1. Umaram, an unsuccessful petitioner, has filed this special appeal against the judgment of single Judge of this Court by which his petition under Article 226 of the Constitution with a prayer of writ of certiorari to quash the orders dated 2-1-73 and 13-6-74 of the Executive Engineer, Gang Canal South Division, Sriganganagar aid the order dated 2-3-68 of the Revenue Appellate Authority, Bikaner, passed in & reference made to it under Section 27 of the Rajasthan Irrigation and Drainage Act, 1954 (for short, 'the Act' hereafter was dismissed.
2. In this appeal, the only point argued by Mr. Parekh, learned Counsel for the appellant is that the impugned orders in relation to the alteration in the water channel after an identical prayer for this alteration having been rejected earlier by the competent authorities under the Act was passed in judicial proceedings and in any case was of quasi judicial nature determining the rights of the parties and, therefore, since the above Act provides no provision for review, it was without jurisdiction and liable to be quashed on that ground alone That being so, it was argued that the learned single Judge was cot justified in treating as a mere administrative order under Section 22 of the Act and further holding that it was permissible for the authorities under the Act to alter, vary, amend, rescind and review their orders for the alteration of the water-course either by fresh construction in the land of the Murabba holder or by altering it in a manner wherein his land is unwillingly taken possession of by the State to give benefit to his neighbours or other persons.
3. The facts have been given in detail by the learned single fudge and they are not disputed. In a nutshell, the petitioner is khatedar of killa Nos. 24 and 25 in sq. No. 28 and killa No. 4 and 5 in sq No. 37 in chak 24 L.N.P. Chunnilal is khatedar of killa No. 1 to 3, 8 to 13 and 18 to 23 of sq No 28 and the entire land of sq. No, 29 and SO in the said chak Chunnilal is getting the water-supply by water-course which runs between sq No. 38, 37 86 and 35 and sq. No. 42, 43, 44 and 45, and this has to be brought through channels between sq. Nos. 27, 36 and 36, 35 There also exists another water-course running between Sq. No 27 aid 28. Chunnilal applied to the Irrigation Authorities to construct a new water course by extending the existing between sq No 27 and 28 so as to run between sq. No. 28, 29, 30 and sq No. 27, 36 and 35. The petitioner and ether landholders raised some objections. The Executive Engineer rejected the prayer en 2-11-72.
4. Then come the impugned orders which were passed on a fresh implication supported by deposit of Rs. 600/- on account of compensation to he paid to Umaram and others. The same prayer was accepted on the ground that it was necessary in the interest of irrigation. The recommendation dated 2-2-73 of the Executive Engineer was considered by the Additional Collector, Sriganganagar on 11-3-74 who remanded the case back to the Evecutive Engineer for site-inspection and preparation of level charts which was done on 8-5-74 and which resulted in the refraining of the earlier recommendation by order dated 13-6-74. The Addl Collector then refused to accept the recommendation on the ground that the Executive Engineer has rejected it earlier. Confronted with the above situation, the Executive Engineer made a reference to the Revenue Appellate Authority under Section 12 of the Act and the same was accepted on 2-3-78 and the construction of the water channel as mentioned above, was ordered. Section 27 of the Act is as under.
27. Procedure when irrigation officer disagrees with Collector - If the irrigation officer disagrees with the Collector, the matter shall be referred to the revenue appellate authority for decision. Such decision shall be final and the Collector, if so directed, shall, subject to the provisions of Section 28, cause the said applicant to be placed in occupation of the land so marked out or of the water course to be transferred, as the case may be.
We have, at the very threshold of this judgment, stated the points of controversy raise by Mr. Parekh before the learned single Judge which have been reiterated here. The Executive Enginer, functioning as Divisional Irrigation Officer under the Act and it is contended that under Section 54 of the Act, all proceedings which are taken by the various officers under the Act are judicial proceedings and the orders passed there under are judicial orders. Section 54 is contained in part VIII which relates to jurisdiction and reads as under.
54. Power to summon and examine witnesses. - Any officer empowwered under this Act to conduct any inquiry may exercise all such powers connected with the summoning and examining of witnesses, as are conferred on Civil Courts by the Code of Civil Procedure arid every such enquiry shall be deemed a judicial proceeding.
