1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT ::: 1. S.B. Civil Writ Petition No.746/2009. Jawana Ram. vs. State of Raj. and others. 2. S.B. Civil Writ Petition No.1229/2009. Joginder Singh. vs. State of Raj. and others. Date : 10.5.2010 HON'BLE MR. PRAKASH TATIA, J. Mr.SL Jain, for petitioner in SBCWP No.746/2009. Mr.BS Sandhu, for the petitioner in SBCWP No.1229/2009. Mr.LK Purohit ) for the respondents. Mr.Ramandeep Singh ) - - - - - BY THE COURT : REPORTABLE Heard learned counsel for the parties. The petitioner is challenging the orders passed by the Superintending Engineer dated 7.1.2009. The dispute has a chequered history as the dispute was raised in the year 1987 and several orders were passed by the competent authorities under the provisions of Rajasthan Irrigation and 2 Drainage Act, 1954 (for short 'the Act of 1954'). Ultimately, the petitioners of both these writ petitions approached the Civil Court by filing civil suits and submitted applications for grant of injunction which were dismissed by the trial court and thereafter, appeals too were dismissed. Thereafter, a writ petition was preferred before this Court which was dismissed vide order dated 20.9.2006 after taking note of the fact that 90% of the work in question has been completed and only 5% is only pending. In the trial court, it was specifically pleaded that it is a public importance issue of opening of water facility. Be it as it may be, Iqbal Singh and others preferred SBCWP No.2715/2008 before this Court against the order dated 17.3.2008 passed by the Superintending Engineer, Suratgarh. The coordinate bench of this Court after hearing the parties vide order dated 19.9.2008 set aside the order dated 17.3.2008 and directed the respondent no.3 – Superintending Engineer, Suratgarh to decide the matters afresh. The Superintending Engineer concerned then passed the impugned order dated 7.1.2009. The petitioner has challenged the order dated 7.1.2009 on various grounds and according to learned counsel for the petitioner, the Superintending Engineer had no jurisdiction to pass the order as has been passed because of plain and simple reason that under the provisions of the Act of 1954, it is mandatory to follow the 3 procedure prescribed under Sections 22, 24 and 25 of the Act of 1954. It is also submitted that the Irrigation Officer or the Superintending Engineer has no jurisdiction to pass the order and the order, of the nature which has been passed by the Superintending Engineer, can be passed only by the District Collector. It is also submitted that the mandatory notices have not been issued and, therefore, also, the impugned orders are illegal. Learned counsel for the petitioner also vehemently submitted that earlier recommendations sent by the Superintending Engineer have been ignored and contrary to those recommendations, the impugned orders were passed. Learned counsel for the petitioner relied upon the judgment of this Court delivered in the case of Indar Raj vs. Executive Engineer reported in 1986 RLW 392 wherein the issue has been considered in detail about the effect of Sections 22, 24 and 25 of the Act of 1954. Learned counsel for the petitioner also submitted that the irrigation authorities have no power to review the order as has been held by this Court in the case of Tehal Singh vs. State & Ors. reported in 2001(2) RRT 824. Learned counsel for the respondents vehemently submitted that the petitioner suppressed important material facts from this Court of his filing civil suits wherein the injunction applications were 4 rejected for the same relief about the irrigation facility and dismissal of their writ petition by this Court against that order of rejection of injunction application. The petitioner has further suppressed the fact that the counter suit has been filed by the respondents wherein injunction has been granted. It is further submitted that it is true that by order 5.3.2008 (17.3.2008), the matter was remanded by the Superintending Engineer to the Executive Engineer but at the same time, when the matter came up before this Court in SBCWP No.2715/2008, this Court directed the Superintending Engineer to examine all earlier orders passed and decide the matter afresh, then the Superintending Engineer when since seized with the matter, then he alone could have decided the dispute. I considered the submissions of learned counsel for the parties and perused the facts of the case as well as the bulky record. It is not in dispute rather say it is clear from the legal position that the provisions of Sections 22, 24 and 25 of the Act of 1954 are required to be followed for taking a decision. The question which has been raised by learned counsel for the petitioner is that who can pass the final order for construction of new water course. Learned counsel for the petitioner submitted that 5 in view of Section 24, the final order can be passed only by the District Collector and not by the irrigation authorities. Learned counsel for the petitioner appears to have missed to take note of Section 22 which says that it will be the duty of the Divisional Irrigation Officer to find out whether the construction of demanded water course is expedient and the statement made in the application is true or not. The Divisional Irrigation Officer is required to consider all the technical matters and he is required to make enquiry into the issue which is the most suitable alignment for the demanded water course and he is also required to mark out the land which in his opinion will be necessary to occupy for construction thereof. Then, it is the duty of the Divisional Irrigation Officer to give notice in every village through which the water course is proposed to be taken as well as to disclose so much land of such village has been so marked out. Therefore, so far as technical matter is concerned, it is the duty of the Divisional Irrigation Officer i.e. of the Executive Engineer. If anybody has any objection against the said opinion of the Irrigation Officer, the objection can be filed before the Collector under Section 24 and the Collector is required to consider and pass appropriate order rejecting the objection or accepting the objection and not only this but if there is a disagreement between the Collector and 6 the Irrigation Officer, then as per Section 27, the matter is required to be referred to the Revenue Appellate Authority for decision and that decision becomes final. Therefore, so far as technical decision is concerned, that is required to be taken initially and firstly by the Executive Engineer and not by the Collector straightaway. Be it as it may be, in the present writ petitions, the order passed by the Irrigation Officer is under challenged. At this juncture, it will be appropriate to mention that the petitioner's another contention is that the Superintending Engineer had no jurisdiction to pass the order and only the Divisional Irrigation Officer who is Executive Engineer alone could have passed the order. At this place, it appears that the petitioner himself misunderstood by the terminology only. The Executive Engineer is the original