AMAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioners have filed the instant writ petition alleging therein that Annx. 1 to the writ petition passed by the Superintending Engineer, Irrigation Circle, Sri Cianganagar on 19. 10. 91 is per se illegal and without jurisdiction and the impugned order Annx. 1 has been passed without giving an opportunity of being heard under Sub-rule (3) of Rule 11 of the Rajasthan Irrigation and Drainage Rules, 1955 (for short "the Rules of 1955" ).

(2.) AFTER service of notice, the respondents have filed a detailed reply stating therein that the cultivators including the petitioners play mischief and lower down the cill level of the outlet by illegal means to increase pressure of water on cill level. In the case of the petitioners too, while checking was being made in 1991, it was found that the out-let is having H-2. 20 ft. against the required H-1. 39 ft, as per its latest approved datas. The aforesaid situation necessitated to set right the out let as per required datas to check its over drawal being managed illegally by the share-holders of Chak No. 10. Q/1 including the petitioners destroying the shape of the cill level of the out-let. It is also stated in the reply that against the order impugned passed under sub-rule (3) of Rule 11 of the Rules of 1955 there is an alternate remedy to file an appeal. Since no appeal has been filed against the impugned order Anx. 1 to the writ petition, therefore, the instant writ petition is liable to be dismissed on the ground of alternate remedy available to the petitioners.

(3.) I have given my thoughtful consideration to the rival submissions raised at the Bar. In my considered opinion, it is apparent from the averments made in Para 8 of the reply that material change has been introduced in the out-let without affording an opportunity of being heard to the petitioners against the principle of natural justice. It is stated by the respondents that the petitioners were not entitled to the opportunity of hearing. According to sub-rule (3) of Rule 11 of the Rules of 1955, a notice of hearing is to be given before introducing any material change or substantial change. Since by virtue of impugned order passed by respondent No. 3, material change has been introduced in the outlet, therefore, the impugned order Anx. 1 is liable to be quashed and the instant writ petition is liable to be allowed. There are positive words used under sub-rule (3) of Rule 11 of the Rules of 1955 providing to issue notices to the persons affected and to afford an opportunity of hearing to such persons, therefore, in my considered opinion, the impugned order passed by respondent No. 3 without issuing notices to the petitioners and without affording an opportunity of being heard is perse illegal and without jurisdiction.