KAN SINGH, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution by one Mahima Singh and 9 others questioning the legality of an order Ex. 3, made by the Minister of the State for Irrigation Shri Manphool Singh Choudhary ordering the stopping of exchange of the tube well water with the water of the canal distributary and ordering the dismantling of the outlet therefor. The petitioners have prayed for an appropriate writ, direction or order commanding the respondents to restore the exchange of water supply to the petitioners and not to otherwise interfere with the right created in favour of the petitioners. The relevant facts emerging from the writ petition may be stated as follows:
(2.) THE petitioners are the owners of agricultural land in Chak 5 'o', in Tehsil Karanpur, District Ganganagar. THEir lands were served by a distributary 'o' Minor which takes water from 'f' Distributary of the Gang Canal. THE petitioners' lands were getting water from this Distributary like other land-holders on usual terms. According to the petitioners, the Indus Water Treaty between India and Pakistan resulted in diminution of the water supply available for the Gang Canal which brings water from Beas-Sutlej through various Headworks to Ganganager. For meeting the situation created by this reduction the Government of Rajasthan devised a scheme of augmenting the available supply. Petitioners proceed to say that on 18-12-63 there was a conference in the chamber of the then Agriculture and Irrigation Minister of Rajasthan and as a result of its deliberations it was thought that if a series of tube welis were set up along both sides of the Canal the water supply could be augmented. For implementing the suggestion the Government constituted a Committee of Officers namely, Director of Agriculture, Additional Chief Engineer, Irrigation, Additional Chief Engineer, Rajasthan State Electricity Board, the Superintending Engineer, Irrigation Ganganagar and the Deputy Director of Agriculture, Ganganagar. This committee of officers ultimately submitted a report and it was mentioned therein that some private tube wells had already been successfully sunk and for encouraging the augmentation of the available supply persons should be encouraged to sink more tube wells on their lands at their cost. However, it was felt that in order to remove uncertainty about availability of sweet water measures should be devised and in the event of brackish water being struck instead of sweet water, the brackish water should be accepted by the Government and in lieu thereof sweet water should be made available from the canal for cultivation. THE details of the scheme proposed were, however left to be worked out in due course, Petitioners maintain that in view of the suggestion made by the Committee it was decided that in Chak 5 'o' also five tube welis be sunk near 'o' Minor. Petitioners claim that it was on this clear understanding that, if brackish water be found in the wells to be sunk by them on their lands the same would be exchanged with canal water of equivalent quantity that the petitioners, had sunk a tube well on their land and then entered into an agreement with the Government. I will have occasion to deal with the terms of the agreement in the course of this judgment. THE petitioners go on to state that on 2-6-64 the Superintending Engineer, Irrigation, Ganganagar had written to the Executive Engineer, Gang Canal that brackish water from private tube wells be exchanged with the canal water. THE high-lights of that letter were that the policy of exchanging brackish water from tube wells had been accepted by the Government and accordingly arrangements be made for exchange of water from the tube wells on measured basis and for this a separate outslet be provided for the sweet water of the canal to be delivered to the fields to be irrigated from the tube wells and the link water courses from the canal to the tank and tank to the canal be also constructed. Further the outlets shall be having logging arrangements and Log Books shall be maintained for recording the timings when such outlets shall be opened and closed. THE Executive Engineer was further desired to check up the discharge of each tube well and also to propose the proposals forms for the exchange outlets. THE discharge was to be personally checked up by the Executive Engineer. It was contemplated that the discharge from the tube wells would be restricted to 10% of the total authorised discharge of each channel so that the salinity of the canal water remained within permissible limits. According to the petitioners, provision was also made for giving financial aid to those farmers who would be sinking tube wells in their fields within the command area of the Gang Canal, but it is not necessary for the purposes of this case to advert to the financial arrangements. THE petitioners submit that in view of the scheme and as per the advice of the Rajasthan Underground Water Board they sunk a tubewell on their land and invested a substantial amount of Rs. 50,000/ -. THEy also executed an agreement with the Rajasthan State Electricity Board undertaking to consume electric energy of the value of Rs. 10,000/-annually in working the tube wells and accordingly the electric installations were set up for the working of the tube wells. In pursuance of this arrangement the Divisional Irrigation Authorities established a water course on the petitioners' land as an exchange outlet for the exchange of tube wells water with the sweet water of the canal after chemical tests. THE case of the petitioners is that after this water course was constructed the tube wells of the petitioner started functioning from about December, 1964. It is thereafter, that, according to the petitioners, their trouble started. THE party of the petitioners had fallen out with one Shri Gurdeep Singh who had stood as a candidate for Rajasthan Legislative Assembly and one of the petitioners Bagh Singh also stood as a candidate. Shri