The contention of Mr. Parekh is that the Divisional Irrigation Officer, while passing the impugned order, was having the powers of civil courts and the proceedings before him were judicial proceedings It was then argued that even if the court refuses to take the above vtew, then also the power of review cannot be treated as implied even where orders are passed under different striates and they are no judicial orders Reliance was placed on Thokershi and Ors. v. Pradhumansinghji : AIR1970SC1273 Ghaurul Hasan v. State of Rajasthan and : 1SCR772 , Major Chander Bhan Singh v. Latafat Ullah Khan 1978 UJ(SC) 878 In reply to the submission of Mr. Parekh, both learned Additional Government Advocate and Mr. Arora appearing for the contesting respondent Chunnilal have invited our attention to the reasons given by the learned single Judge for repelling the above submissions and the authorities relied upon for substantiating it The learned Single Judge has relied upon Western India Watch Co. v. Its Workmen : (1970)IILLJ256SC and State, of Madras v. CP Sarothy : (1953)ILLJ174SC and held on the analogy of Section 10 of the Industrial Disputes Act that the administrative authorities are not deprived of their jurisdiction by rejecting the prayer once for making reference to the Industrial Tribunal and they can always make the reference Hater on even though earlier the view taken was against making a reference.
5. The appellant accordingly submitted that this analogy drawn by the learned single judge and which is being canvassed now by the respondents here before this Court, is irrelevant for adjudicating the nature and character of the order passed by the Divisional Irrigation Officer under the Act while first refusing to sanction the new water channel and then reviewing that order by ordering or recommending the construction of the same water channel.
6. We have considered the respective submissions of the learned Counsel for the parties and have also carefully gone through the material on the record and specifically, the judgment of the learned single judge, in addition to the various judgments cited by the learned Counsel for the parties and discussed in the judgment of the learned single judge.
7. The Act was enacted to regulate irrigation and drainage in the State of Rajasthan. A careful perusal of this Act and its scheme would show that various officers were given statutory powers for controlling irrigation and drainage in the irrigated areas of agricultural land in Rajasthan. Construction of water channels and outlets being the mod important function of these officers, care was taken to have cross-checks by entrusting this work to a number of officers which included both technical as well as administrative and references were provided to the judicial forums of revenue appellate authorities.
8. We are precisely concerned in this case with the law regarding opening of new water courses which is contained in Sections 21 to 20 of the Act. An application can be made under Section 21 by a person desiring to construct a new water course to the Divisional Irrigation Officer. This application becomes necessary when the applicant becomes unsuccessful in acquiring the land from the owners of the adjoining areas through which he desires such water course to pass. The applicant then has to express his willingness to pay all costs involved in the acquiring of such right and constructing such watercourse. The Divisional Irrigation Officer, thereafter, under Section 22 first considers whether the construction of such water course is expediens and then he can call upon the applicant to make such deposit as he considers necessary to defray the costs of preliminary proceedings and the amount of any compensation which he considers likely to become due under Section 28, and upon such deposit being made, he shall cause enquiry to be made into the most suitable alignmen for the said water course and shall mark out the land which, in his opinion, it will be necessary to occupy for the construction thereof and shall forthwith publish a notice in every village through which the Water course is proposed to be taken, that so much of such land as belongs to such village has been marked out. Sections 23 and 34 concern transfer of the existing watercourse and provide for the calling of objections and their decision by the Collector. Sections 25 and 26 are consequential to the decisions and the action to be taken by the Collector in case no objections are received or when he upholds the objections Incase of disagreement between the Irrigation officer and the Collector, reference is to be made to the revenue appellate authority as have been done in the present case Section 28 ensures that occupation of the land will not be given to the applicant unless he has paid the costs and the amount of compensation determined to be paid to the other side and further the required formalities have been completed. It is to be noted that this chapter, read as a whole, nowhere contemplates judicial proceedings nor does it contemplate quasi judicial proceedings, except the Collector or Revenue Appellate Authority. All that which is provided is a hierachy of officers and forums wherein the processing is to be done and the irrigation officer being the technical person, has been given powers to act as the basic authority but fie can only make recommendation and if the Collector, who is supposed to watch the interests of all