1 SBCWP No.4689/08 & 16 others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R 1. S.B.CIVIL WRIT PETITION NO.4689/2008 Sahi Ram & Ors Vs. State of Rajasthan & Ors. 2. S.B.CIVIL WRIT PETITION NO.4692/2008 Mst. Jetto Vs. State of Rajasthan & Ors. 3. S.B.CIVIL WRIT PETITION NO.4693/2008 LRs of Mitthe Khan Vs. State of Rajasthan & Ors. 4. S.B.CIVIL WRIT PETITION NO.4697/2008 Peeran Khan Vs. State of Rajasthan & Ors. 5. S.B.CIVIL WRIT PETITION NO.4698/2008 Sahi Ram Vs. State of Rajasthan & Ors. 6. S.B.CIVIL WRIT PETITION NO.4699/2008 Devi Singh Vs. State of Rajasthan & Ors. 7. S.B.CIVIL WRIT PETITION NO.4701/2008 Anoopa Ram Vs. State of Rajasthan & Ors. 8. S.B.CIVIL WRIT PETITION NO.4712/2008 Hanuman Singh & Ors. Vs. State of Rajasthan & Ors. 9. S.B.CIVIL WRIT PETITION NO.4714/2008 Girdhari Singh & Ors. Vs. State of Rajasthan & Ors. 10. S.B.CIVIL WRIT PETITION NO.4735/2008 Jasveer Singh Vs. State of Rajasthan & Ors. 11. S.B.CIVIL WRIT PETITION NO.4736/2008 Tehal Singh & Anr. Vs. State of Rajasthan & Ors. 12. S.B.CIVIL WRIT PETITION NO.4737/2008 Fakira Ram Vs. State of Rajasthan & Ors. 13. S.B.CIVIL WRIT PETITION NO.4738/2008 Bhanwar Singh Vs. State of Rajasthan & Ors. 14. S.B.CIVIL WRIT PETITION NO.4971/2008 Karni Singh Vs. State of Rajasthan & Ors. 15. S.B.CIVIL WRIT PETITION NO.4972/2008 Hanuman Singh & Ors. Vs. State of Rajasthan & Ors. 16. S.B.CIVIL WRIT PETITION NO.4973/2008 Prahlad Rai Vs. State of Rajasthan & Ors. 17. S.B.CIVIL WRIT PETITION NO.7629/2008 2 SBCWP No.4689/08 & 16 others Smt.Jasvinder Kaur Vs. State of Rajasthan & Ors. Date of Order :: 14.05.2009 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.Anil Kumar Singh & Vinod Sharma, for the petitioners. Mr.K.R.Saran, Dy.Govt.Counsel for the respondents. BY THE COURT: All these writ petitions involve common question of law and facts and therefore, they are being heard and decided together by this common order. The facts stated in Writ Petition No.4689/2008 are taken as leading case. The facts and circumstances giving rise to the instant writ petitions are that the petitioners claim to be agriculturalists having agricultural land irrigated through Indira Gandhi Nahar Pariyojana (for short “the I.G.N.P.” hereinafter). The fathers of petitioners-Sahi Ram and others were said to be the Khatedars of the land cultivated by the petitioners. The land of petitioner's father came to be divided amongst brothers and entries thereof were accordingly made in revenue record. According to the petitioners, the petitioner's land could be irrigated through syphons so that water facility could be provided for cultivation of the land and therefore, as per 3 SBCWP No.4689/08 & 16 others decision of the Irrigation Authorities, the facility of syphon was ordered to be provided by Chief Engineer, Irrigation Department by order dated 6th September, 1982 Anneuxre-1. However, thereafter, a survey was conducted and initially the syphons were provided free of cost but subsequently, the Government decided to charge the amount for water supply through syphons. The Irrigation Officers subsequently disturbed the water supply for irrigation through syphons. The respondent-Chief Engineer by order dated 26th May, 1990 directed the Irrigation Officer that the irrigation facility through syphons from R.D.No.620 to 1458 may not be disturbed unless alternate irrigation facility is provided by the Government. According to the petitioners, one of the petitioner filed a writ petition before this Court being S.B.Civil Writ Petition No.4431/2006 and there had been an interim order in the said writ petition. However, subsequently the writ petition came to be decided with other writ petitions by a common order vide order dated 27th February, 2007 Annexure-10 directing the petitioners therein to appear before the Executive Engineer and satisfy him individually about the size of the pipe and number of syphones sanctioned and after so satisfying, the concerned cultivator shall be provided the irrigation facility to the extent originally sanctioned, till the otherwise irrigation facility is 4 SBCWP No.4689/08 & 16 others provided by the respondent therein. The respondent-Executive Engineer came with a case that since the petitioners are having Gair Khatedari land which is not a command area, therefore, no water facility could be provided to the petitioners. By order dated 3rd May, 2008 Annexure-14, the Executive Engineer passed an order to remove the illegal and unauthorised syphons. Aggrieved by the order Annexure-14, the petitioners have filed these writ petitions. A reply to the writ petition has been field by the respondent-State stating therein that so far as the present petitioners are concerned, they were never granted sanction to install syphons at their field and their claims are unfounded on the assertion that they were provided the irrigation facility through the syphons. Thus, without there being sanction of syphons to their agricultural field, the petitioners have tried to mislead the Court stating that syphons have been sanctioned in their favour. According to the respondent-State, no such order sanctioning the syphons has been passed in favour of the writ petitioners. Even the petitioners were never granted temporary syphons by the competent Authority i.e. Executive Engineer. However, State came with a case that the petitioners are using the additional irrigation facility by illegally and unauthorisedly installing the syphons and causing damage to the main canal 5 SBCWP No.4689/08 & 16 others and therefore, unauthorised syphons were removed by the competent Authority under due process provided under the Rajasthan Irrigation and Drainage Act and Rules. However, in the garb of the stay order passed in writ petitions filed by some of the writ petitioners, the petitioners are continuously using irrigation water by installing illegal and unauthorised syphons causing severe damage to the main canal as also adversely affecting the rights and interests of the cultivators in