1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: O R D E R :: S.B. CIVIL WRIT PETITION NO.1254/2008 Nanda Ram & Ors. Vs. State of Rajasthan & Ors. DATE OF ORDER :: 04-04-2008 HON'BLE MR. MUNISHWAR NATH BHANDARI,J. Mr. B.S. Sandhu, for the petitioner. Mr. C.S. Kotwani, for respondent no.4. Mr. Vivek Shrimali,for respondent nos.1 to 3. This writ petition is directed against the order dated 8.2.2008 passed by the Superintending Engineer in Appeal No.140/2007. Learned counsel for the petitioner submits that though in the appeal preferred by the private respondent, there was no prayer or allegation in regard to his land, yet a direction has been given for reconstitution and transfer of Murraba No.28 in Chak 43. It is contended that such a direction should not have been passed in absence of prayer. It is further contended that even otherwise Superintending Engineer was not competent to pass order of shifting, inasmuch as such competence lies with the Executive Engineer only. 2 In view of the order passed by the Appellate Authority, the petitioner will not get irrigation water in his land and thereby the order deserves to be set aside with a direction to remand the matter entirely to the Executive Engineer as otherwise has been done in respect of other matters decided by the same order. Learned counsel for the State submits that precisely pursuant to the request made by the petitioner vide Annexure-R-4/49 filed along with reply that necessary order was passed in appeal and otherwise the shifting is within the competence of the Appellate Authority exercising the powers in continuance to the order passed by the original competent authority. Hence, in view of the above, the competence of the Superintending Engineer subsists and the challenge to the order on that ground is not sustainable. Learned counsel for the private respondent supports the contention raised by the learned counsel for the State. I have considered the rival submissions of the parties and perused the record. During the course of argument, learned counsel appearing for the State was asked by this 3 Court as to whether the petitioner as well as non- petitioner would get the water if the arrangement as has been made in the impugned order is allowed to continue. Learned counsel submits that the petitioner as well as private respondent would get water even if the order impugned is allowed to stand and it has further been submitted that if any of the parties face difficulty in getting the water with the change as otherwise permitted by the impugned order, they may be permitted to make a representation to the Executive Engineer, who would then after necessary enquiry take up the matter so that any of the party deprived to get the water may get necessary redressal and in that case, protecting the right of one of the parties in getting water pursuant to the impugned order, an endeavor would be made to make an arrangement so that all concerned may get water and for that purpose, they may be given liberty to pass an order which may be slightly in deviation to the order under challenge. Learned counsel for the private respondent seriously opposed this arrangement, inasmuch as if new arrangement is permitted, then non-petitioner may again suffer by not getting the water. Thus, the contention of the learned counsel for the private respondent is that if the petitioner does not get water pursuant to the impugned order and if any other order is to be passed, it should be made in such a manner which may not effect the right of the non- 4 petitioner. Learned counsel for the petitioner submits that so far as petitioner is concerned, he is primarily concerned with the issue of getting water for his land and thus, prays that with the change arrangement, if petitioner suffers in any manner, the Executive Engineer should be directed to look into the matter and make necessary arrangements so that petitioner may get the water for irrigation. In view of the above, the direction prays in the writ petition comes in a narrow compass, inasmuch as for the present, the arrangement made pursuant to the impugned order is allowed to be taken up but in case it is found that with the arrangement made in the impugned order, petitioner does not get water for irrigation, then he would be at liberty to immediately represent the matter to the Executive Engineer and in that case, the Executive Engineer would take up the matter and after hearing the petitioner including the non-petitioner pass such order which may provide irrigation water to the petitioner as well as others. With the aforesaid direction, the writ petition is disposed of. [Munishwar Nath Bhandari],J. Praveen