Honble MATHUR, J.–In view of the short controversy involved, on the request of the learned counsel for the parties, this special appeal is taken up for final disposal.

(2). The appellant-writ petitioner submitted an application before the Divisional Irrigation Officer (Executive Engineer), Irrigation Division-II, Hanumangarh (hereinafter referred to as `D.I.O.) under the provisions of Rajasthan Irrigation and Drainage Rules,1957 for shifting of outlet 22 MOD from stone No.15.08/267.6 to stone No.19/267.8 with a view to get a proper water supply for their fields. The D.I.O. sought technical report from the concerned Patwari, Ziledar and Assistant Engineer and made a recommendation to Superintendent Irrigation Officer, Irrigation Circle, Hanumangarh Junction (hereinafter referred to as `S.I.O.). It appears that some objections were filed before the S.I.O. In view of this the S.I.O. sent the matter back to the D.I.O. by order dated 29.07.1997 to hear all the persons concerned and proceed in the matter keeping in view the technical aspects of the case. The Executive Engineer again made a recommendation under communication dated 04.10.1997 for shifting of the outlet. The S.I.O. by order dated 15.01.1998 rejected the recommendation and denied the request of shifting the outlet.

(3). The writ petitioner challenged the order of the S.I.O. dated 15.01.1998 (Annexure P-9) on various grounds, including that the order of S.I.O. is without jurisdiction inasmuch as it being the appellate authority under the Rajasthan Irrigation and Drainage Rules, 1957 (hereinafter referred to as Drainage Rules, 1957) could not have passed the original order for change of the outlet. The learned Single Judge while accepting the legal position that such an order could be passed only by D.I.O. did not find any illegality in the order of S.I.O. as in his opinion S.I.O. being a higher authority could pass such order. The view of the learned Single Judge is extracted as follows:

``It is true that Divisional Irrigation Officer can pass such orders and if the parties are aggrieved against such order then it can be carried in appeal before the Superintending Engineer, who is a higher authority. In my opinion, no error was committed by the Superintending Engineer in passing the impugned order. It would have been multiplicity of litigation if the Divisional Irrigation Officer first pass the order then it was carried in appeal. The higher authority can always pass order if it is satisfied on the facts of the case. Hence, first submission of Mr. Sidhu is rejected.

(4). We are unable to subscribe the view of the learned Single Judge. The view taken by the learned Single Judge is contrary to the binding decisions of the Apex Court and the Division Bench of this court. An identical controversy was raised before this court in Bagaram vs. State of Rajasthan & Ors. (1). The Division Bench after examining the provisions of Drainage Rules, 1957 particularly Rule 11(2) and (3) disapproved the action of S.I.O. deciding the original application with respect to change in outlet. The court observed:

``In this connection, we may also point out that the S.I.O. by converting himself into an original authority has deprived the aggrieved party of a right of appeal. The argument that because the S.I.O. 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 D.I.O. 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 S.I.O. In our opinion, there has been a violation of sub-rules (2) & (3) in this case and consequently, the orders passed by the S.I.O. as an original authority on the recommendation of the D.I.O. cannot be sustained.

(

Click Here to Read the rest of this document