1. These are two connected special appeals directed against a common order dated Dec. 19, 1978 passed by the learned Single Judge, whereby the petitioner's writ applications registered as S. B. Civil Writ Peti-tions Nos. 858 and 857 of 1978, were dismissed. The dispute between the parties relates to removal and shifting of outlets of water in Chak Nos. 19 N. W. D. and 20 N. W. D. S.B. Civil Writ Petition No. 857 of 1978 was in respect of Chak No. 20 N. W. D. whereas S. B. Civil Writ Petition No. 858 of 1978 was in respect of Chak No. 19 N. W. D.
2. The Divisional Irrigation Officer, Rawatsar, who is also Executive Engineer, Rawatsar (hereinafter referred to as 'D.I. O.'), by his letter dated July 1, 1978 (Ex. 3), submitted his recommendation to the Superintending Irrigation Officer, Hanumangarh Junction, who is also Superintending Engineer (hereinafter referred to as 'Section I. O.'), that the outlet No. 20 N. W. D. may be shifted to stone-line No. 124/10 (running south to north) from stone-line 134/10 (running east to west). As regards outlet No. 19 N. W-D., he recommended that the present outlet position may be kept as it is. On receipt of this recommendation the S. I. O., by his two aeparate orders dated October 26, 1978 (both marked Ex. 2), ordered that the outlet in Chak No. 19 N. W. D. be shifted from stone No. 134/17.8 to stone No. 134/10.5 and outlet No. 20 N. W. D. be shifited from stone No. 134/10 (east-west) to stone No. 134/10.20 (south-north) situate at a distance of 180 feet from the outlet in existence. Aggrieved by the orders of the S. I.O., the petitioner filed writ petitions to this Court on two grounds, namely, (i) that no notice as required under rule 11 (2) of the Rajasthan Irrigation and Drainage 'Rules, 1957 (as amended) (which will hereafter be referred to as 'the Rules of 1957') was given to the petitioner before the impugned order was passed by the S.I.O.; and (ii) that the S. I. O. had no jurisdiction to pass original Order for the change in the outlet. The original order for change of outlet could Have been passed only by the D. I. O. and the S. I. O. had jurisdiction to hear appeal from the original order. Consequently, the order passed by the S. I. O. is ultra vires. Notice 'to show cause why a rule be not issued', was given to the non-petitioners by the learned Single Judge. The non-petitioners opposed the issue of rule and contended, inter alia, that the petitioner had no locus standi to file writ petitions inasmuch as he had no land in chaks in question and that, in any case, the petitioner had not sustained any substantial Injury by change of the outlets.
3. The learned Single Judge held that the petitioner has his land in Chaks in question and therefore, has locus standi to approach this Court. However, on merits he found that the petitioner had sufficient notice of the proposed change in the outlets. As to the second contention raised by the petitioner, the learned Single Judge held that the matter had been first considered by the D. I. O. after ascertaining the views of all the cultivators including the petitioner and his brother, and thereafter he had sent his recommendation to the S. I. O. and that the S. I, O., in his turn, had given a further opportunity to all the cultivators to present their points of view before passing the impugned orders. He held that the recommendation made by the D. I. O. must be taken to the nature of an original order, which was confirmed by the S. I. O., in one case and reversed by him in the other case. In this view of the matter, he found that there was contravention of Rule 11. In the ultimate analysis, the learned Single Judge also held that there had been no substantial failure of justice nor any injury had been caused to the petitioner by the impugned orders. Aggrieved by the orders of the learned Single Judge dismissing his writ petitions, the petitioner has filed those two special appeals.
4. We have heard Mr. K. N. Joshi on behalf of the appellants and Mr. M. D. Purohit on behalf of the State of Rajas-than. We have also heard Mr. A. K. Mathur on behalf of the interveners, who are the cultivators in the same area and are thus interested in the result of these appeals.
5. The short point that falls for our determination is whether the impugned orders passed by the S. I. O. are in accordance with law. But before we determine that, we may address ourselves to the question of substantial injury. It is sufficient to point out that in paragraph No. 5 of the writ petition, the petitioner has alleged that by change of outlets, the petitioner's land has come in the reverse flow of water and the change has converted part of the command area into un-command area and consequently this change has been highly detrimental to the petitioner's interest. The allegation that the petitioner has got his land in these Chaks and that land is irrigated with the water flowing from the outlets in question, has not been denied by the State in the reply filed to the writ petition. Again, the fact that the interests of the petitioners are vitally affected by the change in the outlets, is further borne out from the report of the Chief Engineer, which was called by this Court. In his report, Shri V. K. Gupta, Chief Engineer, Raja'sthan Canal Project, Bikaner, has stated in connection with Chak No. 20 N. W. D. that from the inspection of site, it is evident that the fields of the appellant, which were receiving irrigation previously, can be irrigated from the changed locations of the outlets as the water courses are in filling.' In respect of Chak No. 19 N.W.D,, Shri V. K. Gupta has observed that 'even at present the fields of Shri Baga Ram can definitely be irrigated as the watercourse is sufficient in filling and water can be taken through the existing net work of water course and field channels. By keeping the outlet at the original position, the full supply of water is likely to be high by about 0.2 ft. and will be convenient for irrigating areas in adjoining reaches.' Thus from the above reports of the Chief Engineer, it is abundantly clear that the interest of the petitioner is vitally involved in the change of the oultlets, and therefore, we are unable to agree with the learned Single Judge that no injury is caused to the petitioner by change of outlets.
