The requirement of consent for construction of a water course and the binding nature of concurrent findings of fact.

JUDGMENT :

1. Though the matter is listed under ‘Orders’ category’ but upon the joint request made by learned counsel for the parties, the matter is finally heard.

2. The instant writ petition is filed under Article 226 of the Constitution of India claiming following reliefs:

“It is, therefore, humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed and by an appropriate writ order or directions:-

(i) The impugned order dated 28.07.2007 (Annex-P/2) passed by the respondent no. 3 and the order dated 11.06.2018 passed by respondent no. 2 may kindly be quashed and set aside with all consequential benefits.

(ii) The respondents may kindly be restrained to open the water course through the land of petitioners.”

3. The factual matrix of the case in brief are that the agricultural land of petitioners is situated in Chak 2 KBM, Stone No. 327/386 in Killa No. 13/2, Killa No.14 to 25 ad-measuring13 Bighas Command land, in the name of one Shri Sahiram, who is the husband of Petitioner No. 1 and father of Petitioners No. 2 to 5, who expired on 29.03.2007. In regular records, the land is still recorded in the name of Shri Sahiram. The land aforesaid was earlier cultivated by respondent No.4 -Krishan Kumar whose land is situated in Murraba No. 327/387. Later on Respondent No. 4 submitted an application before the respondent No.3 – Executive Engineer for sanction of the water-course through the land of the petitioners situated in Killa Nos. 15, 16 and 25.

4. The Respondent No. 3 vide his order dated 28.7.2007 (Annex.2) issued permission for water-course through the land of the petitioners and subsequently, the water course was sanctioned in a camp conducted by the Department in Public Hearing Program. However, the aforesaid order dated 28.7.2007 (Annex.2) was not given effect till the month of February, 2017. Thereafter, when one Shri Banwarilal – respondent No.5 tried to open the water-course through the land of the petitioners and the petitioners objected to the same. The petitioners were informed that the water-course has already been sanctioned through their land as per the consent of the respondent No.5, who immediately submitted an application before the Executive Engineer stating that he has not given any affidavit in favour of the respondent No. 4 and the same is forged one.

5. The respondent No. 3 thereafter called report from the authorities and subsequently the authority concerned submitted a report (Annex.4) indicating therein that the water-course is running as per the chak plan prepared by the Patwari concerned. In the chak plan of the Patwari, considered from A to B water course is running and Respondent No. 4 is claiming water course from B to C also and, therefore, as per the report of authority the water course was not running from A to C and was operative between point A to B.

6. The petitioners filed appeal before the Superintending Engineer – respondent No.2 challenging the order dated 28.07.2007 (Annex.2). The Respondent No. 2, vide his order dated 11.6.2018 (Annex.6), rejected the appeal, observing that the water-course is presently running there.

7. Hence, aggrieved by the order dated 28.7.2007 (Annex.2) passed by Respondent No. 3 and order dated 11.6.2018 (Annex.6) passed by Respondent No. 2, the petitioners have preferred the present writ petition.

8. The learned counsel for the petitioners submitted that:

(A) the procedure for opening the water course has been very well prescribed under Sections 21 to 28 of the Rajasthan Irrigation and Drainage Act, 1954 (hereinafter referred to as “the Act of 1954”), which provides that the final order for sanctioning the water-course shall only be passed by the District Collector, whereas in this case, the water-course has been sanctioned by the respondent no.2, who is not competent to sanction the watercourse and hence, the order dated 28.7.2007 (Annex.2) is without jurisdiction;

(B) the respondent No.2, while passing the order dated 28.7.2007