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Hanuman Vs. Neni Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Special Appeal No. 474/1971
Judge
Reported in1981WLN(UC)317
AppellantHanuman
RespondentNeni Bai and ors.
DispositionAppeal dismissed
Cases ReferredUmaram v. Revenue Appellate Authority and
Excerpt:
.....to reconsider his earlier order.;the order dated september 14, 1967 had been passed by the executive engineer in exercise of the powers conferred upon him under section 22 read with section 30 of the act and, therefore, the nature of power which was exercised by the divisional irrigation officer was administrative in nature. the superintending engineer, while hearing the appeal against the aforesaid order of the executive engineer was also exercising the same power and, therefore, the order that was passed by the superintending engineer on may 8, 1969, was also an order passed under section 22 of the act. the fact that the super in tending engineer was exercising the appellate power under rule 55 of the rules will not alter the nature of the order that was passed by him and the..........for alteration of the said water course and on the aforesaid application of hanuman, the exective engineer passed an order dated september 14, 1967, whereby it was directed that water course shall run from stone no. 69/235 to stone no. 67/234 and then to stone no. 69/234. lachhman filed an appeal against the aforesaid order passed by the executive engineer before the superintending engineer, bikaner irrigation circle, sri ganganagar. the superintending engineer, by his order dated may 8, 1969, allowed the said appeal and sanctioned the change of the water course from stone no. 67/235 to stone no. 69/235 and to stone no. 69/234 on the view that it was more suitable to the interests of the holders, of squares nos. 43 and 44. by his order dated june 4, 1969, the superintending engineer,.....
Judgment:

S.C. Agarwal, J.

1. This special appeal has been filed the .appellant Hanuman against the order dated October 14, 1971, passed by the learned Single Judge in S.B. Civil Writ Petition No. 1709 of 1969. By the order aforesaid, the learned Single Judge allowed the writ petition filed by Lachhaman and quashed the order dated June 4,1969, passed by the Superintending Engineer, Sri Ganganagar and the order dated September 22,1969, passed by the Collector, Sri Ganganagar.

2. The facts giving rise to the writ petition aforesaid are briefly as under. Appellant Hanuman owns field in Square No. 44 in Chak No. 39, Tehsil Padampur, whereas Lachhman was holding land in, Squares No. 42 & 43. Irrigation to the fields of Hanuman as well as Lachhman was done by Shri Gang Canal through the water course which was running from stone No. 67/235 to stone No. 69/235 and then to stone No. 69/234. Hanuman submitted an application before the Executive Engineer Sri Gang Canal Sourthern Division Sri Ganganagar, for alteration of the said water course and on the aforesaid application of Hanuman, the Exective Engineer passed an order dated September 14, 1967, whereby it was directed that water course shall run from stone No. 69/235 to stone No. 67/234 and then to stone No. 69/234. Lachhman filed an appeal against the aforesaid order passed by the Executive Engineer before the Superintending Engineer, Bikaner Irrigation Circle, Sri Ganganagar. The Superintending Engineer, by his order dated May 8, 1969, allowed the said appeal and sanctioned the change of the water course from stone No. 67/235 to stone No. 69/235 and to stone No. 69/234 on the view that it was more suitable to the interests of the holders, of squares Nos. 43 and 44. By his order dated June 4, 1969, the Superintending Engineer, Bikaner Irrigation Circle, Sri Ganganagar, reviewed his earlier order dated May 8, 1969, and directed that the water course as sanctioned by the Executive Engineer in his order dated September 14, 1967 may be maintained. Lachhman filed a petition before the Collector, Sri Ganganagar but the said, petition was rejected by the Collector by his order dated September 22, 1969. Thereafter, Lachhman filed a writ petition in this court wherein he challenged the order dated June 4, 1969 passed by the Superintending Engineer and the order dated September 22, 1969, passed by the Collector, Sri Ganganagar.

3. During the pendency of the writ petition Lachhman died and respondents Nos. 1 to 9 were brought on the record as his legal representatives.

4. The aforesaid writ petition of Lachhman was allowed by the learned Single Judge by his order dated October 14, 1971. The learned Single Judge held that no power had been conferred on the Superintending Engineer to review an order passed by him in appeal and therefore, he was not competent to review the order dated May 8, 1969. The learned Single Judge further held that the order dated June 4, 1969 had been passed without affording any opportunity to Lachhman to show cause why the earlier order dated May 8, 1969, should not be reviewed and the order dated June 4, 1969, was thus passed in violation of the principles of natural justice. Being aggrieved by the aforesaid order of the learned Single Judge the appellant has filed appeal.

