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Manphool Ram Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 984 of 1982
Judge
Reported in1985WLN(UC)256
AppellantManphool Ram
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Excerpt:
constitution of india - article 226--writ--filing of--title of writ in name of mp but writ signed by mr--asthama not a disease to prevent movement for filing writ--mr filing affidavit instead of an authority to file writ on behalf mp--held, writ is not filed by proper person;the title of the writ petition is in the name of manphool ram, but manpool has not signed the writ petition. the writ petition is signed by maniram and the affidavit along with the writ petition is also by maniram. in this affidavit, it has been mentioned that manphool is the real brother of maniram, he is acquainted with the facts of this petition.;writ dismissed. - .....have given an affidavit that they had never consented to create a new water course from their land. manphool ram should have specifically given an affidavit that if any consent has been given by maniram, is not binding on them and without their direction. why maniram did not file any affidavit and the present writ petition has been signed by maniram, where as no name of maniram has been mentioned as petitioner. mere filing an affidavit that he has been authorised to file writ petition and swear the affidavit, is not sufficient and justified. what i feel that the petition has not been filed by proper person. maniram has no authority to file this writ petition. as there is no authority from manphool ram given to maniram to sign the writ petition and also to file an affidavit along.....
Judgment:

Gopal Krishna Sharma, J.

1. This writ petition is preferred by Manphool Ram son of Bega Ram and prayed that the order passed by the Divisional Irrigation Officer dated 1-1-1981 and that of Superintending Irrigation Officer dated 26-11-1981 respectively be quashed.

2. The petitioner's contention is that he is resident of Chak 8 IDG, Tehsil Sangaria, district Sri Ganganagar. He owns 22.14 bighas of land in Chak 8 IDG and is joint owner of the land with his brothers. This land is cultivated by him and is in his possession. His brothers in other chaks own some other land. The water turn of the above land is in the name of the petitioner. Respondent No. 4, Krishna Chandra, made an application before the Divisional Irrigation Officer. Hanumangarh regarding the transfer of his land from Chak 12 PTP to 8 IDG Krishna Chandra is already having some land in Chalk 8 IDG. On his application, proceedings were initiated and in those proceedings the statement of Maniram, who is brother of the petitioner, Manphool, was recorded regarding transfer of five bighas of land situated in square No. 114/113, killas No. 2, 3, 4, and 5 and square No. 115/113 kila No. 1 of chak No. 12 PTP. It is further alleged that no notice was served on the petitioner or his brother Dhannaram and also on Balwantram, who is minor son of his brother Sheokaran, regarding these proceedings. It was also mentioned that the petitioner's land was suitable for transfer from Chak 12 PTP to 8 IDG along with the land of respondent No. 4, Krishna Chandra. Therefore, the Divisional Irrigation Officer, by his judgment dated 1-1-1981, transferred the land of Krishna Chandra, which is 32 bighas and transferred the land of the petitioner Manphool Ram, which is 5 bighas. During these proceedings, the Divisional Irrigation Officer also sanctioned a now water course from stone lying 114/132 to 114/133, square No. 114/132 kilas 5,6, 15, 16 and 25 and in square No. 114/133, kilas No. 1 to 5, i.e., from total 10 kilas of land. This land is in possession of the petitioner. In square No. 114/132 on stone line in kila No. 16 of Chak 8 IDG where the proposed water course is to be passed, there is a Dhani of the petitioner. It is alleged that according to provisions contained in Rule 4(2) of 1957 Rules, no notice was given to the petitioner regarding the sanction of the new water course in the petitioner's land. No notice was given to his other brothers. There is a prescribed pro-forma in the Rules and procedure of Sections 21, 22 and 23 of the Act, 1954 has to be followed, but without following such procedure, the Divisional Irrigation Officer, passed the order dated 1-1-1980. An appeal was preferred against that order before the Superintending Irrigation Officer, who also rejected the appeal vide order dated 28-11-1981.

3. It is also contended that the Divisional Irrigation Officer has no power to sanction the new water course. A procedure has been laid down in Sections 21 and 23 of the Rajasthan Irrigation and Drainage Act, 1954. Section 24 of the Act says that within 30 days from the publication of a notice Under Sections 22 and 23, as may be, any person interested in the land or water course to which the notice refers, may apply to the Collector by petition stating his objections to the construction or transfer for which application has been made. The Collector may either reject the petition or proceed to enquire into the validity of the objection, giving previous notice to Divisional Irrigation Officer of the place and then the Collector shall record in writing ail orders passed by him under this section. So it is contended that only the Collector is empowered to grant a new water course. The Divisional Irrigation Officer is only a recommending authority and he has no power to grant or sanction new water course. Under such circumstances, Manphool has challenged the order of Divisional Irrigation Officer and Superintending Irrigation Officer.