6. Then it remains to consider the main question raised by the petitioner, namely, whether the impugned order by the S. I. O. is illegal and void. In order to appreciate this contention, we may read, here, the relevant provisions of Rule 11 of the Rules of 1957, which runs as under:--
'11. Distribution of canal irrigation--
(1) No irrigation from canal will be drawn from outlets other than those authorised by the Divisional Irrigation Officer. Qutters not so authorised may be removed and no claims in this respect shall lie against the Government. Persons violating this rule will be liable to punishment under Section 55 (9) of the Act.
(2) No material change shall be made in an established system of canal distribution except under the orders of the Divisional Irrigation Officer. Appeal against the orders of the Divisional Irrigat ion Officer, shall lie to the Superintending Irrigation Officer within 15 days from the date of issue of such orders and his decision in the matter shall be final.
(3) Notice for the reduction and removal of outlets, with brief reasons therefor shall be issued by the Divisional Irrigation Officer and given adequate publicity through Panchayats requiring all persons affected by such reduction or removal, who may wish to make objections to submit their objections in writting to the Divisional Irrigation Officer within 15 days from the date of issue of such notice. The Divisional Irrigation Officer shall, after considering all such objections, make necessary orders. Appeal, if any, against the orders of the Divisional Irrigation Officer shall lie to the Superintending Irrigation Officer within 15 days from the date of issue of the orders and his decision in the matter shall be final.
(4) In case the Divisional Irrigation Officer is of the opinion that distribution of Irrigation in a 'Chak' is not being ensured equitably and economically and Barabandi is essential; he may enforce Barabandi in the 'Chak' concerned after giving adequate publicity through Panchayats of his intentions of doing so. Appeal, if any, against the orders of the Divisional Officer shall lie to the Superintending Irrigation Officer within 15 days from the date of the issue of the orders and his decision in the matter shall be final. Breach of such Barabandi will be an offence punishable under Section 55 (9) of the Act.'
Sub-rule (2) provides that no material change shall be made in an established system of canal distribution except under the orders of the D. I. O and an appeal against his orders shall lie to the S.I.O. Thus the D.I.O. is the original authority in these matters and the S.I.O. is the appellate authority. Sub-rule (3) further provides the procedure to be followed by the D. I. O. In cases of reduction and removal of outlets, it provides that notice for the reduction and removal of outlets with brief reasons therefor shall be issued by the D. I. O. giving adequate publicity through Panchayat requiring the persons affected by such reduction or removal who may wish to make objections to submit their objections in writing within 15 days from the date of such notice and the D. I. O shall, after considering such objections, pass necessary orders. The reason behind this provision is obvious and quite understandable.
Any material change in an outlet may affect the cultivators who get water for their lands from that outlet and therefore, the rule makers, in their wisdom, thought it necessary that before any such change is introduced, the parties to be affected thereby must have adequate notice so that they may file objections, if they have any. This provision, in our view, is obligatory and must be followed. In the present case, no material has been placed on the record by the respondents to show that notice, as required by Sub-rule (3) was issued. The objection in this connection is being met by the opposite party on the ground that the S. I. O. had issued a joint notice dated September 12, 1978, to the cultivators including the petitioner to file objections to the proposed change in outlets on or before Sept. 28, 1978 and a joint statement of 18 cultivators on one side and another joint statement of 4 cultivators on the other side, were recorded and therefore, the provisions of Sub-rule (3) should be deemed to have been complied with. We are unable to accept this contention inasmuch as the S. I. O. had adopted a novel procedure for which there is no warrant in the Rules. It may be pertinent to point here, that he is only an appellate authority and the work of inviting objections and disposing them of has been assigned to the original authority, namely, the D. T. O. In disagreement with the learned Single Judge, we are, therefore, of opinion that the provisions of Sub-rule (3) too have not been complied with. In this connection, we may also point out that the S. I. O, by converting himself into an original authority, has deprived the aggrieved party of a right of appeal. The argument that because the S. I. O. is the appellate authority to whom the case would have ulitmately come and therefore his orders, passed, even though as an original authority, are valid, is in our opinion, not tenable. The Rules on the subject are quite clear that the D. I. O. is the original authority, who, after following the procedure prescribed by law, will decide the question of material change in the outlet and if any person is aggrieved by that order, he may file appeal within the prescribed time before the S. I. O. In our opinion, there has been a violation of Sub-rules (2) and (3) in this case and consequently, the orders passed by the S. I. O. as an original authority on the recommendation of the D. I, O., cannot be sustained.
7. Consequently, we allow these appeals and set aside the impugned orders passed by the S. I. O. as well as the recommendation made by the D. I. O. and the D. I. O. to proceed afresh in accordance with Sub-rules (2) and (3) of Rule 11 of the Rules of 1957, and thereafter pass an appropriate order. The party aggrieved by the order of the D. I. O. may then go in appeal to the S. I. O., if so advised.
8. The learned Additional Government Advocate as well as Mr. A. K. Mathur have, however, pressed upon us that the newly opened outlets may not be closed immediately as interests of a large number of cultivators would be adversely affected thereby. We do not wish to express any opinion in this connection, but having regard to the circumstances of the case, we hereby further direct that the newly opened outlets in Chaks Nos. 19 N. W. D. and 20 N. W. D. shall not be closed for a period of 2 months from today, within which the D. I. O. may conclude the proceedings. However, in case the proceedings before the D. I. O. are not concluded within 2 months, the outlets newly opened shall be closed and will be restored to their original position. It goes without saying that as and when the case is decided by the D. I. O., the matter, thereafter, will be proceeded with in accordance with law.
9. The result is that both the appeals are allowed and the orders passed by the learned Single Judge are set aside and the writ applications are allowed to the extent mentioned above.
The parties are left to bear their owncosts throughout.
10. Let a copy of this order be sent to the D. I. O., Rawatsar, for compliance.