concerned, including the objectors, disagrees with him, then the revenue appellate authority adjudicates the matter. At the stage the matter is adjudicated by the revenue appellate authority, it can certainly become an order or judgment in judicial proceedings or quasi judicial proceedings However, before then and more so, at the stage of the Executive Engineer only, but can it be said that when he considers the questions of expediency under Section 22 for prima facie entertaining the application, it is a matter of quasi judicial nature? The stages of consideration by the Divisional Irrigation Officer and his recommendation are all making enquires for finding out the justness and the propriety of the prayer of the applicant in the interest of irrigation only. There is no list between the applicant and any other party at that stage. Neither the applicant recites the name of the respondents or non- petitioners nor in fact there are any non-petitioners or respondents in the case. It is true that the person whose lands is fought to be taken, is likely to be adversely affected by the order under these Sections but that is consequence in all land acquisition proceedings also. Merely because the person is adversely affected by an order, the order cannot become judicial or quasi judicial in nature. The provisions in this chapter further contemplate calling and hearing of objections but from that also, it cannot be inferred that the order would become judicial or quasi judicial. We are also not impressed by the submission that because Section 54 of the Act empowers these officers to exercise the powers of civil courts for the purpose of calling of the witnesses and summoning of the record etc. and for that they are treated as judicial proceedings, the order culminating ft on such a source would also become a judicial order or an order in judicial proceedings. We are in agreement with the view taken by the learned single Judge that the proceedings taken by the Divisional Irrigation officer under Section 22 of the Act are in the nature of administrative proceedings only.
9. The orders or proceedings before the Divisional Irrigation Officer and the Collector under Section 22 and Section 24 of course stand on different footing. The Divisional Irrigation Officer acts purely as an administrative officer and his 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.
10. The distinction between Section 22 and Section 24 have been well taken note of by the learned single Judge and we are in agreement with him of thedistinction drawn between the two proceedings.
11. It would now be necessary to examine the various judgments relied upon by Mr. Parakh in order to appreciate whether on account of the principles enunciated by them, it can be said that the proceedings under Section 22 of the Act are judicial or quasi judicial proceedings or irrespective of that whether the order passed under Section 22 being statutory, cannot be reviewed without an express provision of review under the Act The judgment in Patel Narshi's case (1) is in a case of Saurashtra Land Reforms Act wherein Section 63 of that Act was interpreted. It was held.
The power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.
In that case, rights of girasdar were adjudicated by Mamalatdar on October, 1954, and no appeal was filed against that order within time prescribed. But on September 4, 1956 an application was filed to the Government under Section 63 of the Act to set aside the order of Mamlatdar and the Deputy Collector. The High Court took the view that the impugned order under challenge was passed by a delegated authority of the Government and he had no power to review the earlier order of the Government and quash it. It was held that even the Government had no power to review its earlier order because there was no express provision in the statute. It would, thus, be seen that in the earlier orders which were passed there was a his and contest between the parties and the adjudication was done and appeals were provided. That being so, the principles laid down in that case cannot provide proper guidance for deciding the question raised in the instant case which depends upon the peculiar scheme of the relevant Act.
12. The judgments in Ghaurulal Hasan's case (2) and Major C.B. Singh's case (3) were given on the peculiar provisions of the Citizenship Act and the Evacuee Interest (Separation) Act respectively. Prem Chand and Ors. v. State of Rajasthan 1978 WLN (UC) 246 relates to Rajasthan (Allotment & Conversion of Agricultural land for Residential or Commercial Purposes in Urban Areas) Rules, 1971 and as would be evident from its para 6, important rights accrue to citizens on account of either grant of conversion or refusal of conversion of land. That being so, all these judgments relied upon by Mr. Parekh based on the peculiar features of the statutory provisions in those Acts and which basically results in either creation of or refusal of some legal rights to the person aggrieved and the order which are based on objective consideration and adjudication after due enquiry, cannot be treated as analogous to the provisions of Section 22 of the Act. It should be noted that under Section 22, the Divisional Irrigation Officer and the Divisional Irrigation Officer alone is to consider whether it is expedient or not and that at that stage no enquiry ii contemplated nor any adjudication is done inter se the parties by him.