4. Mr. B.L. Purohit, learned counsel for respondent No. 4, has put in appearance and objected to the writ petition.

5. I have heard both the learned counsel and perused the entire record submitted along with the writ petition, It is pertinent to note that in para 5 of the writ petition, it has been mentioned that during the proceedings before the Divisional Irrigation Officer, Hanumangarh, statement of Maniram, who is brother of Manphool, petitioner, was recorded regarding transfer of five bighas of land situated in Chak No. 12 PTP and they wanted to transfer it to Chak 8 IDG. It was argued that no such statement of Maniram was recorded. Maniram did not give his consent to the creation of this new water course. It was also contended that even suppose Maniram has given his consent then too the Divisional Irrigation Officer has no authority to grant sanction for the new water course. This power vests with the Collector according to the Act of 1954. As such, the consent of Maniram is irrelevant and for creating a new water course, the procedure as laid down in Sections 21, 22 and 23 of the Act of 1954 has to be followed. The petitioner or his brother should have been given notice about the change in the water course. The proposed water course passes through the land of the petitioner which fact is not disputed Without giving notice to the petitioner about this creation of new water course no such order can be passed by any authority. Thus, entire proceedings before the Divisional Irrigation Officer is liable to be quashed and the order of the Superintending Irrigation Officer is also incorrect and liable to be quashed.

6. No doubt this argument sounds much. It is admitted that respondent No. 4 had five kilas of land in Chok 8 IDG and water course to these five kilas was from that point, which did not disturb the land of the petitioner. Now after the transfer order by the Divisional Irrigation Officer, the water course has been changed and according to new proposed water course, the respondent No. 4 will take water through the land of the petitioner, i.e., through those 5 kilas, which were previously in 12 TPT and now transferred to 8 IDG, but the main point, to be seen is whether Manphool has filed the writ petition or Maniram has filed this writ petition. The title of the writ petition is in the name of Manphool Ram, but Manphool has not signed the writ petition. The writ petition is signed by Maniram and the affidavit along with the writ petition is also by Maniram. In this affidavit, it has been mentioned that Manphool is the real brother of Maniram, he is acquainted with the facts of this petition. As Manphool Ram is suffering from asthama and he is advised to take rest and is not in a position to under-take journey, Maniram has been authorised by his brother to file the writ petition. No authority has been filed along with this writ petition. The power, which has been filed, bears thumb impression of Manphool Ram and that power too has no mention that he has authorised Maniram to engage counsel or file the writ petition on his behalf. The appeal, which was preferred before Superintending Irrigation Officer, was also preferred by Manphool, brother of Dhannaram and Balwant s/o his brother Sheokaran who was minor. Maniram was not party in the appeal before the Superintending Irrigation Officer. According to entire facts Maniram gave his consent. On account of that consent, the Divisional Irrigation Officer changed the new water channel. What authority Maniram has to give such a statement is not on record. Whether by the statement of Maniram, Manphool Ram and other brothers were bound. The land in question was in joint possession of Manphool, Dhannaram and minor son of Sheokaran. Maniram also being brother had his share in this land, but it cannot be said that Maniram is only owner of this land. If any consent is to be recorded, this should be recorded by Divisional Irrigation Officer from all the brothers. There is nothing on the record to show that Manphool Ram, Dhannaram, minor son of Balwant, had also given their consent, so all the proceedings before Divisional Irrigation Officer were persuaded by Maniram and the same Maniram has filed the petition here. This is really strange one. If Maniram had done something, and had given statement without consent of Manphool Ram and other brother to Divisional Irrigation Officer, Manphool Ram and his brothers should have filed the writ petition. Maniram, who had given statement of consent and now on behalf of the brothers says that, the consent is not binding on Maniram and other brothers is strange aspect. Asthama is not such a disease by which Manphool could come to Jodhpur and file the writ petition. This is not such disease, which prevented Maniram to give an authority to file the writ petition and also to file the affidavit. Manphool Ram could have given an affidavit that they had never consented to create a new water course from their land. Manphool Ram should have specifically given an affidavit that if any consent has been given by Maniram, is not binding on them and without their direction. Why Maniram did not file any affidavit and the present writ petition has been signed by Maniram, where as no name of Maniram has been mentioned as petitioner. Mere filing an affidavit that he has been authorised to file writ petition and swear the affidavit, is not sufficient and justified. What I feel that the petition has not been filed by proper person. Maniram has no authority to file this writ petition. As there is no authority from Manphool Ram given to Maniram to sign the writ petition and also to file an affidavit along with this writ petition, I am of this opinion that such writ petition should not be entertained. Thus, the writ petition has been filed by an unauthorised person, which is liable to be dismissed at this stage. Such writ petition needs no consideration. Therefore, the writ petition is dismissed, as not filed by proper person.


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