Gurdeep Singh won the election but, according to the petitioners, he wanted to wreak vengeance on the petitioners for the opposition offered by them at the time of elections. Shri Gurdeep Singh animated by this ill will was alleged to have written a letter to the Government complaining that the water of the tube well that was being mixed with canal water and which was being utilised for agricultural purposes by the cultivators down the channel 'o' Minor and by the Municipality of Karanpur for drinking purposes of the inhabitants was proving a health-hazard on account of excessive salinity above the usual standards. It was on this letter that eventually Shri Manphool Singh Choudhary, Minister of State, came to order the Executive Engineer, Gang Canal, Irrigation as per Ex. 3. Before this, according to the petitioners, there were some complaints which were engineered against them and on 30. 6. 65, after getting the water chemically analysed, the Chief Engineer, Irrigation had reported to the Government that the complaint was an inspired one and there was absolutely no fear of any contamination of supply of water. On 27. 2. 67, the Executive Engineer, Gang Canal Division, Ganganagar wrote to say that there were complaints from Municipal Board, Karanpur as well as from other cultivators regarding exchange of brackish water allowed in Chak 5 'o' and accordingly the petitioners were served with the notice to suspend forthwith the exchange of brackish water without prejudice and they were directed to have chemical analysis of water afresh and submit the result thereof to the Executive Engineer. THE petitioners' supply of water was then stopped. THE petitioners went on representing and then the supply was resumed eventually upto 15-4-67. THEse orders, according to the petitioners, were passed by the Government on an application of Shri Gurdeep Singh and ultimately on 28-12-67 Shri Manphoolsingh, Minister of State passed the impugned order. A copy of the telegraphic order in question was endorsed by the Technical Asstt. to the Superintending Engineer, Bikaner Irrigation Circle, Ganganagar, to the Sub-Divisional Officer, Sri Karanpur with copies to Executive Engineer, Gang Canal Division and it was mentioned in the endorsement of the last mentioned that he was to comply with the Minister's order and report compliance. In the result, the supply of water to the petitioners came to be stopped. THE petitioners then approached the Collector, Ganganagar to use his good offices for getting the supply restored as otherwise their standing crops would be destroyed. On the petitioners' representation the then Collector, Ganganagar addressed a letter to the Executive Engineer on 26. 12. 67 asking him for a report and pending that he was desired to effect the exchange of water to the tubewell, unless there were extraordinary strong technical reasons for discontinuing the exchange of water. In reply to the Collector's letter the Executive Engineer on 28. 12. 67, wrote to say that the water course had been stopped in pursuance of the orders of the State Minister for Irrigation received by the Executive Engineer through the Superintending Engineer. Petitioner then approached the Superintending Engineer protesting against the closure of the outlet of the tube well and that also made a representation to the Minister for Irrigation, but that did not bring any result. However, on 30. 1. 68 on petitioners' persistent efforts the Superintending Engineer, Bikaner Irrigation Circle addressed a letter to the Executive Engineer, Gang Canal Division, Ganganagar that he may provisionally allow the petitioners quantity of sweet water equivalent to 50% of the tube well discharge without discharging the saline water into the canal. It was further desired by the Superintending Engineer that the tube well water be tested by the Public Health Engineering Research Institute and the result of the chemical analysis be intimated to the Chief Engineer for prescribing the normal for exchange of tube well water with canal water. Thus the reduced supply continued till the end of April 1968. Petitioners further sumbit that one Shri K. L. Saxena, Scientist Incharge, who had done chemical analysis of the sample of water of the tube well, had reported that the water was fit for cultivation as well as human consumption. THE petitioners grievance is that inspite of this report the water supply was not being restored and they were suffering huge losses on account of their commitments with the Rajasthan State Electricity Board as also on account of the investments made by them on the land. THE petitioners add that four other persons had sunk tube wells on their respective lands, but their supply was not being stopped and the petitioners had been discriminated against on account of their animosity with Shri Gurdeep Singh, M. L. A. and Shri Man-phool Singh. In assailing the order of the Minister it is contended that the Minister or for that matter the State Government themselves had no authority under the Rajasthan Irrigation and Drainage Act, 1954, hereinafter to be referred the Act, as also the Rules there under to order the stoppage of supply of water to the petitioners' land. It is pointed out that according to the provisions of the Act and the Rules it is the Divisional Irrigation Officer who alone is competent to reach the conclusion whether the supply should be stopped under the stated conditions and he is not to be guided by any order or direction of the State Government or the Minister in that the powers to be exercised by the Divisional Irrigation Officer are his statutory powers. It was next contended that the petitioners on the faith of the Government's sponsoring a scheme of augmenting the available water supply of the Gang Canal and on the assurances extended by the Government had invested a substantial amount of Rs. 50000/-in sinking the tubewells and had also entered into a commitment for consuming electricity from the Rajasthan State Electricity