13. Apart from this, in the present case, another important feature pointed out by Mr. Arora and Mr. Purohit also assume importance. According to them, when the application was rejected earlier, neither the payment of costs and compensation was made by the respondent Chunnilal nor any order for making such payment was made by the Divisional Irrigation Officer. That being so, the earlier rejection was made at a premature stage on an application which itself was not entertained even in limine or considered prima facie. The payment of the account of costs or compensation is a sine qua non for any serious consideration of the application under Sections 21 and 22 of the Act and that having not been done, the earlier rejection order was not on merits and in any case, will not be deemed to be on merits in law. That being so, it would not create any impediment or any duty for fresh consideration of a fresh application though it may be for opening of the same water channel. We find sufficient force in this contention of Mr. Purohit and Mr. Arora and we are of the opinion that on this point alone, the writ application could have been dismissed. Then comes the crucial controversy about the analogy drawn from Section 10 of the Industrial Disputes Act by the learned Single Judge and the support taken by him of the judgment of Hon'ble Supreme Court in Madras case (5) and Western India Watch Company's case (4). Section 10 of the Industrial Disputes Act is as under.
10. Reference of disputes to Boards, Courts or Tribunals.
(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing.
(a) refer to dispute to a Board for promoting a settlement thereof; or.
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for enquiry; or.
(c) refer the dispute or any matter appearing to be connected with, or relevant to the dispute if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or.
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to Tribunal for adjudication....
Undoubtedly, even where a matter comes for reference of Industrial Dispute to the Labour Court or Industrial Tribunal, a number of persons whose service conditions are subject-matter of the controversy or whose dismissal or removal on retirement, salary, emoluments, bonus or holidays is under dispute, right to strike or legality of strike or lock out is to be considered, are matters of serious consequences both to the labour and the management. Even in such a master, the view taken by the above two judgments is that the orders of the Government refusing to make a reference or the earlier decision not to make ' reference and then a charge in the decision by nuking a reference, all come within the purview of administrative orders only.
14. It was observed by the Hon'ble Supreme Court in Western India Watch Co's case (4),.
From the words used in Section 4.K of the Act there can be no doubt that the legislature has left the question of making or refusing to make a reference for adjudication to the discretion of the Government. But the discretion is neither unfettered nor arbitrary for the Section clearly provides that there must exist an individual dispute as defined by the Act or such a dispute must be apprehended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Government decides to make it an industrial dispute between the employer and his employees either exists or is apprehended. Therefore, the expression 'at any time', though seemingly without any limits, is governed by the context in which it appears. Ordinary, the question of making a reference would arise after conciliation proceedings have teen gone through and.....In fact, when she Government refuses to make a reference it does not exercise its power; on the other hard it refuses to exercise its power and it is only when it decides to refer that it exercises its power. Consequently, the power to refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage. There is thus a considerable body of judicial opinion according to which so long as an industrial dispute exists or is apprehended and the Government is of the opinion that it is so, the fact that it had earlier refused to exercise its power does not preclude it from exercising it at a later stage. In this view, the mere fact that there has been a lapse of time or that a party to the dispute was, by the earlier refusal, ltd to believe that there would be do reference and acts upon such belief, does not affect the jurisdiction of the Government to make the reference.
While considering Section 10 of the Industrial Disputes Act, the Hon'ble Supreme Court observed in State of Midras' case (5) as under..If the dispute was an industrial dispute as defined in the Act, its factual existence end the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction mereby because there was, in its opinion, no material before the Governments on which it could have come to an affirmative conclusion on those matters.
We are in agreement with the reasons given by the learned Single Judge on this important aspect of the case.
15. In view of the above, the analogy drawn by the learned Single Judge between Section 10 of the Industrial Deputes Act and Section 22 of the Act appears to be correct. Under Section 22 also the Divisional Irrigation Officer is first required to apply his mind on the question of expediency regarding either construction of as new water course or channel and at that stage, it cannot be said that he discharges any functions which can be of quasi judicial or judicial nature. They are pure and simple administrative actions, depending upon the various situations, developments and requirements of whether the fragmentation, division or consolidation of the holdings, revenue laws of the State, the physical conditions of the fields and the agricultural lands, requirement of irrigation, such orders can always be altered and charged from time to time. We cannot hold that once an order is pasted under Section 22, the Divisional Irrigation Officer becomes functus officio for all times to come like a judicial officer sitting in a judicial matter.
16. We have, therefore, no hesitation in upholding the judgment of the learned single Judge and consequently, this appeal is dismissed without any order as to costs.