1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Ramswaroop & Ors. Vs. State of Rajasthan and others. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.722/2006 against the order dt.16.10.2006 passed in S.B. Civil Writ Petition No.1286/2006. Date : 20.11.2006 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. B.S. Sandhu for the appellant. Mr. Vijay Bishnoi for the respondents. Mr. L.R. Upadhyay, Dy. Government Advocate. ________ BY THE COURT:- (PER HON'BLE RAJESH BALIA, J.) Heard learned counsel for the parties. The dispute relates to order dated 30th January, 2006 passed by the Superintending Engineer, 2 Rajasthan Jal Shetra Punaha Saranchna Pariyojna, Circle, Hanumangarh in appeal No.13/2005 at the instance of respondent Ramswaroop and others. The contention relates to order passed by Executive Engineer for shifting the outlet for supply of Irrigation Water to the cultivators of Chak No.23 KKN from Stone No.273 to Stone No.274.2. The Superintending Engineer in its earlier order dated 31st October to 2001 had sanctioned to shift the outlet from Stone No.273 to Stone No.274.2 which was subjected to Writ Petition No.4613/2001. The said writ petition was disposed of by this Court on 24.01.2003 while setting aside the order dated 31st October, 2001 passed by Superintending Engineer and remitting the case back to him to hear the parties and other concerned parties, who may be adversely affected by his order and pass an appropriate order in accordance with law. In pursuance of the aforesaid directions, the 3 Executive Engineer vide order dated 1st October, 2005 made an order to maintain the outlet at stone No.273. According the order of the Executive Engineer while the cultivators holding 476 bighas of land wanted to continue the outlet at stone No.273. The holders of 40 bighas of land wanted the outlet to be shifted to around 274.2 and owners of 7 bighas of land had started to two outlets at both points. It was also recorded after considering the command area falling within the realm of two claim of claimants that the holders of 490 bighas of command area did not give any opinion. In these circumstances, amongst others the Executive Engineer opined that since more cultivators are demanding to continue outlet at Stone No.273 and the shifting the outlet is likely to create disputes, allowed the continuance of the outlet at stone No.273. On appeal, this order was set aside by order dated 30th January, 2006. The Superintending Engineer in his order noticed that the Executive Engineer has not made available the original record for consideration 4 regarding the aforesaid application for change of outlet despite multiple reminders and none has appeared on behalf of the respondents. It also noticed the contention of the appellants that the appellants' land is not presently getting irrigation water from stone No.273. Apparently, while in his order the Executive Engineer has considered only the opinion of those whose land fell within the command area and has not considered the claim of the applicants because their land would come in command area if the outlet is shifted to 274.2 which in opinion was a very relevant consideration and ought to have been considered by the authorities. Be that as it may, the finding that the original record is not being made available by the Executive Engineer despite several reminders by his superior authority and the respondents were not present and the order of the Executive Engineer was not found to be in the interest of irrigation, the order was set aside. Now it is common ground between the parties that before passing the order dated 30th Jan., 5 2006, no notice was issued in fact to the respondents in appeal before the Superintending Engineer. In the aforesaid circumstances, we are of the opinion that on admitted position, the order dated 30.1.2006 is not liable to be sustained for this reason alone notwithstanding our prima facie opinion that one of the relevant considerations which affect the interest of irrigation has not been taken into account by the Executive Engineer also. In the circumstances, learned counsel for the parties submit that no purpose would be served by keeping this petition pending here by way of disposing of interim application. The impugned order dated 30th January, 2006 deserves to be quashed and is hereby quashed and the parties are directed to appear before the Superintending Engineer on 1st of February, 2007. No notice will be issued to them now. It will be the responsibility of the respective counsel to inform their respective parties for 6 making representation. It is also impressed upon the Executive Engineer that he should promptly made the original record available to the Superintending Engineer and failure to make original record available immediately to the Superintending Engineer despite these directions will be considered a serious case of in subordination and will also be considered defiance of the orders of the Court. It will be the duty of the learned Government Advocate appearing in this case to inform the Executive Engineer to make the records available to the Superintending Engineer before the date of hearing fixed by the Court. This disposes of the writ petition also. Until appeal is decided by the Superintending Engineer, status quo as exists today shall not be altered. Accordingly, the special appeal as well as the writ petition are disposed of. No order as to costs. 7 [GOPAL KRISHAN VYAS], J. [ RAJESH BALIA ], J. babulal/