Board and had also put up electric installations for the purpose. Therefore, in the circumstances the petitioners had equities in their favour and before disturbing the equities it was the bounden duty of the competent authority to make a proper investigation of the circumstances justifying the change in the position and before making such investigations or enquiry it was not open to the respondents to disturb or modify such equities emerging from the agreement with the Government as also the scheme sponsored by the Government. The writ petition has been opposed by the respondents. It is denied by the respondents that the orders issued by the Minister of State for Irrigation was invalid on any of the grounds mentioned by the petitioners. According to the respondents, this was a Government order and the Minister for State was competent to pass the same. The respondents maintain that the exchange of brackish water of the petitioners' tubewell with the sweet water of the 'o' Minor, a Government Distributory, was in the nature of a concession and according to the terms of the agreement itself this concession could be withdrawn by the Government at any time and the petitioners could not be heard to complain the same, as it was clearly understood by them that they would not be entitled to any compensation or damages if the exchange were to be stopped by the State Government. It is further submitted that the Government had never agreed that brackish or saline water in all cases be exchanged with the canal water and as it was found that the salinity of the water received from the petitioners' tubewell was of such a degree as was proving a health-hazard. According to the respondents, the water was tested by them from the sedimentation tanks of the Water Works at Karanpur and it was found that according to the salinity it was not fit for consumption and involved a health-hazard. It is also denied by the respondents that Shri Gurdeep Sing or Shri Manphool Singh bore any ill will against the petitioners and it is stated that it was only on account of the water from the petitioners' tubewell being found to be injurious that respondents had to stop the exchange of water. According to the respondents, on 1-12-67, the petitioners were told by the Executive Engineer that the exchange of water may have to be stopped and, therefore, the petitioners should cultivate only so much of crops as would be matured by the ordinary supply of water. In short, according to the respondents even though the Government was not bound to supply any more canal water or to exchange the canal water with the tubewell water, as a concession they supplied the quantity of water from the canal equivalent to the 5% of the discharge from the tubewell for the Rabi crop without accepting any corresponding supply from the tubewell and as the crops had matured and had been harvested in April 1968 the concession allowed to the petitioners was withdrawn. In the course of arguments on 25-2-69, for ascertaining the true nature of the supply of water, I enquired from learned counsel for the petitioners as to whether the petitioners were required to pay or were paying for the supply of additional water from the canal, the additional supply, of course, being in lieu of the brackish water of the tubewell that would be poured in the 'o' Minor. It was orally submitted that for the additional supply of water from the channel the petitioners were being charged the usual rates as for their normal supply. As this was a material fact which had not been mentioned in the writ petition or the affidavit permission was sought by learned counsel for the petitioners to raise this supplementary plea and put in an affidavit in support thereof. Accordingly the case was adjourned and the petitioners put in the application for raising this plea and filed an affidavit in support thereof. Learned Additional Advocate General had also submitted his reply to this application. It is admitted by him in his reply that for the additional supply made from the Distributory to the petitioners have been charged for the same at the usual rates like normal supply. It is in the light of the above facts that the case falls to be considered. Before addressing myself to the points arising in the case, I may briefly refer to the relevant provisions of the Act and the Rules. The Act was passed by the Rajasthan State Legislature in 1954 with a view to regulating irrigation and drainage in the State of Rajasthan. It came into force on 1-4-56 by a Government notification. It is divided in several parts; the First part is for the definition of certain terms and for creation of territorial divisions and appointment of officer, Part II is about the application of water for public purposes; Part III is for construction and maintenance of works; Part IV is for supply of water; I may notice two sections occurring in this Part, because they are both relevant for the present purpose. Sec. 31 provides that in the absence of a written contract or so far as any such contract does not extend, every supply of water from an irrigation work shall be deemed to be given at the rates and subject to the conditions prescribed by the rules to be made by the State Government in respect thereof. I may pause to observe that according to the definition section "irrigation work" means a work or system of works, natural or artificial, not being a minor irrigation work as defined in sec. 2 of the Rajasthan Minor Irrigation Works Act, 1953, and includes inter alia any canal, channel, pipe or reservoir constructed, maintained or controlled by the State Government for the supply or storage of water. The emphasis here is that these irrigation works are constructed, maintained or controlled by the State Government. The term "water course" may also be noticed. It means any channel, not constructed and maintained at the cost of State Government, which is supplied with water from a canal, channel, pipe or reservoir and includes any subsidiary work belonging to such channel. Therefore, according to the tenor of sec. 31 the supply of water is normally to be governed by a written contract, but in the absence of any such contract it shall be deemed to have been made according to the rates and conditions laid down in the rules. Sec. 32 makes provision for certain conditions of water supply. I may read this section: "s. 32. Conditions of water supply.