RAJASTHAN HIGH COURT

                      Rajendra

                      Vs.

                      State of Rajasthan

                      C.W.P. No. 4328 of 2003
                       (Sunil Kumar Garg, J.)

                      13.04.2004

                      ORDER

Sunil Kumar Garg, J.

1. The petitioner has filed the present writ petition under Article 226/227 of the
Constitution of India on 6-8-2003 against the respondents with a prayer that by an
appropriate writ, order or direction the order dated 7-7-2003 (Annex. 6) passed by
respondent No. 2 (Superintending Engineer, Irrigation Circle, Hanumangarh Junction)
by which the Superintending Engineer (respondent No. 2) dismissed the appeal
(Annex. 3) filed by the petitioner against respondent No. 4 (MadanLal) and upheld the
order dated 3-1-2002 (Annex. 2) passed by the respondent No. 3 (executive Engineer,
Irrigation Division-II, Hanumangarh) by which respondent No. 3 (Executive
Engineer) allowed the application filed by respondent No. 4 (MadanLal) and
sanctioned another Naka (drain) from the khasra No. 512/434 belonging to the
petitioner for supplying water to his agricultural field situated in Khasra No. 513/434
be quashed and set aside.

2. The facts of the case as put forward by the petitioner are as under:

(i) That the petitioner and respondent No. 4 (MadanLal) both are neighbourers
having adjacent agricultural fields to each other and doing farming on their
field. The land bearing khasra No. 512/434 belongs to the petitioner and the
land bearing khasra No. 513/434 belongs to the respondent No. 4 (MadanLal).

(ii) Further case of the petitioner is that water to the field of respondent No. 4
(MadanLal) is supplied from Pakka Drain (Naka) made in the outskirts of
petitioner's khasra No. 512/434 from north to south and respondent No. 4
(MadanLal) wanted a new drain (Naka) cutting across through the field of the
petitioner from midway from west to east for irrigating his field, whereas he
was already getting sufficient water to his field from old Naka (drain).

(iii) Further case of the petitioner is that the respondent No. 4 filed an
application before the Executive Engineer, Irrigation Division II, Hanumangarh
(respondent No. 3) praying for sanction and construction of new additional nake
(drain) for supplying water to his agricultural field bearing khasra No. 513/434.

(iv) Further case of the petitioner is that the respondent No. 3 (Executive
Engineer, Irrigation Division-II, Hanumangarh) did not issue notices to the
petitioner and called technical report from the concerned Assistant Engineer,
Irrigation and without complying with the provisions of Rajasthan Irrigation and
Drainage Act, 1954 (hereinafter referred to as the Act of 1954) through
impugned order dated 3-1-2002 (Annex. 2) allowed the application filed by
respondent No. 4 (MadanLal) and sanctioned new Naka (drain) from the field of
the petitioner bearing Khasra No. 512/434.

(v) Further case of the petitioner is that petitioner filed an appeal (Annex. 3)
under Rule 11 of the Rajasthan Irrigation and Drainage Rules, 1955 (hereinafter
referred to as the Rules of 1955) before the Superintending Engineer, Irrigation,
HanumangarhJunction (respondent No.l 2) against the impugned order dated 3-
1-2002 (Annex. 2).

(vi) Further case of the petitioner is that before the appeal was decided, the
respondent No. 4 (MadanLal) entered into compromise dated 11-6-2003
(Annex. 5) and the said compromise (Annex. 5) was duly executed on stamp
paper and attested by a notary advocate and in that compromise dated 11-6-
2003 (Annex. 5), the respondent No. 4 (MadanLal) withdraw his demand for
additional Naka in Khasra No. 512/434.

(vii) Further case of the petitioner is that the respondent No. 4 (MadanLal) later
on rejected the compromise (Annex. 5) and withdrew himself from the
compromise (Annex. 5).

(viii) Further case of the petitioner is that respondent No. 2 (Superintending
Engineer) without taking notice of the compromise (Annex. 5) through order
dated 7-7-2003 (Annex. 6) rejected the appeal filed by the petitioner and upheld
the order dated 3-1-2002 (Annex. 2) passed by the respondent No. 3 (Executive
       Engineer).

       (ix) After being aggrieved from the order dated 3-1-2002 (Annex. 2) passed by
       the respondent No. 3 (Executive Engineer) and order dated 7-7-2003 (Annex. 6)
       passed by respondent No. 2 (Superintending Engineer), this writ petition has
       been preferred by the petitioner.

3. In this writ petition, the following two contentions have been raised by the learned
counsel for the petitioner:

       (i) That the Executive Engineer (respondent No. 3) passed the impugned order
       dated 3-1-2002 (Annex. 2) without giving opportunity of hearing to the
       petitioner and hence the order dated 3-1-2002 (Annex. 2) passed by respondent
       No. 3 (Executive Engineer) is violative of principles of natural justice.