5. We have heard Mr. M.L. Shrimali, learned Counsel for the appellant and Mr. J.P. Joshi, learned Counsel for respondents Nos. 1 to 9.

6. Before dealing with the contentions urged by the learned Counsel for the parties it would be relevant to refer to the provisions of the Rajasthan Irrigation and Drainge Act, 1954 (hereinafter referred to as 'The Act') which makes provision for regulation of irrigation and drainage in the State ofRajasthan. Part III of the Act (section 14 to 30) contains provisions relating to the construction and maintenance of irrigation works, Section 21 provides for submission of an application to the Divisional Irrigation Officer by the person desiring the construction of a new water course. Section 22 lays down that if the Divisional Irrigation Officer considers that the construction of such water course is expedient and that statement in the application are true he shall cause an enquiry to be made into the most suit table alignment for the said water course & shall mark out the land which, in his opinion, it will be necessary to occupy for the construction thereof & shall forthwith publish a notice in every village through which the water course is proposed to be taken that so much land as belongs to such village has been so marked out. Section 24 provides for filing of objections before the Collector by any person interested in the land or water course to which the notice issued Under Section 22 refers with in thirty days of the publication of the notice and that consideration of the said objections by the Collector after giving previous notice to the Divisional Irrigation Officer. Section 25 lays down that if no objection is made or the objection is overruled by the Collector, he shall give notice to the Divisional Irrigation Officer and shall proceed to place the applicant in occupation of the land marked out. Section 28, however, provides that the applicant shall not be placed in occupation of such land until he has paid to the person named by the Collector such amounts, as may be determined to be due as compensation for the land so occupied & for any damage caused by the marking out of occupation of such land together with all expenses incidental to such occupation or transfer. Section 30 lays down that the procedure provided for the occupation of land for the construction of a water course shall be applicable to the occupation of land for any extension or alteration of a water course.

7. Rule 55 of the Rajasthan Irrigation and Drainage Rules, 1957 (hereinafter referred to as 'the Rules') confers a right of appeal to the Superintending Irrigation Officer from any original order passed by the Divisional Irrigation Officer under the Act or the Rules.

8. Mr. M.L. Shrimali has submitted that the proceedings that were taken before the Executive Engineer, i.e. the Divisional Irrigation Officer were under the provisions of Sections 21 & 22 read with Section 30 of the Act and that under the said provisions the Executive Engineer is only required to make recommendations and that the final orders are passed by the Collector and, there fore, the order that is passed by the Executive Engineer is in the nature of an administrative order and it is open to the Executive Engineer to revoke & rescind his earlier order in view of the provisions contained in Section 22 of the Rajasthan General Clauses Act. Mr. Shrimali has submitted that the power exercised by the Superintending Engineer, i.e. the Super in tending Irrigation Officer, was the same which is exercised by the Executive Engineer and the Superintending Engineer was, therefore, competent to revoke and rescind his previous order dated May 8, 1969.As regards the breach of the principles of natural justice, the submission of Mr, Shrimali was that since the power that was being exercised by the Superintending Engineer was administrative in nature, the principles of natural justice would not be applicable.

9. Mr. J.P. Joshi, has, on the other hand, submitted that the order dated May 8, 1969 had been passed by the Superintending Engineer in exercise of his appellate powers under Rule 55 and that in the absence of any power of review having been expressly conferred, it was not open to the Superintending Engineer to review his earlier order dated May 8, 1969. Mr. Joshi has further submitted that in any event the Superintending Engineer, before reviewing his order dated May 8, 1969, ought to have afforded to Lachhman, at whose instance the aforesaid order dated May 8,1969 was passed, an opportunity to show cause against the revocation of the order dated May 8, 1969 and that the order dated June 4,1969, whereby the Superintending Engineer reviewed his earlier order dated May 8,1969, without affording an opportunity to Lachhman, being an order passed in violation of the principles of natural justice was null and void.