- Such contracts and rules must be consistent with the following conditions: (a) The Divisional Irrigation Officer may not stop the supply of water to any water course or to any person, except in the following cases; (i) whenever and so long as it is necessary to stop such supply for the purpose of executing any work ordered by competent authority and with the previous sanction of the State Government; (ii) whenever and so long as any water-course is not maintained in such proper customary repair as to prevent the wasteful escape of water therefrom; (iii) within periods fixed from time to time by the Divisional Irrigation Officer. (b) No claim shall be made against the State Government for compensation in respect of loss caused by the failure or stoppage of the water in an irrigation work by reason of any cause beyond the control of the State Government, or of any repairs, alterations or additions to the irrigation work or of any measures taken for regulating the proper flow of water therein, or for maintaining the established course of irrigation which the Divisional Irrigation Officer considers necessary; but the person suffering such loss may claim such remission of the ordinary charges payable for the use of the water as is authorised by the State Government. (c) If the supply of water to any land irrigated from an irrigation work be interrupted otherwise than in the manner described in the last preceding clause, the occupier or owner of such land may present a petition for compensation to the Collector for any loss arising from such interruption, and the Divisional Irrigation Officer may award to the petitioner reasonable compensation for such loss. (d) When the water of an irrigation work is supplied for irrigation of a single crop, the permission to use such water shall be held to continue only until that crop comes to maturity and to apply only to that crop; but if it be supplied for irrigating two or more crops, to be raised on the same land within the year, such permission shall be held to continue for one year from the commencement of the irrigation, and to apply to such crops only as are matured within that year. (e) Unless with the permission of the Superintending Irrigation Officer, no person entitled to use the water of any irrigation work, or any work, building or land appertaining to any irrigation work, shall sell or sublet or otherwise transfer his right to such use; provided that the former part of this clause shall not apply to the use, by a cultivating tenant, of water supplied by the owner of a water course for she irrigation of the land held by such tenant. But all contracts made between the State Government and the owner or occupier of any immovable property, as to the supply of water of such property, shall be transferred therewith, and shall be presumed to have been so transferred whenever a transfer of such property take place. (f) No right to the use of the water of an irrigation work shall be or be deemed to have been, acquired, under Part IV of the Indian Limitation Act, 1908 or under the Indian Easement Act, 1882, of the Central Legislature as adapted to the State of Rajasthan; nor shall the State Government be bound to supply any person with water except in accordance with the terms of a contract in writing. " I am not concerned with the other parts of the Act. Turning 'now to the Rules: the Rules came into force on 19-12-67. Rule 8 makes provision for introduction of new irrigation and it runs as follows: - ''rule 8 - Introduction of new irrigation.- In deciding the actual percentage of the cultivated area which should be adopted for irrigation for any tract the proportion of the culturable to the cultivated area, the quantity of water available for irrigation of the tract and the existing annual irrigation from masonry wells or other permanent and reliable sources should be considered. " R. 14 provides for entering into contract for supply of water for purposes other than irrigation purposes. It lays down that the Divisional Irrigation Officer may make contracts for the supply of canal water for purposes other than irrigation for any term nor exceeding one year. For terms exceeding one year the previous sanction of the State Govt, shall be necessary. Rule 17 provides for closure of water for purposes of administration, closed days and canal repairs. It provides that closure have to be notified. Rule 18 provides for stoppage of supply in improperly maintained water courses. There are provisions for assessment of water charges, preparation of records, distribution of parchas and the like. I may lastly notice one more rule, that is, R. 55 which provides for appeals. It lays down that except as is otherwise provided in the Act or in these Rules an appeal shall lie to the Divisional Irrigation Officer from any original order passed by the Sub Divisional Irrigation Officer under the Act or these rules and an appeal shall lie to the Superintending Irrigation Officer from any original order passed by the Divisional Irrigation Officer under the Act or these rules. To my mind, the following things emerge from the various provisions that I have referred to above. The Act and the Rules make elaborate provisions for supply of water from irrigation works. They also provide for the conditions of water supply, for stoppage of water supply, grant of compensation when water supply is stopped without a reason for it. They provide for hierarchy of officers and appeals are provided against all orders of the Sub-Divisional Officers and the Divisional Irrigation Officers. Primarily