       (ii) That since compromise (Annex. 5) dated 11-6-2003 was executed between
       the petitioner and respondent No. 4 (MadanLal), therefore, in view of that fact,
       the respondent No. 2 (Superintending Engineer) should have allowed the appeal
       (Annex. 3) and hence the judgment dated 7-7-2003 (Annex. 6) passed by
       respondent No. 2 (Superintending Engineer) is bad in law and deserves to be set
       aside.

4. Reply was filed by respondents No. 1 to 3 and their case is that father of the
petitioner Shri Ram Rakh and other farmers including respondent No. 4 (MadanLal)
entered into a compromise (Annex. R/1) and in view of that fact, the impugned order
dated 3-1-2002 (Annex. 2) was passed by the respondent No. 3 (Executive Engineer)
and not only this, thereafter opinion of the expert was also obtained and after receiving
expert's opinion and after giving an opportunity of hearing to all the concerned parties
and after taking into consideration the compromise (Annex. R/1), the impugned order
dated 3-1-2002 (Annex. 2) was passed by the Executive Engineer (respondent No. 3)
and hence to say that no notice was issued to the petitioner is wrong. It has also been
submitted by the learned counsel for the respondents that Khasra No. 512/434 is in the
name of father of the petitioner in the Revenue Record and he did not raise any
objection and further more all the concerned persons gave their consent (Annex. R/4)
for the purpose of construction of additional Naka (drain). So far as point that
respondent No. 4 was getting sufficient water is concerned, it has further been
submitted by the learned counsel for the respondents that there is technical report
(Annex. R/5) of the Junior Engineer wherein it was recommended that new Naka be
sanctioned in Khasra No. 512/434 and hence no case is made and writ petition be
dismissed.

5. So far as first objection is concerned, in the impugned order dated 3-1- 2002
(Annex. 2) passed by the Executive Engineer (respondent No. 3), there is clear
mention of the fact that notices were issued to all the concerned persons on 28-7-2001
and all the concerned persons were informed on 2-8-2001 and nobody raised by
objection. Apart from this, from the reply of the respondents, it is also clear that notice
Annex. R/3 was issued to all the concerned persons and further more the compromise
(Annex. R/1) and consent letter (Annex. R/4) reveal that the concerned persons did not
have any objection on the point that new Naka be opened in the field on Ram Rakh
(father of the petitioner) in Khasra No. 512/434 and therefore, the first argument that
the impugned order dated 3-1-2002 (Annex. 2) was passed by the Executive Engineer
(respondent No. 3) without giving opportunity of hearing to the petitioner stands
rejected.

6. So far as second point is concerned, no doubt that the respondent No. 4 (MadanLal)
entered into compromise dated 11-6-2003 (Annex. 5), but the petitioner himself has
stated in the writ petition that before passing the impugned order dated 7-7-2003
(Annex. 6) by the respondent No. 2 (Superintending Engineer), the respondent No. 4
(MadanLal) withdrew himself from that compromise (Annex. 5) and this fact was
found mentioned in the judgment dated 7-7-2003 (Annex. 6) in which the respondent
No. 2 (Superintending Engineer) has observed that the consent which was given by
the respondent No. 4 through compromise dated 11-6-2003 (Annex. 5) was withdrawn
by respondent No. 4 (MadanLal) through application dated 3-7-2003 and therefore, to
say that there was compromise between the parties cannot be accepted. Since the
respondent No. 4 (MadanLal) withdrew himself from the compromise dated 11-6-2003
(Annex. 5) before passing the judgment dated 7-7- 2003 (Annex. 6), therefore, that
compromise dated 11-6-2003 (Annex. 5) would not be helpful to the learned counsel
for the petitioner and thus, the second argument raised by the learned counsel for the
petitioner stands rejected.

7. The discretion exercised by the respondent No. 2 (Superintending Engineer) in
rejecting the appeal (Annex. 3) filed by petitioner is just and proper and does not
require any interference by this Court under Article 226/227 of the Constitution of
India.

8. Under Article 227 of the Constitution of India, the High Court cannot interfere with
the exercise of a discretionary power vested in the inferior Authority, Court or
Tribunal, unless its finding or order is clearly perverse of patently unreasonable.

9. It may be stated that High Court's power under Article 226/227 of the Constitution
of India should be exercised only when there is dereliction of duty and flagrant
violation of law and should be exercised most sparingly in a case where grave
injustice would be done unless the Court interferes. It cannot be used as appellate or
revisional forum. Apart from this power under Article 226 is exercised by the Court in
its discretion and cannot be claimed as of right by any party.

10. Thus, the impugned order dated 3-1-2002 (Annex. 2) passed by the respondent
No. 3 (Executive Engineer) and judgment dated 7-7-2003 (Annex. 6) passed by the
respondent No. 2 (Superintending Engineer) cannot be said to have been suffered from
the basic infirmity and illegality and the same does not require any interference by this
Court under Article 226/227 of the Constitution of India and this writ petition deserves
to be dismissed.

For the reasons mentioned above, the present writ petition is dismissed.

Petition dismissed.