RAFIQ, J. - (1.) MOHARCHY ended, titles derecognized and privy purses abolished, but the imprints of royalty still survive in the covenants entered into between the Rules of the Princely States and the Government of the Dominion of India before "we THE PEOPLE OF INDIA" gave unto ourselves, the Constitution of India.
(2.) PRESENT one is an appeal at the instance of Rajmata Krishna Kumari, widow of His Late Highness Maharaja Shri Hanwant Singhji of Jodhpur challenging the judgment dated 27. 7. 1994 passed by learned Single Judge of this Court whereby her writ petition was dismissed. In the writ petition, the appellant prayed for quashment of the order of the Government dated 30th Nov. , 1991 and that of the Executive Engineer dated 1st Oct. , 1992, by both the which, the respondents declined to continue free water supply for irrigation purposes to `sadari Garden' situated at Sadari to the appellant till outstanding dues towards irrigation charges were paid and also for quashing the demand notice dated 30th Oct. , 1992 calling upon the appellant to pay outstanding amount and upon failure to do so threatening attachment of the `sadari Garden. ' The case as originally set up by the appellant in memorandum of writ petition is that at the time of merger of former State of Jodhpur with the Government of the Dominion of India, a list of private properties of Late His Highness Maharaja Shri Hanwant Singhji was settled by the Government and was conveyed by a collateral letter dated 24th March, 1949, which in the writ petition has been referred to as the `list of private properties' and/or `inventory'. According to the appellant, this Inventory included `sadari Garden' and in the note appended thereto, provided for maintenance of the existing arrangement in regard to free supply of water to the said garden. Photocopy of the relevant extract of the Inventory pertaining to `sadari Garden' has been placed on record. According to the appellant, similar arrangement was made in the Inventory in respect of `balsamand Garden' and Palace situated at Jodhpur. The relevant extract of Inventory pertaining to this property has also been placed on record. It has been stated that Government of Rajasthan vide its decision dated 9th July, 1979 confirmed that the Ex-Ruler was entitled to free supply of water for `balsamand Garden. ' Copy of extract of the proceedings of a meeting chaired by Chief Secretary of the State of Rajasthan dated 9th July, 1979 has also been placed on record to substantiate this assertion. It has been stated that `sadari Tank' and `sadari Garden' were established by His Late Highness Maharaja Shri Takhat Singhji Sahib, the Ruler of the Erstwhile State of Jodhpur about 125 years ago and `sadari Garden' is comprised of Khasra Nos. 4670, 4664, 4667, 4672, 5690, 5692, 5694, 5695, 5696, 5699, 4665, 4668, 4669, 4671, 4673, 5678, 5679, 5691, 5693, 5697 and 5700 aggregating to 26. 34 hectare (i. e. 171 Bighas 17 Biswas, Nahri/barani land and 3. 47 hectares are Chahi land and the rest is Gair Mumkin land ). It is bounded by a Pakka boundary wall. The property of `sadari Garden' was received by the appellant from her late husband Maharaja Shri Hanwant Singhji in "haath Kharcha" and since then she has been in its cultivatory possession. After the said demise of the appellant's late husband Maharaja Shri Hanwant Singhji, their only son Maharaja Shri Gaj Singhji was duly recognized as Ruler of the former State of Jodhpur by His Excellency the President of India. `sadari Garden' was mutated in the name of the appellant vide order of the Tehsildar, Desuri dated 11. 1. 1972. This garden has been receiving free supply of water for irrigation of cross and trees sowed and planted therein from the adjacent `sadari Tank' even prior to merger of the State of Jodhpur in the year 1949. It has been stated that pursuant to the entry in the Inventory, refered to above, the State Government has always been making supply of water to `sadari Garden' for irrigation purposes free of charge by reserving requisite quantity of water in `sadari Tank'. After lapse of 31 years now the Irrigation Department of the State suddenly issued a communication dated 25. 7. 1989 to the appellant requiring her to pay irrigation charges for supply of water from Vikram Samwat 2016. The appellant responded to the said communication by representation dated 18. 10. 1989 in which it was pointed out that she was entitled to receive supply of water for irrigation purposes for `sadari Tank' free of charge according to the terms and the stipulation contained in the Investory/list of private properties. Although, the respondents continued to supply water free of charge, at the same time however they demanded irrigation charges by order dated 19. 