the State Government is not bound to supply any person with water except in accordance with the terms of contract in writing (vide sec. 32 (f) ). When there is no contract in writing and yet supply of water from an irrigation work is made, then according to sec. 31, the same shall be deemed to be given at the rates and subject to conditions prescribed by the rules to be made by the State Government in respect there of. Then all contracts of water supply or the rules made under the Act are required to be in conformity with the conditions mentioned in sec. 32 of the Act. The Divisional Irrigation Officer, who under the Act and the Rules is the proper functionary for regulating the supply of water, has been enjoined that he will not stop the supply of water to any water course or to any person except in the cases mentioned in subclause (1) of sec. 32. The words may not stop the supply of water to any water course are peremptory and the learned Additional Advocate General has very rightly not disputed this position. A perusal of clause (b) shows that the State Government is placed in a position of immunity against any compensation in respect of loss caused by the failure or stoppage of the water in an irrigation work by reason of any cause beyond the control of the State Government. Accordingly, it appears that once there is a contract for supply of water then it is only where there are circumstances beyond the control of the State Government that liability for payment of compensation on account of stoppage of water supply is excused. Perusal of clause (c) of sec. 32 shows that where supply of water to any land is interrupted otherwise than in the manner described in clause (b) of sec. 32, the occupier or owner of such land may present a petition for -compensation to the Collector for any loss arising from such interruption and the Divisional Irrigation Officer may award to the petitioner reasonable compensation for such loss. Clause (d) contemplates arrangements for supply of water from an irrigation work where permission to use such water has been given on the basis of crops where the supply is for one crop then it is enjoined that it shall continue till the crop becomes mature, but if the supply is for more than one crop then the supply is taken to be for one year. Then the provision for transfer of all contracts made between the State Government and the owner or occupier of any immovable property on the transfer of such property to the transferee shows that continuity of the arrangement of water supply between the erstwhile owner and the State Government for the benefit of the transferee is contemplated. It is in the light of the above observations that I have to ask myself the following questions and to answer them: (1) Was it open to the State Government or the Minister of State to order the stoppage of supply of water to the petitioner? here the question will arise whether the State Government had at all passed any order for stoppage of the water supply. (2) In view of the arrangements between the petitioners and the State Government do the petitioners have any equities in their favour which could be enforced by this Court? (3) Could the Divisional Irrigation Officer have stopped the water supply without finding out the equities in favour of the petitioners at the mere fiat of the Minister concerned? (4) What kind of relief should be granted to the petitioners in the circumstances appearing in the case? Petitioners have submitted that the order Ex. 3, which was the telegraphic order of the Minister cannot be said to be an order emanating from the State Government and even if this could be regarded as an order of the State Government then it was beyond the powers of the State Government. Petitioners maintain that according to the scheme of the Act the Government have not been given any powers for stoppage of water supply. I have carefully read the order Ex. 3, as also Ex. 4, which is a confirmation copy of that telegram received by the Assistant Engineer. This does not contain any order for stopping the water supply as such. What it contemplates is to stop the exchange tubewell outlet and dismantle the same immediately. For appreciating the point let me briefly advert to the nature of the arrangement between the petitioners and the State Government. According to the letter dated 2-6-64 written by the Superintending Engineer to the Executive Engineer in pursuance of the Government scheme for augmenting the water supply it was laid down that the Government have accepted the policy of exchanging brackish water from tubewells with the water from the distributory. This was to be done on measured basis and a separate outlet was to be provided for the sweet water of the canal to be delivered to the fields to be irrigated by the tubewells. Then a link channel for taking the water of the tubewell was to be provided. According to the arrangement of measurements of supplies as per the Log Book water from the channel equivalent to the discharge from each tubewell was to be supplied. Thus the arrangements looked like those for exchange of sweet water for brackish water. The Act and the Rules nowhere contemplate how any additional source for taking water in the channel has to be tapped and utilised. The entire Act and Rules are for making of supplies from irrigation works. The Act and the Rules nowhere make provision for taking of water in the channel from any source. For example, how from the head works the Punjab Government will be supplying water to Rajasthan is not a matter that is provided by the Act or the Rules. For that there must be arrangements outside the scope of the Act and the Rules. All that is provided in the Rules is that when once water from any other source is put in the channel then that becomes part of the water of the channel. Rule 30 lays down that if water from a well or any other source is conveyed in the same channel as canal water in the course of the same season, the whole of the