C.M. Lodha, C.J.
1. These are two connected special appeals directed against a common order dated December 19, 1978 passed by the learned Single Judge, whereby the petitioner's writ applications registered as S.B. Civil Writ Petitions 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. SB Civil Writ Petition No. 857 of 1978 was in respect of Chak No. 20 NWD whereas SB Civil Writ Petition No. 858 of 1978 was in respect of Chak No. 19 NWD.
2. The Divisional Irrigation Officer, Rawatsar, who is also Executive Engineer, Rawatsar (hereinafter referred to as 'D.I.O.'), by his letter dated July 7, 1978 (Ex. 3), submitted his recommendation to the Superintending Irrigation Officer, Hanumangarh Junction, who is also Superintending Engineer (hereinafter referred to as 'S.I.O.'), that the outlet No. 20 NWD 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 NWD, he recommended that the present outlet position maybe kept as it is. On receipt of this recommendation the SIO, by his two separate orders dated October 26, 1278 (both marked Ex.2), ordered that the outlet in Chak No. 19 NWD be shifted from stone No. 134/17.8 to stone No. 134/10.5 and outlet No. 20 NWD be shifted from stone No. 134/10 feast-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 SIO, 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 SIO; and (ii) that the SIO 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 DIO and the SIO had jurisdiction to hear appeal from the original order. Consequently, the order passed by the SIO 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 stendi to file writ petitions in as much as he had no land in the 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 DIO after ascertaining the views of all the cultivators including the petitioner and his brother, and thereafter he hid sent his recommendation to the SIO and that the SIO, in his turn, had given a further opportunity to ail the cultivators to present their points of view before passing the impugned orders. He held that the recommendation made by the DIO must be taken in the nature of an original order, which was confirmed by the SIO 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 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 these two specials 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 Rajasthan We have also heard A.K. Matur on behalf of the Intervenes, 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-cottoned 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, Rajasthan Canal Project, Bikaner, has stated in connection with Chak No. 20 NWD 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 NWD Shri V.K. Gupta his observed that' even at present the fields of Shri Baga Ram can definitely be irrigated as the water course is sufficient in filling and water can be taken through the existing of 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 outlets, 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 SIO 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, 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 Irrigation 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 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 a education or removal, who may wish to make objections to submit their objections in writing 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 DIO and an appeal against his orders shall lie to the SIO Thus the SIO is the original authority in these matters and the SIO is the appellate authority. Rule (3) further provides the procedure to be followed by the DIO In cases of reduction & removal of out less, it provides that notice for the reduction & removal of outlets with brief reasons therefor shall be issused 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 chage in an cutlet 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 SIO had issued a joint notice dated September 12, 1978, to be cultivators including the petitioner to file objections to the proposed change in outlets on or before September 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 in as much as the SIO 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 DIO. 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 SIO, by converting himself into an original authority, has deprived the aggrieved party of a right of appeal. The argument that because the SIO is the appellate authority to whom the case would have ultimately 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 DIO 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 SIO. In our opinion, there has been a violation of Sub-rule (2) and (3) in this case and consequently, the orders passed by the SIO as an original authority on the recommendation of the DIO, cannot be sustained.
7. Consequently, we allow these appeals and set aside the impugned orders passed by the SIO as well as the recommendation made by the DIO & direct the DIO to proceed afresh in accordance with Sub-rules (2) & (3) of Rule 11 of the Rules of 1957, and thereafter pass an appropriate order. The party aggrieved by the order of the DIO may then go in appeal to the SIO if so advised.
8. The learned Additional Government Advocate as well as Mr. A.K. Mathur have, how ever, 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 Chak Nos. 19 NWD and 20 NWD shall not be closed for a period of 2 months from today, within which the DIO may conclude the proceedings. However, in case the proceedings before the DIO 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 DIO, the matter, thereafter, will be proceeded with in accordance with law.
9. The result is that both the appeals are allowed and the order passed by the learned Single Judge are allowed to the extent mentioned above. The parties are left to bear their own costs throughout.
10. Let a copy of this order be sent to the DIO, Rawatsar, for compliance.