RAJASTHAN HIGH COURT

                   Rakesh Ink Industries

                   Vs.

                   State, (Rajasthan)

                   C.W.P. No. 2083 of 2002
                       (Prakash Tatia, J.)

                   26.02.2003

                   ORDER

Prakash Tatia, J.

1. Heard learned counsel for the parties finally.

Brief facts of the case are that the petitioner firm was granted license by the Executive
Engineer for excavation of the sand from the land for brick kiln for a period of five
years on 24th May, 2000. Copy of the license is placed on record as Annexure 1. On
5th March, 2002, the Assistant Secretary to the State Irrigation Department conveyed
to the respondent No. 2, approval of water supply to the petitioner for the purpose of
brick kiln in Chak No. 2J Bada in the name of Rakesh Cement Udhyog to the extent
of Order 03 cusecs for a period of 2 years on the condition that the petitioner will be
bound by the conditions imposed by the State Government. Copy of this order is
Annex. 2.

2. It is alleged that the respondent can charge the amount for water supplied to the
petitioner in accordance with the Item No. 1 of Schedule I of the Rajasthan Irrigation
and Drainage Rules, 1955 only whereas the petitioner is being compelled to pay Rs.
20/- per 1,000 cubic feet of water supply, treating the water supply to petitioner in
category of water supply in bulk for industrial purposes under Item No. 5(a) of
Schedule I. It is said that an affidavit was obtained from the petitioner firm that the
petitioner would pay the rate fixed by the State Government and if the rate are charged
@ 20/-, then the petitioner would pay the same. According to the petitioner, such
demand is absolutely illegal and contrary to law. The Division Bench of this Court has
already settled the controversy in the case of Rajendra Kumar Goyal v. State 1
wherein it has been held that the brick making is a specific item under Schedule I of
the Rules of 1955 and the rates of water supply can be charged only in accordance
with the rates given in Item I of Schedule I only. Therefore, according to learned
counsel for the petitioner, once the Division Bench of this Court has already decided
the matter that water supply for the purpose of brick making and pise wall building is
in a specific category then the respondents cannot create a demand or ask for payment
by treating the water supply in general category by including this water supply in the
category provided for industrial supply.

3. Learned counsel for the respondents submits that when the Division Bench decided
Rajendra Kumar Goyal's case, the Rule 14 of the Rules of 1955 was not brought to the
notice of the Division Bench and therefore, that judgment has no application to the
present case.

4. Learned counsel for the respondents further submits that Entry No. 1 of the
Schedule I is applicable to the temporary supply of water for brick making and pise
wall building and the regular supply of the water for brick making and pise wall
building falls in the Rule 15 of the Rules of 1955.

5. Learned counsel for the respondent relied upon sub-clause (f) of the Section 32 of
the Rules of 1955 and submitted that, in view of the said provisions, no writ of any
nature including the mandamus can be issued against the State for supply of water and
therefore, the writ petition of the petitioner deserves to be dismissed.

6. After considering the submission made by learned counsel for the parties, the
submission of learned counsel for the respondents, that the relevant provisions of law
were not brought to the notice of the Division Bench when the Division Bench
decided the case of Rajendra Kumar Goyal (2002 WLC (Raj) (UC) 194), deserves to
be rejected simply because of the reason that when the Division Bench has
categorically held that the supply of water for brick making and pise wall building
falls in Item No. 1 of the Schedule I, it is required to be presumed that the Division
Bench looked into the entire Rules. The reasoning given by the Division Bench in its
judgment itself makes it clear that the brick making and pise wall building is a
specific entry Item I in the schedule I whereas the Entry No. 5 in the Schedule I of the
Rules of 1955 is more of general nature, which is clear from a bare reading of the
above entries in the Schedule I of the Rules of 1955. The brick making and pise wall
building may fall in under term of "industrial purpose" but when the legislature in its
wisdom made a separate entry for specific item in the Schedule I of the rules 1955,
then it is given purposefully to exclude it from the Item No. 5 of the Schedule I of the
Rules of 1955. The "Industrial purpose" is genus and the "water supply for Brick
Kiln" is species of the genus Industrial purpose. Former include latter but latter cannot
include former in it. Learned counsel for the respondents tried to make a different
distinction by saying that, in case a temporary water supply is given for brick making
and pise wall building, this will fall in Item No. 1 of the Schedule I. Such arguments is
not supported by any of the provisions or rules. Learned counsel for the respondents
wants to insert words "temporary water supply for" before the words used in the Entry
No. 1 of the Schedule I to make a limited purpose of the Entry No. 1, which is not
permissible.

7. The submission of the learned counsel for the petitioner on the basis of Rule 15 is
also devoid of any force. The Rule 15 of the Rules of 1955 has no application at all to
the point in controversy because it provides only the requirement of previous
permission of the Divisional Irrigation Officer (Executive Engineer) for getting water
supply for filling the tanks and for getting the supply of water from the tank and canal
for purposes other than irrigation. The Rule 15 has no relevance for the purpose of
charging the rate for supply of water for brick and pise wall building under the
category of Item No. 5 of the Rule 1. Even in Rule 15 of the Rules of 1955 itself it is
clearly mentioned that for this purpose also Irrigation Officer can charge the rate
mentioned in the Schedule I only. It nowhere gives arbitrary power of charging of rate
for water supply or empowers authority to put one category of water supply in another
category of water supply for the purpose of charging the rates for water supply
contrary to schedule.

8. The arguments of learned counsel for the respondents that no writ can be issued for
direction for supply of the water in view of the sub-clause (f) of the Section 32 of the
Rules of 1955, appears to be absolutely misconceived. No rule can take away or
control, the power of the High Court, which is available under Article 226 of the
Constitution of India. Apart from this, sub-clause (f) of Section 32 nowhere puts any
restriction upon the Court as suggested by learned counsel for the respondents. The
sub-clause (f) of the Section 35 merely provides that the State Government is not
bound to supply water except in accordance with the terms of the Contract in writing.
It is nobody's case that anybody asked for supply of water without observing the
procedure provided in the Act and Rules. The question is whether the respondent-
State or the Irrigation Authorities can demand rates for water supply for brick kiln
contrary to what is not permissible under the Rules? The answer will certainly be in
negative. The contention raised on behalf of the State appears to be not only
misconceived, but it appears to be only result of arrogant attitude of the State by
saying that the State cannot be directed to supply water. The State authorities are
bound to act fairly and are bound to follow the Rules and therefore, any demand in
excess, than the rate prescribed in the Rules and Act from the petitioner, cannot be
justified even by invoking powers of the State Government in sub-clause (f) of the
Section 32 of the Rules of 1955.

9. In view of the above reasons, the writ petition of the petitioner deserves to be
allowed and hence, allowed. The respondents are directed to provide supply of water
by charging the rate for water supply to the petitioner for the purpose of brick making
at the rate mentioned in Item I of the Schedule I of the Rules of 1955 and are
restrained from charging any higher rate on the basis of entry No. 5 of the Schedule I
annexed to the Rules of 1955 from the petitioner. The petitioner is also entitled for the
costs.

Petition allowed.

Cases Referred.

1. (DBC Spl. A. (W) No. 697/2001)