irrigation from that channel during such season is liable to be treated as irrigation from the canal. Thus, if in this light I have to look at Ex. 1, it appears that for the talcing of brackish water from the petitioners' tubewell the agreement cannot obviously be deemed to be under the Actor the Rules. Here I may reproduce Ex. 1, "agreement I, Nishan Singh Brar son of S. Mehma Singh Brar, Chak 5-0, Tehsil Sri Karanpur, make this agreement with the Canal Department in connection with the exchange of water of my tubewell with that of the canal water and hereby agree to undertake abide by all the rules to be formed guiding the conditions of exchange of saline water of the tube well with the canal water by the Government or any other authority from time to time. The present sanction is without any prejudice and if cancelled I shall not be entitled to any damages or reward. In witness whereof I have set my hands this 15th day December, 1964 at Sri Ganganagar. " If the matter were to stand at that the position would have been easy of determination as the Act neither provides for taking of any supply of water in the canal from any other source, nor does the Act or the Rules provide for exchange of water for water as such. However, the petitioners have filed an additional affidavit showing that for the additional supply made by the Government from '0' Minor in lieu of the quantity of water supplied by the petitioners from the tubewell the petitioners were being charged the usual rates of water supply. This fact has been admitted by the Government in their reply. Therefore, now the position resolves itself to this: - The Government have been supplying additional quantity of water from the O Minor over and above the supply that is made to the petitioners for their lands like other land holders and the Government are charging the usual rates for this additional supply. The consideration for making this additional supply of water is the petitioners' sinking a tubewell on their land and their being able-to place brackish water from that well at the disposal of the Government. Now, so far as the supply of additional water to be made by the State Government is concerned, this is obviously a matter which is covered and regulated by the provisions of the Act and the Rules. So far as the taking of brackish water from the petitioners is concerned that is not a matter which is governed by the provisions of the Act and the Rules. Now the order of the Minister quoted by me above talks of stopping the exchange of water, but it is not said in so many words nor any other order of the State Government has been placed before me that additional water is not to be supplied to the petitioner even when they are paying for it. Apart from this so far as the question of stoppage of water supply from irrigation works is concerned, the State Government does not occur in the hierarchy of the officers and authorities provided in the Act or the Rules. I have referred to the provisions for an appeal against all original orders of the Sub-Divisional Irrigation Officer as well as the Divisional Irrigation Officer. Therefore, when the Legislature has taken care to provide for hierarchy of officers and for making provision for appeals it can legitimately be inferred that the State Government as such has not been assigned any function so far as the regulation of water supply itself is concerned, nor has any power been conferred on the State Government to stop any water supply from irrigation works. Such orders have to be passed primarily by the concerning Irrigation Officer and in the light of the agreement between a particular landholder and the Government. According to sec. 32 (f) while the agreement of water supply may be entered into by the State Government itself or in its name by any of its officers according to the powers delegated to them, all the same so far as the question of stoppage of water supply is concerned that is primarily governed by the terms of the agreement and it is the Irrigation Officer concerned who is to take appropriate action in the matter. In the present case, the Executive Engineer, who is the Divisional Irrigation Officer, has taken action thinking that the Minister of the State has passed the order. This shows that the Divisional Irrigation Officer who is the statutory authority under the Act and the Rules has not himself exercised his discretion, but he has acted at the behest of the State Minister. Then again, as I have already shown Ex. 3, cannot, be construed as an order for stopping the water supply even on payment. The burden of the various orders of the respondents as also their reply seems to be that the salinity of the water on account of the discharge of the brackish water of the tubewell in the canal water had increased to such an extent that it was not fit either for cultivation or for human consumption. The petitioners contest this position. However, it is not for this Court to go into this matter in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. It is primarily for the State Government or its officers to see whether the water that they have been taking is or is not useful to them, but that by itself may not be good reason to stop the additional supply of water to the petitioners, if they have equities in their favour otherwise. Petitioners have taken the stand that it was in pursuance of the scheme of the Government for augmenting the available water supply in the Gang Canal or its distributories that the petitioners, like some other cultivators, were encouraged to sink tubewells and in doing so they had invested substantial amount and had also entered into a commitment with the Rajasthan State Electricity Board for taking a minimum supply of electricity worth rupees ten thousand in a year. Now, these facts have not been seriously disputed, though the respondents have chosen of term the giving of additional supply of water to the petitioners as a concession which could in terms of the agreement