over the outlet for supply of extra water to the sugarcane fields of the petitioners and their likes. As laid down by this court sub-rule (1) of Rule 11 of Irrigation & Drainage Rules, 1955 casts a duty on the Divisional Irrigation Officer not to authorise outlets on any canal exceeding the authorised or actual canal capacity whichever is less so that on release water may run in the canal from head to tail and the respondents are under an obligation to take the appropriate measures so that the putting of the extra pipes on the outlet may not affect or reduce the water supply to the respondents agriculturists below the one originally sanctioned in their favour. In this view of the matter, the entire matter needs to be examined afresh by the Irrigation authorities and therefore, the order of remand passed by the Superintending Engineer does not warrant any interference by this court. 8. Accordingly, this writ petition is disposed of with the directions to the Executive Engineer,Water Resources, South Division, Sri Ganganagar to take a decision in the matter after taking into account all relevant aspects of the matter. The Executive Engineer shall take the appropriate steps so that the petitioners may get the adequate supply of water for their 8 sugarcane fields from the 50 cusecs water reserved for Sugar Mill and at the same time, the water supply to the respondents agriculturists and their likes is not reduced below the level originally sanctioned in their favour. The parties shall appear before the Executive Engineer on 14.12.09. The appropriate decision after hearing both the parties shall be taken by the Executive Engineer, Water Resources, South Division, Sri Ganganagar within a period of three weeks thereafter. No order as to costs. (SANGEET LODHA),J. Aditya/-