whose favour the irrigation facility has been provided and fields are situated at the tail end of the canal. It has also been stated by the respondent-State that by order dated 22nd March, 1993 Annexure-R/1, the Secretary to the Government, I.G.N.P. Department, Government of Rajasthan, Jaipur reviewed the decision taken in the year 1982 in respect of the supply of the water from the distributories and Indira Gandhi Canal situated on the right and left side of the command and uncommand area by installation of direct outlets and syphons and set aside the decision taken in the year 1982 and made it clear that in future, no sanction from Indira Gandhi Canal and its distributories either by direct outlets or syphons be granted and wherever the outlets have been sanctioned by the competent Authority from main canal and distributories in order to continue the irrigation facility, a parallel or Ditch Channel for 6 SBCWP No.4689/08 & 16 others alternative arrangement be made so that direct outlet can be removed and if there are no parallel or ditch channel then direct outlets be made short so that water supply be made available to the command area. It is further made clear that no water supply be made to uncommand area. By order Annexure-R/2 dated 24th May, 2006, the Superintending Engineer, Second Phase, Circle-I, I.G.N.P. Bikaner cancelled the temporary sanctions to install syphons with the view that the second phase of I.G.N.P. has been developed, and water supply has been demanded by the agriculturists of Jaisalmer and Barmer and therefore, unauthorised irrigation is not feasible, as such, the sanctions for installation of syphons granted earlier came to be cancelled. So far as the present petitioners are concerned, the State came with a case that there had not been any sanction in favour of the petitioners to install syphons and therefore, they are not entitled to irrigate the land by installing the syphons. The state also came with a case that during the period i.e. year 1982 to 1993, the petitioners had not moved any application for sanction of irrigation facility through syphon and without there being any sanction, they have installed syphons at their field unauthorizedly and therefore, Superintending Engineer was justified in ordering for removal of unauthorised syphons vide 7 SBCWP No.4689/08 & 16 others Annexure-R/2 dated 24th May, 2006. Lastly, it is submitted by the respondent-State that since the petitioners never moved any application for grant of irrigation facilities through syphons throughout the period from 1982 to 1983 nor the petitioners were ever granted sanction to install syphons to irrigate their fields and have made an effort to take water by installing illegal and unauthorised syphons causing severe damage to the main canal, therefore, the same have been subsequently removed by the competent Authorities by order dated 3.5.2008 Annexure-14. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioners that though there is no specific sanction in favour of the petitioners but the fact is that the petitioners are agriculturalists and they have been taking water from the main canal by installation of syphons and have been irrigating their field for last many years. The petitioners failed to place on record any sanction showing that they had ever been permitted to take the water by installation of syphons. In another bunch of writ petitions, the petitioners therein came with a case that syphons have been sanctioned in respect of the petitioners therein and only the refusal was to extension of syphons but so far as the present petitioners are concerned, 8 SBCWP No.4689/08 & 16 others according to learned counsel for the parties, there were no specific sanctions for installation of syphons. Learned Deputy Government Counsel appearing for the respondent-State submits that syphons have been illegally installed by the present petitioners which have been removed long back since the land held by the petitioners are Gair Khatedari and uncommand land. From the perusal of the various documents placed on record by both the parties, one thing emerges that so far as the present petitioners are concerned, there had not been any sanction by the State for installation of syphon as also taking the water by such syphon to irrigate the land. Also there is nothing on record which may show that the land which is said to have been possessed by the petitioners is Khatedari land. On the contrary, as averred by the respondent-State, the land which is possessed by the petitioners, is Gair Khatedari and uncommand land. It is settled that irrigation facility is only provided to the land which is command area and to the uncommand area, no irrigation facility is provided by the respondent Irrigation Department. Indisputably, the syphons unathorisedly installed by the petitioners came to be removed long back and presently, no water supply has been provided to the petitioner even temporarily by the respondents. 9 SBCWP No.4689/08 & 16 others Keeping in view the fact that land possessed by the petitioners is not Khatedari one and the fact that there had not been any sanction by the State for installation of syphon so far as the present petitioners are concerned, and further in absence of any sanction, in my view, the petitioners are not entitled to install syphons for irrigating their lands and therefore, the respondents were justified even in not sanctioning the syphons which came to be removed long back. At any rate, presently there are no syphons installed by the petitioners at the site. In the circumstances, therefore, in my view, the petitioners are not entitled for any relief prayed for. The irrigation facilities can only be extended to the agriculturalists as per the provisions of the Irrigation and Drainage Act and Rules, 1954 and 1955 respectively. In this view of the matter, I do not find any merit in these writ petitions and the same are, therefore, dismissed. Stay petitions also stands dismissed. (H.R. PANWAR), J. NK