be withdrawn at any time without there being any claim for compensation or damages. Once it has not been disputed that it was the Government who had sponsored the scheme of augmenting the water supply and in that connection writing of the letter dated 2-6-64 by the Superintending Engineer is not denied, there is no room to think that the petitioners, will not be having any equities in their favour. Again it is not for this Court to adjudge the equities or their effect on the course of action taken by the respondents, but it does appear that neither the Minister nor the Divisional Irrigation Officer have taken note of these equities. In a recent case Union of India vs. Anglo Afghan (l), equities arising from a scheme of promotion of export trade came up for consideration. After referring to a number of English cases as also a decision of the Bombay High Court Municipal Corporation of the City of the Bombay vs. Secretary of State (ILR 29 Bombay 580), their Lordships held that if a party had acted on a representation made by the Government, the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution. The scheme that came up for consideration at the hands of their Lordships was not a scheme which could be said to be statutory and was in the nature of executive instructions and yet their Lordships came to the conclusion that if a party had been made to act on the faith of that scheme and had in pursuance thereof acted to its prejudice then the Government cannot be heard to say that such scheme being in the nature of executive instructions could be given a go by. In the present case also, if the petitioners had incurred expenditure and not only that, had entered into an agreement with the third party like the Rajasthan State Electricity Board, then the Government cannot be heard to say that the petitioners had no equities whatsoever in their favour. As I have already observed, it is not for this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution to determine the extent of equities and what should be the precise rights of the petitioners flowing therefrom, but the respondents have not at all consi-dered as to what the equities of the petitioners were in the matter before the Divisional Irrigation Officer stopped the supply of additional water to the petitioners. If the brackish water of the tubewell was not of any use to the respondents, as I have already observed they could refuse to accept that water, but all the same they cannot urge with justification that the petitioners should like wise relinquish their claim or that they have no claim whatsoever for the additional supply of water in view of what they had done in pursuance of the scheme of the Govt, for augmenting the water supply in the area. Granting that the brackish water could be of no use to the respondents on that score the agreement or contract, if it is properly arrived at, cannot be held to be illegal or against the provisions of any law. The only thing that remains to be considered is the effect of the clause in the agreement Ex. 1, that the present sanction was without any prejudice and if cancelled the petitioners shall not be entitled to any damages or reward. It may be open to the respondents to cancel the sanction for exchange of water but it has to be borne in mind that exchange of water for water is one thing, but if in addition to that the additional supply of water is for charges at usual rates like the normal supply of water to the lands, then so far as the stopping of the supply is concerned, that has to be in accordance with the provisions of the Act and the terms of the contract of supply. The additional supply for charges may not be referable to any written contract or agreement as such, but all the same it will be supply according to the rules at the prescribed rates ( vide rule 31 of the Rules ). As to what will be the equities of the petitioners in the event of the respondents not accepting the brackish water is a matter that has got to be determined by the respondents in the first instance and it is in the light of such determination that the respondents may either stop the additional supply or may suitable reduce it, but before doing so I do not think it is open to the respondents to unilaterally stop the additional supply altogether. Sec. 32 of the Act, on the one hand, lays down in clause (f) thereof that the State Government shall not be bound to supply any person with water except in accordance with the terms of a contract in writing but on the other it does not make any express provision for the authority who is to determine as to what is the supply to be made under the contract and in what contingencies it could be stopped. Clause (a) of sec. 32 however defines the powers of the Divisional Irrigation Officer and it is only under the conditions mentioned in sub-clause (a) that the Divisional Irrigation Officer could stop the supply of water to any water course. The section is, therefore, not happily worded. In these circumstances I am persuaded to think that where the question of stopping the supply arises on account of the conditions contained in clause (a), the matter has to be dealt with by the Divisional Irrigation Officer, but where the question arises on account of the terms of the agreement itself or there being no such agreement then in that event the matter has to be dealt with only administratively, but in doing so the respondents will not be free to act arbitrarily and they will have to determine as to what are the equities of the petitioners. I have already quoted the agreement Ex. 1 and if I may say so, that it is very sketchy and does not obviously contain all the terms and conditions. The admitted case of the parties was that for the additional supply of water the petitioners were paying for it at the usual rates. Therefore, what the petitioners are having as additional supply is not really exchange of brackish water for sweet water, but it is the taking of water for payment and the supply