authority and the Superintending Engineer is the appellate authority. The appellate authority possesses all the powers of the original authority, therefore, the order passed by the appellate authority is a valid order having all the force as the order which can be passed by the Executive Engineer, can be passed by the appellate authority if the matter has reached to the appellate authority by way of appeal or by order of remand. In the present matter, since the matter was remanded to the Superintending Engineer by the order of this Court dated 19.9.2008 in SBCWP 7 No.2715/2008 and that order is final, then the petitioner cannot challenge the jurisdiction of the Superintending Engineer in which this Court otherwise found the jurisdiction as the Superintending Engineer is the appellate authority over the Executive Engineer's order. Learned counsel for the petitioner also relied upon the judgment delivered in the case of Tehal Singh (supra) wherein it has been held that the revenue authorities have no jurisdiction to review their orders. So far as this legal position is concerned, there is no quarrel. However, this is a misplaced argument because of the simple reason that there is no order which has been reviewed by the irrigation authority. The argument of the petitioner is that there is an order of remand passed by the Superintending Engineer on earlier occasion and ignoring that order, the Superintending Engineer himself has passed the order. It is true that the Superintending Engineer remanded the matter to the Executive Engineer by one order but thereafter, when the matter came up before this Court, this Court passed the order on 19.9.2008 and that order was passed after hearing both the parties, therefore, when for the same issue if the matter was remanded by the Superintending Engineer to the Executive Engineer and this Court thereafter passed the order directing the Superintending Engineer himself to decide the matter, the Executive Engineer could 8 not have decided the matter though it was remanded by a separate and independent order. Therefore, I do not find any force in the submission of learned counsel for the petitioner that when the order dated 25.9.2006 has not been challenged by anybody, then the Superintending Engineer had no jurisdiction to pass the order as has been done. This Court is also of the view that in a matter where technical issues are involved and questions of facts are more dominant and when the Act itself specifically provides that the orders will be subject to the decision of the civil court, then ordinarily remedy is by way of filing suit and not by approaching High Court straightaway. In the Act of 1954, Section 52 has been specifically enacted so as to make clear that the civil court shall have jurisdiction to decide anything done under this Act. Learned counsel for the petitioner in SBCWP No.1229/2009 tried to submit that Section 52 has application only when there are “claims” against the State Government and claims means only claims of compensation in the cases where any land is taken/acquired by the State or crop is damaged by the act of State and, therefore, Section 52 has no application to the orders passed by the irrigation authorities under the Act of 1954. The argument advanced cannot be accepted as a 9 correct interpretation of Section 52. While enacting Section 52, the Legislature was conscious that the decision given by the Irrigation Officers under the Act of 1954 may have civil consequences which can be decided only on the basis of evidence and after determining the questions of facts, therefore, Section 52 has been specifically incorporated so that the parties may lead evidence of even expert about various technical aspects of irrigation in rebuttal to the report given by the technical persons under the Act of 1954 because the person who decides the matter about water flow and alignments under the Act of 1954 are the Engineers and their opinion can be rebutted by the expert opinion. Ordinarily the suit is not an alternate remedy to writ petition but at the same time, the writ petition is not an alternate remedy to suit. It is to be decided according to the facts of the case whether it is a fit case to entertain the writ petition as there may be violation of principles of natural justice or violation of rights resulting into gross injustice and other rights which in view of the judgments of the Hon'ble Apex Court permits entertaining of writ petitions by the High Courts inspite of having an alternate remedy. Here in this case, since both the parties have approached the civil court, then there was no reason for the parties to invoke the jurisdiction under Article 226 of the Constitution of India. 10 Learned counsel for the petitioner in the case of Jawana Ram (SBCWP No.746/2009) submitted that the order dated 5.3.2008 (17.3.2008), copy of which is placed on record as Annex.3, was not challenged by the respondents and, therefore, that order became final. It is also submitted that in SBCWP No.2715/2008, Jawana Ram was not a party and, therefore, the order dated 5.3.2008 (17.3.2008) attained finality. It appears from the order of the Superintending Engineer dated 7.1.2009 that Jawana Ram was also party along with Joginder Singh and the order passed in favour of Joginder Singh verbatim same was challenged in SBCWP No.2715/2008 and therein this Court passed the order. It is true that Jawana Ram was not party in writ petition no.2715/2008 but at the same time, Jawana Ram appeared before the Superintending Engineer obviously in the light of the directions given by this Court. If the petitioner was aggrieved against this order on the ground that he was not impleaded as party or effect of the order dated 19.9.2008 will be adverse to the rights of the petitioner or against the order Annex.9, then he should have moved to the High Court for recalling the order dated 19.9.2008 or could have preferred appeal after obtaining the leave of the High Court to challenge the order dated 19.9.2008. After complying with the directions of this Court in the 11 case where Jawana Ram was not party, he had no right to raise this objection because of the plain and simple reason that if the petitioner would have succeeded before the Superintending Engineer he would not have challenged any direction of this Court in order dated 19.9.2008. It is settled law that a party who took chance of failure and success, then after taking chance, he is precluded from attacking the said action. In view of the above reasons, both these writ petitions are dismissed on the ground of suppression of important material facts by the petitioners as well as in view of the fact that the injunction order has already been refused to the petitioners by the civil court and the civil suits of the petitioners have already been been dismissed and against which appeals are pending and the civil suit by the respondents is pending wherein if law permits, the parties may proceed and get final adjudication so that final decision can be given instead of passing orders here and there repeatedly and again and again. (PRAKASH TATIA), J. S.Phophaliya