2. 1991 and 12. 12. 1991. When the appellant represented to the Government, the Asstt. Secretary to the Government in its Department of Irrigation by communication dated 30th Nov. , 1991 required the appellant to pay irrigation charges and stated that the matter could be processed further only thereafter. The appellant thereupon submitted representations to the Irrigation Minister on 25. 1. 1992 and 29. 2. 1992. The State Government vide its letter dated 7th May, 1992 called for the comments from Superintending Engineer, Irrigation Department, Pali, which he forwarded by his letter dated 20th June, 1992. In his comments, he informed the Government that water was being supplied from `sadari Tank' to `sadari Garden' from before the year 1949 and since there was a provision in the Covenant for supply of water free of charge to the entire `sadari Garden', there was no question of granting fresh permission by the Irrigation Department for supply of water. In view of the comments offered by the Superintending Engineer, the appellant had every reason to believe that the matter with regard to realization of irrigation charges would now be dropped and water supply would be continued further without insisting upon payment of charges. She was however surprised to receive a letter dated 30th Oct. , 1992 from Ziledar, Irrigation Block, Pali, threatening attachment of her property, in case arrears of irrigation charges were not paid. Reference has been made to a meeting of the Water Distribution Committee convened by the Executive Engineer, Irrigation Division, Pali on 23rd Sept. , 1992 which was attended by Manager of the appellant on her behalf. He was informed in the meeting that if the payment of outstanding amount of charges was not made, supply of water would be discontinued. The appellant then immediately sent a telegram to the Irrigation Secreatary of the Goverment of Rajasthan demanding withdrawal of the notice and continuation of free supply of irrigation water. The respondents however illegally stopped free supply of water to `sadari Garden' with effect from 1st Nov. , 1992. It was against the backdrop of these facts the writ petition was filed with the aforementioned prayers.
(3.) THE respondents contested the writ petition by filing reply thereto. THE fact with regard to the note appended in the Inventory regarding maintenance of existing arrangement for free supply of irrigation water to `sadari Garden' was not denied. THE respondents however asserted that such free supply of water was intended to be only made for horticulture purposes and not for agricultural purposes, whereas the land in question was being used for agricultural purposes and therefore the appellant was liable to make payment of irrigation charges as per the prescribed rates. It has been contended that Inventory/list of private properties does not entitle appellant to get supply of water free of charge for agricultural purpoes. THEre is no mention in the Investory about free supply of water to the crops sowed in the `sadari Garden'. THE appellant has not cleared the outstanding dues of irrigation charges for the period from 1961 to 1985 in spite of demand raised in this behalf respectively on 25. 7. 1989, 19. 2. 1991 and 12. 12. 1991. It has been stated that the Executive Engineer, Irrigation Division, Pali was perfectly justified in requiring the appellant to first deposit arrears of irrigation charges before supply of irrigation water could be continued further by his communication dated 1st Oct. , 1982 on the basis of decision taken in Water Distribution Committee. The respondents in the reply have expressed their readiness to resume water supply, if all dues are paid. Reference has been made to Khasara Girdhawaris of the years starting from 1961 to 1985, which indicate that crops of barly, wheat, gram, peas, rajka, methi and mustered were sowed during these years. Case of the respondents in sum and substance was that although `sadari Garden' was a private property of the appellant but Inventory and List of private properties does not confer any right on the appellant to claim free supply of irrigation water for agricultural purposes as part of their right to hold `sadari Garden'. It was neither any legal right of the appellant nor was it any fundamental right of her and therefore it was prayed that the writ petition be dismissed. The writ petition was dismissed on 27. 7. 1994 by the learned Single Judge on the premise that it raises seriously disputed questions of facts, which cannot be decided in writ jurisdiction and that the petitioner may, if so advised, resort to alternative remedy of a civil suit since the matter relates to construction of a document for which evidence is required. ;