of brackish water is only a consideration that has prevailed with the State Government for making the additional supply of water available in lieu thereof. In view of the equities, therefore, this additional supply of water could be stopped only after the respondents State and its officers have come to the conclusion as to on the State not taking the brackish water how much water should be made available to the petitioners. This consideration of the additional source of water being available for determination of the supply of water is not wholly foreign to the scheme of the Rules. Rule 8 makes provision for it. At the time an additional area is adopted for irrigation it has to be seen as to what is the proportion of the culturable to the cultivated area, the quantity of water available for irrigation of the tract and the existing annual irrigation from masonry wells or other permanent and reliable sources. It is thus obvious that the additional supply has been agreed because of the petitioners' bringing into being a source of water on the land for augmenting the available supplies as per the scheme sponsored by the State Government. Therefore, in the light of the above discussion my answer to the questions formulated above is like this: - Reg. 1.- Normally it is not open to the Government or the Minister of State to deal with the question of stoppage of water supply and it is one for the Irrigation Officer to decide. However, in the present case the order of the Minister is not for stopping the water supply as such, but it is one for stopping the exchange of water. In matters which are not covered by clause (a) of sec. 32, but which arise from a written contract it will be open to the respondents to deal with such matters administratively and in doing so they have to keep in view the equities in favour of any party and cannot arbitrarily discontinue the supply. Reg. 2.- In view of the petitioners erecting a tubewell on their land and incurring expenditure for it in pursuance the scheme sponsored by of the State Government and further on account of the petitioners, entering into a commitment for taking the minimum electric supply from the Rajasthan State Electricity Board the petitioners have equities in their favour, but this court does not find convenient to determine the extent of such equities and it will be for the State Government or its officers to go into this question and come to a reasonable conclusion as to what are the equities in favour of the petitioners and then to decide how much quantity of additional water should be made available to the petitioners or in the circumstances no supply need be continued. Reg 3.- From what I have said above it follows that the Divisional Irrigation Officer could not have acted on the mere fiat of the Minister or the Government, He should have acted in the manner indicated above. If he was to act in terms of the contract or otherwise then his action should have been in accordance with clause (a) of sec. 32 of the Act or the agreement. In any case he has to exercise his own discretion in the matter.
(3.) NOW, it is common ground that the additional supply of water was agreed to be made because the petitioners were to supply brackish water from their tubewell to the State Government to be utilised in augmenting the supply of water in the distributory. The respondents are the best judge as to whether in view of increase in the salinity of water to be utilised either for agricultural or for human consumption beyond the limits, they should accept the supply of brackish water at all or accept it in any reduced quantity, but that alone will not relieve them from performing their part of the obligation namely, for supplying water at cost. Here also on account of the obvious difficulties I refrain from saying as to how long this agreement was to last, but as I have already observed the respondents have not at all examined the equities in favour of the petitioners. NOW, if the respondents do not accept the brackish water from the petitioners' well as they would be free to do, then naturally on equitable considerations the petitioners cannot insist on equivalent quantity of water as by not supplying brackish water to the respondents the petitioners are bound to save the expenditure for pumping out brackish water from their well. Here it is also difficult to decide in exercise of the extra ordinary jurisdiction of this Court as to what should be the actual quantity of additional supply, if the respondents do not accept any brackish water from the petitioners, but it does not appear that the Superintending Engineer accepting the position that brackish water be not taken from the petitioners ordered that 50 per cent of the additional supply be restored to the petitioners. This order came to be passed on 31-1-68 vide para 33 of the writ petition. The petitioners have not disputed that restoration of 50 per-cent of the supply maturing crops that they had sown before the water supply was once stopped. It is, therefore, just and proper that pending consideration of the equities of the petitioners on account of the Government's sponsoring the sinking of tubewells on certain terms the 50 per cent of the additional supply made to the petitioners as was done by the Superintending Engineer by his order dated 31-1-68 should be restored to the petitioners. For these reasons I allow the writ petition in part and hereby direct that the respondents shall restore 50% of the additional supply that was made to the petitioners on account of the agreement regarding the exchange of water from the tubewell, in case the respondents do not accept the brackish water from the petitioners' well. Respondents shall, however, be at liberty to enquire into the matter, determine the equities of the petitioners and then pass a suitable order against the continuance of supply or stoppage of this additional supply of water. The parties are, however, left to bear their own costs of this writ petition. .;