10. The first question which arises for consideration is whether the Superintending Engineer was competent to review the order dated May 8, 1969, passed by him. In this connection reference may be made to the decision of a Division Bench of this court in Umaram v. Revenue Appellate Authority and others 1980 WLN (UC) 74 In that case this Court has considered the provisions contained in Section 21 to 30 of the Act. It has been observed that a distinction must be made between the proceedings Under Section 22 before the Divisional Irrigation Officer and the proceedings Under Section 24 which are taken before the Collector and it has been pointed out that while acting Under Section 22 of the Act the Divisional Irrigation Officer acts purely as an administrative officer and the said proceedings are of administrative nature but when the matter is considered by the Collector, it partakes the character of a judicial or quasi judicial proceedings. The court has pointed out that Under Section 22 of the Act the Divisional Irrigation Officer is first required to apply his mind on the quantum of expenditure regarding construction of a new water course or channel and at that stage it cannot be said that he discharges any functions which can be of quasi-judicial nature and that they are pure and simple administrative actions, depending upon the various situations, developments and requirements of the fragmentation, division or consolidation of the holdings, revenue laws of the State, the physical conditions of the fields and the agricultural lands and the requirements of irrigation and that such orders can be altered and changed from time to time. This Court rejected the contention that when an order is passed Under Section 22 the Divisional Irrigation Officer becomes functus officio for all times to come like a judicial officer sitting in a judicial manner. This Court, therefore, held that it is open to the Divisional Irrigation Officer to reconsider the matter even after he has passed an order Under Section 22 of the Act and the fact that no power of review has been conferred would not preclude him from passing an order different from the order that was passed by him earlier.

11. In the present case the order dated September 14, 1967 had been passed by the Executive Engineer in exercise of the powers conferred upon him Under Section 22 read with Section 30 of the Act and, therefore, the nature of the power which was exercised by the Divisional Irrigation Officer was administrative in nature. The Superintending Engineer, while hearing the appeal against the aforesaid order of the Executive Engineer was also exercising the same power and, therefore, the order that was passed by the Superintending Engineer on May 8, 1969 was also an order passed Under Section 22 of the Act. The fact that the Superintending Engineer was exercising the appellate power under Rule 55 of the Rules will not alter the nature of the order that was passed by him and the said order would partake the same character as the original order passed by the Executive Engineer. Since the Original order had been passed Under Section 22 of the Act, the order dated May 8, 1969, passed by the Supermtending Engineer, in app al, should also be treated as an order passed under section 22 of the Act. We are, therefore, of the opinion that the Superintending Engineer was comptent to reconsider the order dated May 8, 1969 passed by him.

12. The next question that arises for consideration is whether it was necessary for the Superintending Engineer to have afforded an opportunity to Lachhman before reconsidering his earilier order dated May 8, 1969. In our view the order dated May 8, 1969, had been passed by the Superintending Engineer on the appeal that was filed by Lachhman against the order of the Executive Engineer and the said order that had been passed in favour of Lachhman in appeal could not be reversed or modified to his prejudice without affordidg him an opportunity of making his submission against the proposed action. In the present ease, admittedly, no such opportunitly was afforded to Lachhman prior to the passing of the order dated June 4, 1969, whereby the Superintending Engineer revoked his earlier order dated May 8, 1969 and restored the order dated September 14, 1967 passed by the Executive Engineer. The aforesaid order dated June 4, 1969, passed by the Superintending Engineer cannot, therefore, be sustained and in our opinion the learned Single. Judge was right in setting aside the same. Since the order dated June 4, 1969, was null and void as it was passed in violation of the principles of natural justice, the order dated September 22, 1969, passed by the Collector, Sri Ganganagar, whereby the aforesaid order dated June 4, 1969, passed by the Superintending Engineer has been affirmed, cannot also be sustained. In our view, there fore, the learned Single Judge was right in quashing the aforesaid order dated September 22, 1969 passed by the Collector, Sri Ganganagar.

13. We would, therefore, dismiss this special appeal and uphold the order passed by the learned Single Judge on October 14, 1971 quashing the order dated June 4, 1969 passed by the Superintending Engineer and the order dated September 22, 1969, passed by the Collector, Sri Ganganagar. The matter will now go back to the Superintending Engineer, Sri Ganganagar, who will decide the matter after affording an opportunity to both the parties to make their submissions. There will be no order as to costs of this appeal.


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